Kimberly Mayhew Barksdale v. Commonwealth of Virginia ( 2021 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, AtLee and Senior Judge Haley
UNPUBLISHED
Argued by videoconference
KIMBERLY MAYHEW BARKSDALE
MEMORANDUM OPINION* BY
v. Record No. 0736-20-3 JUDGE WESLEY G. RUSSELL, JR.
JULY 20, 2021
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
John T. Cook, Judge
George W. Nolley for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Kimberly Mayhew Barksdale was convicted by a jury of her peers of murdering her
husband and the use of a firearm in the commission of that murder. On appeal, she asserts that her
speedy trial rights were violated in the proceedings below, and therefore, the trial court erred in
refusing to dismiss the indictments. Furthermore, she contends that the trial court abused its
discretion in granting the Commonwealth’s motion to nolle prosequi the initial murder charge.1
Finally, she contends that the trial court erred in denying a motion filed by her trial counsel for
leave to present evidence at trial of her insanity at the time of the offenses. Finding no error, we
affirm the judgment of the trial court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
After the nolle prosequi, Barksdale was reindicted for the murder and the murder
conviction arose out of that second indictment.
BACKGROUND2
Because the Commonwealth was the prevailing party below, we “view the record in the
light most favorable to the Commonwealth[,]” granting it any inferences that flow from that
view. Delp v. Commonwealth, 72 Va. App. 227, 230 (2020).
On June 5, 2017, the Campbell County Juvenile and Domestic Relations District Court
certified to the grand jury a charge of murder against Barksdale for the killing of her husband.3 On
June 12, 2017, Barksdale, by counsel, filed a notice of intent to present an insanity defense in
response to the charge. The grand jury subsequently indicted Barksdale for the murder charge and a
second charge of use of a firearm in the commission of a felony on July 10, 2017. Upon joint
motion of the parties, the “matter” was continued from the date of the indictment until July 27,
2017, for arraignment and for the purpose of setting a trial date.
Between July 26, 2017 and August 7, 2017, Barksdale filed motions for the appointment of
a special prosecutor, for a new judge, and for a change of venue. Rather than conduct the scheduled
July 27, 2017 hearing, the trial court considered the motions and denied them without a hearing. On
August 10, 2017, the trial court entered an order continuing the matter to a date certain for the
purpose of selecting a trial date.4 On August 29, 2017, the matter was set for a jury trial to
commence on October 31, 2017.
2
The issues in this appeal are largely procedural and do not involve a challenge to the
sufficiency of the evidence to establish that Barksdale committed the offenses for which she was
convicted. Accordingly, we recite the procedural history that is relevant to the issues raised in
this appeal and do not set out the facts relied upon by the Commonwealth to demonstrate
Barksdale’s guilt.
3
Barksdale was in custody at the time the charge was certified and remained so
throughout the proceedings.
4
The August 10, 2017 order sets an August 30, 2017 hearing for the selection of a trial
date. A subsequent order indicates that the hearing in which the initial trial date was selected
occurred on August 29, 2017.
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On September 20, 2017, Barksdale requested that the trial court continue the October 31,
2017 trial date. With no objection from the Commonwealth, the trial court granted Barksdale’s
motion for a continuance, vacated the October 31st trial date, and continued the matter to November
13, 2017 so that a new trial date could be selected.
In an order entered on November 15, 2017, the trial court, as a result of the agreement of the
parties, set the matter for a jury trial to commence on May 3, 2018. The order, which is endorsed by
counsel, expressly waives Barksdale’s “speedy trial rights under § 19.2-243 or any other
applicable provisions of the Code of Virginia for the period of time covered by this order.”
In April 2018, Barksdale once again sought to continue the trial date. By order entered
on April 17, 2018, the trial court granted Barksdale’s motion over the objection of the
Commonwealth. In the April 17, 2018 order, the trial court set a May date by which the parties
were to select a new trial date.
On May 4, 2018, the trial court entered an order continuing the matter to the newly selected
trial date of January 9, 2019. The order expressly notes that, by counsel, Barksdale “agree[d] to
waive speedy trial pursuant to § 19.2-243 or any other applicable provisions of the Code of
Virginia for the period of time covered by this order.”
In November 2018, Barksdale sought to be allowed to represent herself and raised the
possibility of withdrawing her previously noticed insanity defense. Finding it appropriate to do so,
the trial court granted Barksdale’s request to waive her right to counsel and to proceed pro se. The
trial court appointed her then trial counsel, Jim Childress, to serve as standby counsel. The trial
court also gave Barksdale a deadline by which to notify the Commonwealth whether she intended to
withdraw her previously noticed insanity defense. On November 28, 2018, and within the time
frame set by the trial court, Barksdale informed the trial court and counsel that she was
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“withdraw[ing her] insanity defense[,]” was tendering an ordinary plea of “not guilty[,]” and was
pursuing a defense based upon theories of “self-defense” and “defense of others[.]”
After Barksdale’s November 28, 2018 notice, both parties filed numerous motions in
advance of the jury trial then scheduled for January 9, 2019. Barksdale, acting pro se, moved to
suppress certain evidence, to recuse the trial judge, to recuse the Commonwealth’s Attorney, and for
a change of venue.
Because of the motions filed and the change in the defense asserted by Barksdale, the
Commonwealth sought to continue the trial from January 9, 2019. In support of its motion for a
continuance, the Commonwealth noted its “reasonable reliance” on Barksdale’s insanity defense
notice and that, given the change in defense, certain evidence required forensic examination that had
not previously required same. The Commonwealth also argued that, given the motions she had filed
and the arguments made to support them, it appeared that Barksdale was planning to “now . . . claim
that [the Commonwealth] cannot prove she shot her husband[,]” which the Commonwealth
argued “completely changed the strategy and required evidence” from what was needed when
Barksdale was relying on an insanity defense.5
The trial court denied Barksdale’s various motions and granted the Commonwealth’s
motion for a continuance of the January 9, 2019 trial date. Although the written order does not
reflect it, the Commonwealth conceded at a subsequent hearing that Barksdale objected to the
Commonwealth’s request for a continuance.
At a subsequent hearing, the trial date was set for March 27, 2019. In the interim, the
parties continued to file various motions. Ultimately, the Commonwealth moved to nolle
5
Although maintaining that it should not affect the analysis under the facts of this case,
Barksdale’s appellate counsel, with commendable candor, conceded at oral argument in this
Court that trying a case in which the defendant disputes having committed the killing or asserts
self-defense as a justification represents a very different case from one in which the defendant
pleads not guilty by reason of insanity.
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prosequi the murder indictment because of its concern that it may face a speedy trial argument
from Barksdale.6 Barksdale objected to the Commonwealth’s motion seeking a nolle prosequi
on speedy trial and due process grounds. The trial court granted the Commonwealth’s motion
seeking to nolle prosequi the murder charge,7 and the Commonwealth subsequently reindicted
her on the murder charge.
After reindictment, the parties continued to file motions regarding the case, including a
motion filed by Barksdale to dismiss the indictments against her based on alleged violations of
her speedy trial and due process rights.8 At a March 14, 2019 hearing, the trial court concluded
that Barksdale’s speedy trial rights had not been violated and denied her motion to dismiss the
indictments.
The parties continued to engage in extensive motions practice with a hearing on various
motions occurring on March 21, 2019. At that hearing, the parties engaged in a colloquy with
the trial court regarding the difficulties that Barksdale was encountering in representing herself.
The Commonwealth informed the trial court that, based on its conversations with Barksdale, she
was willing to waive speedy trial and forego representing herself if the trial court would appoint
two attorneys to represent her. In a series of questions, the trial court confirmed with Barksdale
that she agreed to waive speedy trial and forego representing herself so long as the court
appointed two lawyers to represent her.
6
The Commonwealth always has maintained that the March 27, 2019 trial date was
within the speedy trial period and that it sought the nolle prosequi out of an abundance of
caution.
7
Barksdale remained in custody on the firearms charge.
8
With the consent of the parties, all prior motions filed or pending and all prior rulings in
the case stemming from the initial murder indictment were adopted in the case stemming from
the second murder indictment.
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The trial court agreed to the proposal and immediately elevated Childress from his role as
standby counsel to counsel of record. Subsequently, the trial court appointed E. Gordon Peters as
Barksdale’s second attorney. The order appointing Peters also continued the matter to a date
certain, when a new trial date was to be selected. The order also noted that Barksdale had agreed to
waive her statutory speedy trial rights for the relevant time period.
On July 15, 2019, the trial court entered an order setting January 8, 2020 as the new trial
date. The order reflects that continuing the matter to that date was done as a result of a joint
“motion of the defendant and the Commonwealth[.]” The order further provides that Barksdale
“agree[d] to waive [her] speedy trial rights under § 19.2-243 or any other applicable provisions
of the Code of Virginia for the period of time” from January 9, 2019 through January 8, 2020.
The order is endorsed “[w]e ask for and agree to this” by the Commonwealth and both of
Barksdale’s attorneys.
On November 21, 2019, Barksdale’s counsel filed a notice of counsel’s intent to present
evidence of insanity. The Commonwealth objected, noting that the notice had not been provided
at least sixty days before trial as required by Code § 19.2-168. At the hearing on the issue,
Barksdale’s counsel acknowledged that Barksdale did not wish to pursue an insanity defense, but
that her counsel thought it was in her best interests to do so. Counsel also argued that the
Commonwealth would not be prejudiced if the trial court allowed her to present an insanity
defense because it previously had prepared for such a trial prior to Barksdale withdrawing her
insanity defense a year earlier. The Commonwealth countered that the jury trial was in
forty-eight days and that the intervening time period spanned the Thanksgiving and Christmas
holidays. The Commonwealth noted that, if the defense were allowed, it would need time to
speak with and prepare its expert witnesses to address an insanity defense, which might not be
possible given the failure of the defense to provide timely notice. Furthermore, the
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Commonwealth argued that, given all of the underlying circumstances, a continuance would
prejudice the Commonwealth.
After taking the matter under advisement, the trial court agreed with the Commonwealth
and precluded evidence of insanity from being presented. From the bench, the trial court
explained that it based its decision on the fact that the notice was not timely filed, the fact that
the Commonwealth would be prejudiced if forced to address the change in strategy at the last
minute, and its conclusion that a continuance was “not a good answer” given all that had
transpired previously.
The trial commenced as scheduled on January 8, 2020. The jury returned verdicts of
guilty on both charges. The trial court accepted the verdicts and entered judgment upon them
from which Barksdale now appeals.9
Specifically, Barksdale argues that the various delays in the proceeding below constituted
a violation of her speedy trial rights, and therefore, the trial court erred in refusing to dismiss the
indictments. In a related assignment of error, she contends that the trial court abused its discretion
in granting the Commonwealth’s motion to nolle prosequi the initial murder charge. Finally, she
contends that the trial court erred in denying a motion filed by her trial counsel for leave to present
evidence at trial of her insanity at the time of the offenses. We address these contentions below.
ANALYSIS
I. Standard of review
In evaluating Barksdale’s speedy trial claim, we “give deference to the trial court’s
findings of fact, but review the trial court’s ‘statutory interpretations and legal conclusions de
novo.’” Brown v. Commonwealth, 57 Va. App. 381, 390 (2010) (quoting Sink v.
Commonwealth, 28 Va. App. 655, 658 (1998)). The analysis requires that we “review . . . the
9
Yet another attorney, George Nolley, was appointed to represent Barksdale on appeal.
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whole record and . . . consider[] the trial court orders in the context of the record” in its entirety.
Id. at 389-90 (quoting Baity v. Commonwealth, 16 Va. App. 497, 503 (1993) (en banc)).
In challenging the trial court’s decision to grant the Commonwealth’s motion to nolle
prosequi the initial murder indictment, Barksdale attacks a decision that is committed “to the
discretion of the trial court.” Harris v. Commonwealth, 258 Va. 576, 583 (1999); see also
Code § 19.2-265.3. Accordingly, such claims are reviewed under the deferential abuse of
discretion standard.
Similarly, Code § 19.2-168, which imposes on a defendant a duty to provide timely
notice to the Commonwealth of his or her intent to present evidence of insanity, provides that, if
a defendant fails to comply with the notice requirement, “the [trial] court may in its discretion,
either allow the Commonwealth a continuance or, under appropriate circumstances, bar the
defendant from presenting such evidence.” (Emphasis added). Accordingly, we review
Barksdale’s challenge to the trial court’s decision to bar her from adducing evidence of insanity
under the deferential abuse of discretion standard.
II. Speedy trial and the nolle prosequi
In two assignments of error, Barksdale contends that her statutory speedy trial rights were
violated, and thus, the trial court erred in failing to dismiss the murder and use of a firearm in the
commission of a murder indictments. In a third assignment of error, she contends that the trial
court abused its discretion in granting the Commonwealth’s motion to nolle prosequi the initial
murder indictment because the motion was undertaken to deprive Barksdale of her speedy trial
rights.10
10
Virginia law is clear that, if granting the motion for a nolle prosequi were appropriate,
the speedy trial period on the murder charge stopped and began to run from day one once the
new indictment was obtained. See Harris, 258 Va. at 585 (“A new indictment is a new charge,
distinct from the original charge or indictment. ‘When an original indictment is supplanted by a
second indictment, the terms contemplated by [Code § 19.2-243] are to be counted from the time
-8-
At oral argument in this Court, Barksdale conceded that the assignments of error were
intertwined and that, if there were no statutory speedy trial violation, there was no reversible
error regarding the granting of the motion for nolle prosequi. Given this linkage and our
mandate to resolve cases on the “best and narrowest grounds available[,]” Delp, 72 Va. App. at
235 n.4 (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015)), we turn to Barksdale’s
statutory speedy trial claim as it relates to the first murder indictment.
Relied upon by Barksdale, Code § 19.2-243 is commonly referred to as Virginia’s speedy
trial statute. In pertinent part, it provides that
[w]here a district court has found that there is probable cause to
believe that an adult has committed a felony, the accused, if he is
held continuously in custody thereafter, shall be forever discharged
from prosecution for such offense if no trial is commenced in the
circuit court within five months from the date such probable cause
was found by the district court[.]
The five-month period referenced in the statute “translat[es] to ‘152 and a fraction days.’”
Herrington v. Commonwealth, 291 Va. 181, 186 n.6 (2016) (quoting Ballance v.
Commonwealth, 21 Va. App. 1, 6 (1995)).
The 152 and a fraction days period, however, is not absolute and is subject to being tolled
for multiple reasons, many of which are delineated in Code § 19.2-243. See Adkins v.
Commonwealth, 13 Va. App. 519, 521 (1992) (recognizing that Code § 19.2-243 specifies
circumstances in which the five-month period is extended and that “[t]he specified reasons for
excusable delay listed in the statute are not exclusive; other similar circumstances may excuse
delay in trying the accused within the designated time”). Of particular note here,
Code § 19.2-243(4) provides, in pertinent part, that any delay in trial caused
[b]y continuance granted on the motion of the accused or his
counsel, or by concurrence of the accused or his counsel in such a
of the second indictment.’” (alteration in original) (quoting Brooks v. Peyton, 210 Va. 318, 322
(1969))).
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motion by the attorney for the Commonwealth, or by the failure of
the accused or his counsel to make a timely objection to such a
motion by the attorney for the Commonwealth . . .
tolls the speedy trial clock and does not count against the “152 and a fraction days” in which a
defendant must be tried.
Regarding the initial murder indictment, the district court found probable cause to exist
on June 5, 2017. Accordingly, the speedy trial clock for the initial murder charge began running
on that day. Because Barksdale remained in custody the entire time, the Commonwealth had,
subject to any periods of tolling, five months from June 5, 2017 to try Barksdale on that charge.
On July 10, 2017, the grand jury returned indictments on the murder charge and returned
an additional indictment on the charge for use of a firearm in the commission of a felony.
Because this represented the initial probable cause determination on the use of a firearm charge,
the speedy trial clock on that charge began running on that date.11
The next scheduled event was a hearing set for July 26, 2017, at which the parties were to
select a trial date. That hearing was continued on the joint motion of the parties. The joint
continuance of the scheduling date, however, did not toll the speedy trial clock because an initial
trial date had yet to be selected. Turner v. Commonwealth, 68 Va. App. 72, 81 n.4 (2017)
(recognizing that when “no trial date had ever been set, Code § 19.2-243(4), which requires a
defendant to affirmatively object to a continuance requested by the Commonwealth, does not
apply to toll the running of the speedy trial clock”). Accordingly, the speedy trial time period
continued to run unabated.
11
Because the speedy trial period on the use of a firearm charge began running more than
a month after the speedy trial period began running on the initial murder charge, a trial on the use
of a firearm charge is, by definition, timely if a trial on the initial murder charge is or would have
been timely. Given our ultimate conclusion that a trial on the initial murder indictment would
have been timely, we do not need to conduct a separate speedy trial analysis for the use of a
firearm charge.
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On August 29, 2017, the matter was set for a jury trial to commence on October 31, 2017.
The scheduled Halloween trial date was 148 days after the district court found probable cause, and
thus, was within the speedy trial period. If the matter had been tried as scheduled, there would have
been no speedy trial issue.
Of course, trial did not take place on October 31, 2017 as scheduled. Critical to the speedy
trial analysis is that the scheduled trial did not take place because Barksdale requested that the trial
date be continued. Specifically, on September 20, 2017, she requested and was granted a
continuance of the trial date. Because the continuance was requested by Barksdale, the speedy trial
clock was tolled as of September 20, 2017, see Code § 19.2-243(4), a period of 107 days after the
initial probable cause determination. Given that the trial was continued at Barksdale’s request, the
speedy trial clock, absent intervening circumstances, would have remained tolled until the
rescheduled November 13, 2017 trial date.
Circumstances did intervene. Trial did not occur on November 13, 2017 because the parties
requested and were granted numerous continuances and multiple trial dates were set, culminating in
a January 9, 2019 trial date being selected. Because all of the continuance orders entered between
November 2017 and January 2019 reflect that the continuances were requested by Barksdale, were
the result of a joint motion, and/or that Barksdale waived speedy trial for the period of the
continuance, the speedy trial clock regarding the initial murder charge remained tolled at 107 days.
In November 2018, Barksdale elected to represent herself and withdrew the insanity claim
upon which her defense had rested since June 12, 2017. Given the significant change in the focus of
the case, the Commonwealth sought a continuance of the January 9, 2019 trial date, which the trial
court granted on January 4, 2019 over Barksdale’s objection.
Barksdale contends that, because the January 9, 2019 trial date was continued over her
objection, the speedy trial clock began to run again as of the date of the continuance. The
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Commonwealth counters that, because the continuance was necessitated by the numerous motions
filed and the withdrawal of the insanity defense by Barksdale, the continuance should be charged to
her despite her objection. See, e.g., Turner, 68 Va. App. at 79 (recognizing that a continuance
necessitated by conduct of the defendant, such as filing complex, last-minute motions, is not
chargeable to the Commonwealth); Stephens v. Commonwealth, 225 Va. 224, 233-34 (1983).
Given subsequent events, we need not and do not resolve this dispute.12 The July 15,
2019 order setting January 8, 2020 as the trial date expressly reflects that continuing the matter to
that date was done as a result of a joint “motion of the defendant and the Commonwealth[.]” The
order further provides that Barksdale “agree[d] to waive [her] speedy trial rights under § 19.2-243
or any other applicable provisions of the Code of Virginia for the period of time” from January 9,
2019 through January 8, 2020. Thus, even if we were to determine that the continuance caused
by Barksdale’s change in strategy otherwise would be charged to the Commonwealth, only the
period between the granting of the continuance on January 4, 2019 until the January 9, 2019 date
referenced in the order, could be charged to the Commonwealth. Adding those few days to the
107 days that already had run still left well over a month in which the Commonwealth could
timely commence trial on the original murder indictment.
The conclusion that the January 8, 2020 trial commenced within the speedy trial time
period even if that period was calculated from the initial finding of probable cause that led to the
initial murder indictment resolves much of Barksdale’s appeal. Because the speedy trial clock
began running on the use of the firearm charge after the finding of probable cause that led to the
12
As noted above, our mandate is to resolve cases on the “best and narrowest grounds
available.” Delp, 72 Va. App. at 235 n.4 (quoting Swann, 290 Va. at 196). Accordingly, we do
not address the Commonwealth’s arguments that the continuance is attributable to Barksdale
because it was necessitated by her eleventh-hour change in strategy or its contention that,
pursuant to Harris, 258 Va. at 585, the speedy trial analysis on the murder charge only runs from
the second indictment because of the granting of the motion to nolle prosequi the initial
indictment.
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initial murder indictment, it is beyond dispute that the trial on the use of the firearm charge was
commenced timely.
Barksdale’s challenge to the granting of the motion to nolle prosequi the initial murder
indictment is also resolved by this conclusion. After all, the premise of Barksdale’s challenge,
that the Commonwealth obtained the nolle prosequi to avoid its speedy trial obligations, is not
merited because the trial was timely regardless. Even Barksdale recognizes that this is so,
conceding at oral argument in this Court that, if there were no statutory speedy trial violation,
there was no reversible error regarding the granting of the motion for nolle prosequi.
Accordingly, the trial court did not err in refusing to dismiss the indictments or in granting the
motion to nolle prosequi.
III. Notice of insanity evidence
In her remaining assignment of error, Barksdale argues that the trial court abused its
discretion in ruling that she was barred from introducing evidence at trial of her alleged insanity
at the time of the offense.13 We disagree.
A defendant who wishes to introduce evidence of insanity at the time of the offense must
file a notice in compliance with Code § 19.2-168. That section provides, in pertinent part, that
[i]n any case in which a person charged with a crime intends (i) to
put in issue his sanity at the time of the crime charged and (ii) to
present testimony of an expert to support his claim on this issue at
his trial, he, or his counsel, shall give notice in writing to the
attorney for the Commonwealth, at least 60 days prior to his trial,
of his intention to present such evidence. . . . In the event that such
notice is not given, and the person proffers such evidence at his
trial as a defense, then the [trial] court may in its discretion, either
allow the Commonwealth a continuance or, under appropriate
circumstances, bar the defendant from presenting such evidence.
13
In both the trial court and on appeal, Barksdale’s challenge to the trial court’s ruling
barring evidence of insanity presumes that any evidence of insanity she sought to offer required
compliance with Code § 19.2-168’s notice requirement. Given the question before us, all
references in this opinion to evidence of insanity shares that premise—that all evidence of
insanity sought to be offered was subject to the notice provision of Code § 19.2-168.
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Because the statute expressly grants a trial court the discretion to “bar the defendant from
presenting . . . evidence” of insanity if the defendant fails to comply with the statute’s notice
requirement, we review the trial court’s refusal to allow Barksdale to present such evidence at
trial under the deferential abuse of discretion standard.
The abuse of discretion standard “rests on the venerable belief that the judge closest to
the contest is the judge best able to discern where the equities lie.” Hamad v. Hamad, 61
Va. App. 593, 607 (2013). It presumes that “for some decisions, conscientious jurists could
reach different conclusions based on exactly the same facts—yet still remain entirely
reasonable.” Thomas v. Commonwealth, 62 Va. App. 104, 111 (2013). Accordingly, we must
“show enough deference to a primary decisionmaker’s judgment that [we do] not reverse merely
because [we] would have come to a different result in the first instance.” Lawlor v.
Commonwealth, 285 Va. 187, 212 (2013) (quoting Evans v. Eaton Corp. Long Term Disability
Plan, 514 F.3d 315, 322 (4th Cir. 2008)). Under this standard, “we do not substitute our
judgment for that of the trial court. Rather, we consider only whether the record fairly supports
the trial court’s action.” Grattan v. Commonwealth, 278 Va. 602, 620 (2009) (quoting Beck v.
Commonwealth, 253 Va. 373, 385 (1997)). “Only when reasonable jurists could not differ can
we say an abuse of discretion has occurred.” Thomas v. Commonwealth, 44 Va. App. 741, 753,
adopted upon reh’g en banc, 45 Va. App. 811 (2005). Viewed through this lens, it is clear that
the trial court did not err in refusing to allow Barksdale to adduce evidence of insanity at trial.
Although Barksdale’s counsel initially filed notice of his intention to introduce insanity evidence
on June 12, 2017, that notice was withdrawn and repudiated by Barksdale in November 2018
when she began representing herself and formally withdrew the insanity defense. During the
multitude of motions and other occurrences over nearly a year, the defense consistently
maintained this position, never suggesting that it desired to put on evidence of insanity. This
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position was maintained while Barksdale was representing herself, after Childress resumed his
duties as counsel, and for months after Peters was appointed to serve as co-counsel.
Only in November 2019, a mere forty-eight days before trial, did Barksdale’s counsel
again raise his desire to present evidence of insanity.14 Faced with the untimely notice which
sought, yet again, to radically alter the trial at the eleventh hour, the trial court conducted a
hearing and reviewed the options available to it under Code § 19.2-168.
Given that even Barksdale concedes that a case in which a defendant argues that he or she
is not guilty by reason of insanity is a very “different” case from one in which other defenses are
presented, the trial court reasonably concluded that it would not be appropriate to simply allow
Barksdale to introduce such evidence at the January 8, 2020 trial.15 Similarly, given the history
of the case, the trial court reasonably rejected continuing the matter yet again to allow the
Commonwealth to prepare for the defense’s change in strategy. After all, the offense had
occurred in 2016 and the matter had been continued multiple times at the request of Barksdale or
arguably as a result of her prior radical change in defense strategy. Given the time elapsed and
this history, the trial court reasonably concluded that it was inappropriate to continue the matter
yet again to accommodate yet another shift in defense strategy.
The trial court’s decision to reject counsel’s late request to introduce evidence of insanity
is further supported by the fact that it was counsel and not Barksdale who wished to do so. As
both Barksdale and her counsel made clear when the issue was raised, Barksdale objected to any
On appeal, Barksdale does not challenge the trial court’s finding that the notice was
14
untimely; rather, she contends that the trial court should have allowed her to present such
evidence despite her failure to file a timely notice.
15
The differences include the preparation and calling of expert witnesses to address the
issue raised by the insanity evidence. Scheduling trial appearances by and preparing such
experts cannot be done at the drop of a hat. Accordingly, the fact that the Commonwealth may
have been prepared to try such a case in November 2018 before Barksdale withdrew the defense
does not mitigate the failure to provide a timely notice for a trial in January 2020.
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attempt to claim that she was insane at the time of the offenses. Her rejection of this defense
strategy was consistent and particularly salient given that she not only was competent to stand
trial, but also had been found competent to represent herself and had done so for an extended
period of time. Given the totality of the circumstances, the trial court’s decision to bar the
evidence given the failure to comply with Code § 19.2-168 was a reasonable one, and therefore,
the trial court did not abuse its discretion in prohibiting such evidence.
CONCLUSION
For the foregoing reasons, we conclude that the trial court did not err in refusing to
dismiss the indictments, in granting the motion to nolle prosequi the initial murder indictment, or
in refusing to allow Barksdale to introduce evidence of insanity at trial. Accordingly, the
judgment of the trial court is affirmed.
Affirmed.
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