COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and

Senior Judge Overton

Argued at Chesapeake, Virginia

DERRICK EDWARD HELMICK

OPINION BY

v. Record No. 1430-01-1 CHIEF JUDGE JOHANNA L. FITZPATRICK

AUGUST 6, 2002

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Patricia L. West, Judge

Richard C. Clark, Senior Assistant Public

Defender, for appellant.

Eugene Murphy, Assistant Attorney General

(Jerry W. Kilgore, Attorney General, on

brief), for appellee.

Derrick Edward Helmick (appellant) appeals his conviction

by a jury of first degree murder in violation of Code 18.2-32.

On appeal, he contends the trial court erred in failing to (1)

declare a mistrial to allow his counsel to withdraw and testify

on his behalf, (2) exclude testimony from a witness of

appellant's harassment of that witness, (3) instruct the jury on

assault and battery, and (4) instruct the jury on accident as a

defense. Finding no error, we affirm.

I. BACKGROUND

Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences

fairly deducible therefrom. See Juares v. Commonwealth, 26

Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). However, "[w]hen

reviewing a trial court's refusal to give a proffered jury

instruction, we view the evidence in the light most favorable to

the proponent of the instruction." Commonwealth v. Vaughn, 263

Va. 31, 33, 557 S.E.2d 220, 221 (2002) (citing Blondel v. Hays,

241 Va. 467, 469, 403 S.E.2d 340, 341 (1991)).

So viewed, the evidence established that on May 30, 2000

appellant was caring for his nine-week-old child, Dawn Marie

(the child), at the home of Darrell and Lisa Ogden, his sister

and brother-in-law. While in appellant's care, the child

suffered serious injuries and died in the hospital two days

later.

Appellant gave several versions of the manner the child was

injured. He initially told Lisa Ogden that as he put the child

to bed, she "spit up." While he was holding her with one arm

and attempting to change her clothes, he dropped her. At the

hospital, appellant told a social worker that after the child

threw up, he cleaned her and noticed she was having difficulty

breathing and dropped her three and one-half feet onto the

floor. He also said that a bruise on the child's head was

"caused when he put her in the baby swing."

Later, at the hospital, appellant told Detective J.R.

Pickell (Pickell) that the child had been in her crib when he

found her and that she had thrown up. He placed both hands

under her, but when he turned to put her on the bed behind him,

she moved and fell out of his hands onto the floor. When he put

the child on the bed, she went limp and stopped breathing. The

police found the floor of the house to be carpeted with a

padding underneath.

On the second day the child was in the hospital and still

on life support, appellant telephoned Vicki Brewer (Brewer), a

woman in Ohio he recently met on the internet. He told her that

he had "propped [the child] on the couch giving her a bottle,"

and she had rolled off the couch. When Brewer said, "nine week

old babies can't roll," he stated, "[w]ell, she did." Shortly

thereafter, appellant put a note in Darrell Ogden's bible

stating that he relinquished sole guardianship of the child to

his mother and left to meet Brewer. Appellant remained with

Brewer in Ohio for six days until she told him to leave. He

refused to leave and "showed up at [Brewer's] work to harass

[her]" and "wouldn't go away." Brewer called the police, and

appellant was arrested.

While incarcerated in Ohio, Pickell met with him again.

Appellant gave a different version of how the child sustained

her injuries. He stated he picked the child up, dropped her

onto the floor and she stopped breathing. He panicked, and when

he picked her up to take her to the kitchen to throw water on

her face, she fell out of his arms. Pickell stated that he did

not believe appellant's story, and appellant admitted that when

the child had "spit up," he picked her up and shook her. While

he was shaking her, he let go and dropped her. Appellant also

admitted it was possible that the child hit her head on the side

of the crib.

In a later videotaped statement, appellant admitted shaking

the child out of frustration and dropping her. He stated, "I

grew up in an anger-filled family. And I guess it just

completely built up inside of me until it exploded."

The medical examiner, Dr. Elizabeth Kinnison (Kinnison),

found that the child had "brain damage enough to cause death."

The cause of death was blunt force injuries which required an

"extreme" amount of force. She opined that the amount of force

necessary to cause the child's injuries would not be consistent

with a fall from an adult level height. Kinnison also noted

that the nine-week-old child had suffered an earlier injury to

her head.

II. MOTION TO WITHDRAW

At trial, during the testimony of Darrell Ogden,

appellant's counsel moved for a mistrial because he thought it

necessary for him to withdraw as counsel and testify on

appellant's behalf. The basis for his motion was that Lisa and

Darrell Ogden told him they wanted appellant to give them his

car and they were upset when he refused to do so. Thus, it was

necessary for him to withdraw and testify about their "bias."

Counsel later admitted in his proffer of proposed testimony that

he would only be able to show that Lisa Ogden was upset. Lisa

Ogden testified and during cross-examination stated that she

thought the car should be given to her mother because she gave

appellant the money to buy it. She did not deny that she was

upset, but did not remember making that statement to counsel.

The trial court stated: "Mrs. Ogden did not deny that she

was upset about [appellant's] failure to sign the car over to

them. So you're not precluded from making that [bias] argument

to the jury . . . . Your testimony is not necessary and I am

not going to declare a mistrial in this matter." We agree with

this analysis.

"[A] decision to permit counsel to withdraw mid-trial rests

with the sound discretion of the trial court." Fisher v.

Commonwealth, 26 Va. App. 788, 794, 497 S.E.2d 162, 165 (1998).

In the instant case, the trial court did not abuse its

discretion by refusing to allow appellant's counsel to withdraw

to become a witness in the case. The testimony proffered by

counsel did not concern a disputed issue, was not material, and

was not timely made.

It was undisputed that the Ogdens wished to have appellant

sign his ten-year-old Ford Taurus over to them and were unhappy

when he failed to do so. Appellant's counsel's proffer of his

testimony added nothing. Additionally, the proffered testimony

was collateral to any issue in the murder case.

A fact is wholly collateral to the main

issue if the fact cannot be used in evidence

for any purpose other than for

contradiction. Evidence of collateral

facts, from which no fair inferences can be

drawn tending to throw light upon the

particular fact under investigation, is

properly excluded for the reason that such

evidence tends to draw the minds of the jury

away from the point in issue, to excite

prejudice and mislead them.

Seilheimer v. Melville, 224 Va. 323, 327, 295 S.E.2d 896, 898

(1982) (emphasis removed) (internal citations omitted). Lisa

Ogden gave no direct testimony about the death of her niece.

Indeed, her factual recitation followed appellant's most

exculpatory version of the events.

Lastly, counsel was aware of the potential "bias" issue

before trial and delayed addressing it until mid-trial. The

trial court found as follows: "It was always a bias issue. If

you are truly saying that these folks have a reason to lie

against your client because he didn't sign over a car to them,

then this was always an issue, not because it was brought up

today." See Terrell v. Commonwealth, 12 Va. App. 285, 403

S.E.2d 387 (1991) (motion to withdraw filed two days before

trial deemed untimely). The trial court did not abuse its

discretion in refusing to allow counsel to withdraw.

III. VICKI BREWER'S TESTIMONY

Appellant next contends the trial court erred in allowing

Brewer to testify that appellant harassed her at her workplace

because this incident was probative of no issue in the murder

case and was prejudicial. We agree the trial court erred in

admitting this portion of Brewer's testimony, but find the error

to be harmless.

"[A] non-constitutional error is harmless 'when it plainly

appears from the record and the evidence given at the trial that

the parties have had a fair trial on the merits and substantial

justice has been reached.'" Lavinder v. Commonwealth, 12

Va. App. 1003, 1005-06, 407 S.E.2d 910, 911 (1991) (en banc)

(quoting Code 8.01-678) (emphasis removed).

Consequently . . . a criminal conviction

must be reversed unless "it plainly appears

from the record and the evidence given at

the trial that" the error did not affect the

verdict. An error does not affect a verdict

if a reviewing court can conclude . . .

that, had the error not occurred, the

verdict would have been the same.

Id. at 1006, 407 S.E.2d at 911; see Galbraith v. Commonwealth,

18 Va. App. 734, 743-44, 446 S.E.2d 633, 639 (1994).

Factors . . . important to the harmless

error inquiry are the importance of the

witness' testimony in the prosecution's

case, whether the testimony was cumulative,

the presence or absence of evidence

corroborating or contradicting the testimony

of a witness on material points, the extent

of cross-examination otherwise permitted

and . . . the overall strength of the

prosecution's case.

Maynard v. Commonwealth, 11 Va. App. 437, 448, 399 S.E.2d 635,

641-42 (1990) (en banc) (internal citations omitted). If it

"plainly appears" that the Commonwealth's case was no "less

persuasive" if the disputed evidence had been excluded, the

error is harmless. Galbraith, 18 Va. App. at 744, 446 S.E.2d at

639.

Brewer testified that appellant came to her home shortly

after the child was injured and stayed with her for several

days. She asked him to leave and in response to a

Commonwealth's question, stated: "Well, I thought everything

would be alright [sic] until he - you know, he showed up at my

work to harass me." He came to see her twice on her work breaks

and when he would not leave, she called the police.

Although Brewer's testimony describing her encounter with

appellant at her workplace was irrelevant, the nature of the

testimony was limited and not inflammatory, and its effect on

the jury was minimal at best. Other evidence in the case

provided overwhelming proof of appellant's guilt. Appellant

confessed that he "exploded," shook and dropped his

nine-week-old child. He left his child in the hospital on life

support to visit Brewer in Ohio and showed no concern for the

child's welfare while there. The mere reference to an

unspecified incident of harassment was harmless under the facts

of this case.

IV. REFUSAL TO GIVE AN ASSAULT AND BATTERY INSTRUCTION

Appellant next contends the trial court erred by failing to

give an instruction on assault and battery. He argues that his

statement, that he only intended a slight bodily harm when he

shook the child, supports this theory. We disagree.

"When reviewing a trial court's refusal to give a proffered

jury instruction, we view the evidence in the light most

favorable to the proponent of the instruction." Vaughn, 263 Va.

at 33, 557 S.E.2d at 221 (citing Blondel, 241 Va. at 469, 403

S.E.2d at 341).

"If the evidence is sufficient to support 'a conviction of

the crime charged, and there is no independent evidence

warranting a conviction [of the lesser-included offense], an

instruction on the lesser-included offense need not be given.'"

Id. at 36, 557 S.E.2d at 222-23 (quoting Guss v. Commonwealth,

217 Va. 13, 14, 225 S.E.2d 196, 197 (1976)).

"More than a scintilla of evidence is necessary to support

a lesser-included offense instruction requested by the

defendant." Leal v. Commonwealth, 37 Va. App. 525, 533, 559

S.E.2d 874, 878 (2002) (citing Commonwealth v. Donkor, 256 Va.

443, 445, 507 S.E.2d 75, 76 (1998)).

In the instant case, no credible evidence supports

appellant's assault and battery instruction request. He

admitted he shook the nine-week-old child while in a rage. Even

assuming he killed his child inadvertently, these actions would

properly be classified as manslaughter because a death resulted.

When the child died as the result of appellant's "assault

and battery," the death elevated the crime to at least

involuntary manslaughter. Thus, the trial court did not err in

failing to give an assault and battery instruction.

V. REFUSAL TO GIVE AN ACCIDENT INSTRUCTION

Lastly, appellant contends the trial court erred in

refusing to instruct the jury that the burden was on the

Commonwealth to prove the killing was not accidental.

Appellant's contentions are without merit as the jury was

properly instructed on the Commonwealth's burden of proof.

"[J]ury instructions are only proper if supported by the

evidence, and . . . more than a scintilla of evidence is

necessary to support [an] . . . instruction requested by the

defendant." Donkor, 256 Va. at 445, 507 S.E.2d at 76.

"[The Supreme Court has] previously held that, although the

jury's ability to reject evidence will support an acquittal, the

ability to reject evidence does not supply the affirmative

evidence necessary to support a jury instruction." Vaughn, 263

Va. at 37, 557 S.E.2d at 223 (citing Donkor, 256 Va. at 445, 507

S.E.2d at 76).

"Where the evidence warrants, an accused is entitled to an

instruction presenting his theory of accidental killing as a

defense." Martin v. Commonwealth, 218 Va. 4, 6, 235 S.E.2d 304,

305 (1977) (citing Jones v. Commonwealth, 196 Va. 10, 15, 82

S.E.2d 482, 485 (1954)).

In the instant case, no credible evidence warranted an

instruction on accidental killing.

The trial court found

the evidence was presented to the jury, and

it was uncontradicted, that he repudiated

his original statements that this was an

accident totally; and his final statement

was that he shook the child and then dropped

the child. The killing may have been

accidental, and I think you've presented

sufficient evidence to make that argument

that he didn't intend for the child to die;

but as far as the child rolling off the

couch and hitting its head and that's the

accident that caused this death, I don't

think that the evidence is in; and I don't

think the jury could credibly find that.

In addition to appellant's statements, Kinnison, the

medical examiner, testified that the child died from blunt force

injuries which would have required an "extreme" amount of force.

She stated that the amount of force necessary to cause the

injuries would not be consistent with a fall from an adult level

height. No evidence, including appellant's statements, his

actions while the child was in the hospital and the physical

findings of the medical examiner, supplies any basis for a

theory of accidental death. Accordingly, in the absence of any

credible evidence to support an instruction on accident, we

affirm the trial court's refusal of the instruction.

For the foregoing reasons, we affirm.

Affirmed.

Appellant contends Supreme Court Rule 3.7, Part 6 11,

mandates that the trial court allow his withdrawal. This

contention is without merit. This Court and the Supreme Court

of Virginia have questioned the propriety of equating the force

of a disciplinary rule with that of decisional or statutory law

in state court proceedings. See Fisher, 26 Va. App. at 794, 497

S.E.2d at 165; see also Shuttleworth, Ruloff, and Giordano, P.C.

v. Nutter, 254 Va. 494, 498, 493 S.E.2d 364, 366 (1997).

Notwithstanding this concern, however, a decision to permit

counsel to withdraw mid-trial rests within the sound discretion

of the trial court.

6

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