Zelenak v. Commonwealth

475 S.E.2d 853, 23 Va. App. 259
CourtCourt of Appeals of Virginia
DecidedOctober 22, 1996
DocketRecord 1816-94-3
StatusPublished
Cited by6 cases

This text of 475 S.E.2d 853 (Zelenak v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zelenak v. Commonwealth, 475 S.E.2d 853, 23 Va. App. 259 (Va. Ct. App. 1996).

Opinions

[262]*262BENTON, Judge.

Katina Lynn Zelenak was convicted of attempted robbery, use of a firearm during the attempted robbery, and conspiracy to commit robbery. She contends the trial judge erred by refusing to allow expert testimony concerning her duress defense, refusing to admit the statement of an alleged co-conspirator, and permitting the Commonwealth to use a competency report to impeach her. For the reasons that follow, we reverse her convictions and remand for a new trial.

I.

At 2:00 a.m., a manager of a pizza restaurant was making a night deposit at a bank when a man with a gun approached him. After the gunman said, “Hold it,” the manager jumped into his vehicle and called the police on his cellular telephone. A vehicle then entered the bank parking lot, continued to the back of the bank where the gunman had run, and sped away. As the manager followed the automobile, the police arrived and stopped the automobile. The police arrested the driver, Katina Zelenak, and the two men with her, William Smith, the gunman, and Paul Morehead. Zelenak and the two men were indicted for attempted robbery, use of a firearm during the attempted robbery, and conspiracy to commit robbery.

On motion of Zelenak’s counsel prior to trial, the trial judge ordered Zelenak to undergo a psychological analysis to determine her competency to stand trial. Zelenak also filed a notice of intent to present an insanity defense. Later, after Zelenak withdrew the notice of intent to present an insanity defense, the Commonwealth moved in limine to prohibit the testimony of Gwynn Polidoro, a licensed clinical social worker. The Commonwealth argued that Polidoro’s testimony would be offered by Zelenak as proof of an ultimate issue of fact because it addressed Zelenak’s state of mind at the time of the offense. Defense counsel responded that Polidoro would testify that Zelenak suffers from multiple personality disorder, a dissociative disorder that resulted from traumatic stress, [263]*263which made her “susceptible to duress.” The trial judge deferred ruling on the motion until trial.

Zelenak’s defense at trial was that she participated in the crimes out of fear that Morehead would kill her or a member of her family. At trial, the judge granted the Commonwealth’s motion to exclude Polidoro’s testimony and then allowed defense counsel to proffer the expert’s testimony. At the conclusion of the evidence, the jury convicted Zelenak on all three charges.

II.

“The common law defense of duress excuses acts which would otherwise constitute a crime, where the defendant shows that the acts were the product of threats inducing a reasonable fear of immediate death or serious bodily injury.” Pancoast v. Commonwealth, 2 Va.App. 28, 33, 340 S.E.2d 833, 836 (1986).

“To support a defense of duress, a defendant must demonstrate that [her] criminal conduct was the product of an unlawful threat that caused [her] reasonably to believe that performing the criminal conduct was [her] only reasonable opportunity to avoid imminent death or serious bodily harm, either to [herjself or another.”

Daung Sam v. Commonwealth, 13 Va.App. 312, 324, 411 S.E.2d 832, 839 (1991).

Defense counsel claimed that Zelenak’s mental state rendered her susceptible to domination and intimidation. Arguing that it concerned an ultimate issue in fact, the Commonwealth opposed admission of the expert’s testimony. In his ruling, the trial judge did not explicitly state why he refused to allow the testimony.

An expert witness “may not express an opinion as to the ultimate issue to be determined by the trier of fact.” Price v. Commonwealth, 18 Va.App. 760, 764, 446 S.E.2d 642, 645 (1994). Contrary to the Commonwealth’s assertion, however, the proffer did not imply that the testimony was offered [264]*264to establish a diminished capacity defense, see Jenkins v. Commonwealth, 244 Va. 445, 456, 423 S.E.2d 360, 367 (1992), cert. denied, 507 U.S. 1036, 113 S.Ct. 1862, 123 L.Ed.2d 483 (1993), or was intended to be a comment upon Zelenak’s credibility. See Coppola v. Commonwealth, 220 Va. 243, 252-53, 257 S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1069, 62 L.Ed.2d 788 (1980).

To determine if Zelenak acted under duress, the jury had to determine if Zelenak “reasonably feared that [her] refusal to participate in the [crimes] ... would have resulted in imminent death or serious injury to [her] family.” Daung Sam, 13 Va.App. at 324, 411 S.E.2d at 839 (1991)(emphasis omitted). The proffer by defense counsel reveals that the expert would have provided information concerning Zelenak’s past experiences and overall mental condition relevant to that inquiry. Defense counsel proffered, in part, as follows:

If [Ms. Polidoro] was to testify she would observe that Mrs. Zelenak has revealed abuse and exposure to violence from the time she was a child unto her arrest. That she has a series of intense, but unstable relationships. That she has repeatedly looked for a rescuer for someone who would love her and has repeatedly failed to protect herself as an adult.... She has a reported sense of helplessness and lack of initiative saying she has difficulty making decisions. In her most recent relationship with [Morehead], she became very attached to him almost immediately. She has revealed mixed, revealed episodes of violent sexual exploration, humiliation mixed with feelings of specialness____ She idolizes him on one point and seems to be very afraid of him on the other. In my opinion, she got to the point where she believed escape from him or disobedience would result in her death or death of a family member.

This testimony would have explained circumstances and factors from which a jury might have found a basis to believe Zelenak was susceptible to intimidation and manipulation. Such a finding would have tended to establish her defense of duress. Although the expert could not have testified that Zelenak actually feared Morehead during the commission of [265]*265the offenses or that her fear was reasonable, the majority of the proffer concerned Zelenak’s overall mental condition and past experiences related to manipulation and intimidation. Such evidence could have provided a basis for the jury to believe that Zelenak acted because of a reasonable fear of Morehead.

To prove duress, the fear must be well grounded. Pancoast, 2 Va.App. at 33, 340 S.E.2d at 836. See also State v. Ellis, 232 Or. 70, 374 P.2d 461, 466 (1962). In Virginia, appellate courts have reviewed the defense of duress in criminal cases relatively few times. However, an accused must also prove a reasonable fear to successfully assert the defense of duress.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Zelenak v. Commonwealth
487 S.E.2d 873 (Court of Appeals of Virginia, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
475 S.E.2d 853, 23 Va. App. 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zelenak-v-commonwealth-vactapp-1996.