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Pearson v. Commonwealth — Court of Appeals opinion, 2002-22-1

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- 4 - duces tecum a certified copy of the protective order denying Berry contact with his son. Counsel for Pearson initially contended that the protective order was relevant as evidence of Berry’s character in support of Pearson’s claim that he shot Berry in self-defense. In response, the Commonwealth moved to quash the subpoena alleging that the protective order would be both inappropriate and inadmissible as character evidence. The trial court subsequently granted the Commonwealth’s motion to quash the subpoena. At trial, over Pearson’s objection, the Commonwealth introduced in evidence a video recording of Pearson’s first interaction with Berry on December 27, 2019, which the Commonwealth had redacted to exclude any mention of the protective order against Berry. Pearson further objected to the redaction based, in part, on his contention that the protective order was “probative and relevant and material.” Pearson also clarified that he did not intend to use the protective order as evidence of Berry’s character, but rather to show “the quantum of evidence that Sergeant Pearson had when he did what he did.” The Commonwealth also entered in evidence statements made by Berry claiming to have sole custody of his son. In response, Pearson renewed his request to permit the protective order to be entered into evidence, claiming that the Commonwealth had, by entering Berry’s claims to having sole custody of his son, opened the door to permit impeaching Berry’s statements through entry of the protective order that refuted those claims. The trial court again denied Pearson’s request, holding that since Berry’s credibility was not at issue, the protective order was not relevant. The Commonwealth subsequently rested its case-in-chief, and Pearson moved to strike the Commonwealth’s case. The trial court denied his motion. During Pearson’s case-in-chief, he called Newport News Master Police Officer Wilbur O’Berry (“Officer O’Berry”) as an expert witness on the use of tasers and taser training. In addition to educating the jury about tasers and their use, Officer O’Berry explained that he had analyzed the
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