Malcolm Larice Williams v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 29, 2000
• Docket: 1928981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Lemons and Frank Argued at Norfolk, Virginia

MALCOLM LARICE WILLIAMS MEMORANDUM OPINION * BY v. Record No. 1928-98-1 JUDGE ROBERT P. FRANK FEBRUARY 29, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge

Andrew G. Wiggin (Edward W. Webb, Assistant Public Defender, on brief), for appellant.

Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Malcolm Larice Williams (appellant) appeals his conviction of

unlawful wounding. On appeal, he contends that the trial court:

1) abused its discretion in refusing to admit opinion testimony

from an expert witness for the defense, 2) erred in refusing to

allow cross-examination of a witness for the Commonwealth

regarding an incident that occurred after the offense, and 3)

erred in refusing to allow testimony from a witness for the

defense regarding the incident that occurred after the offense.

We disagree and affirm the conviction.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I. BACKGROUND

Appellant and Canute Brown (victim) fought at a party on the

evening of August 17, 1997. The fight, which occurred outside,

was broken up and the two men separated. Appellant went into a

house while the victim prepared to leave the party. Then,

appellant came out of the house carrying a knife. He approached

the victim and the two men fought again. Before the fight was

broken up, appellant cut the victim on the shoulder with the

knife. The victim got into his car to leave, and appellant

shattered the driver's side window of the vehicle. Particles of

glass fell onto the victim.

Before the police arrived, appellant fled the scene. Officer

Hendricks of the Virginia Beach Police Department testified that

when he arrived at the party the victim had a laceration on his

left shoulder that was five or six inches in length. The

paramedics arrived shortly after the police. Jasen White, a

volunteer with the Virginia Beach Rescue Squad, treated the victim

at the scene. He testified that the victim did not answer when

asked if he had been stabbed. He reported the victim's injury as

an abrasion that was six to eight inches in length with minor

bleeding. The trial court permitted White to testify as to his

concept of an abrasion. White described an abrasion as similar to

the wound a person receives when he or she falls and scrapes his

or her knee.

- 2 - On September 30, 1997, Officer Monteiro of the Virginia Beach

Police Department questioned appellant about the incident at the

party. Officer Monteiro read appellant his Miranda rights, and

appellant agreed to talk with the officer. Initially, appellant

only admitted to fighting with the victim and shattering the car

window. He denied having a knife and cutting the victim. After

further questioning, appellant admitted to getting a knife but

denied using it.

A second incident between appellant and the victim occurred a

few days after the party. At trial, counsel for appellant

attempted to cross-examine a witness for the Commonwealth about

the second incident. The Commonwealth objected on the ground of

relevance. Counsel for appellant argued that the witness'

testimony would go to state of mind and motive to fabricate. The

trial judge sustained the objection. Counsel for appellant did

not make a proffer of the witness' testimony. Later, counsel for

appellant attempted to recall a defense witness to testify about

the second incident. The Commonwealth objected. Counsel for

appellant proffered the witness' testimony, but the trial judge

sustained the objection on the basis that the testimony would be

prejudicial to the Commonwealth because the Commonwealth's

witnesses had been released and there was no opportunity for

rebuttal.

The jury convicted appellant of unlawful wounding, and he was

sentenced to serve five years in the state penitentiary.

- 3 - II. ANALYSIS

Appellant contends on appeal that the trial court: 1) abused

its discretion in refusing to admit opinion testimony from an

expert witness for the defense, 2) erred in refusing to permit

cross-examination of a witness for the Commonwealth regarding an

incident that occurred after the offense, and 3) erred in refusing

to permit testimony from a witness for the defense regarding the

incident that occurred after the offense. We disagree and affirm

the conviction.

"The admissibility of evidence lies within the sound

discretion of the trial court. A trial court's evidentiary

rulings will not be disturbed on appeal unless a clear abuse of

discretion is shown." Mack v. Commonwealth, 20 Va. App. 5, 7, 454

S.E.2d 750, 751 (1986) (citing Coe v. Commonwealth, 231 Va. 83,

88, 340 S.E.2d 820, 823 (1986)).

The admission of expert testimony is committed to the sound discretion of the trial judge, and we will reverse a trial court's decision only where that court has abused its discretion. Nonetheless, expert testimony is inadmissible on any subject on which the ordinary lay person of average intelligence is equally capable of reaching his or her own conclusion.

Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992)

(citation omitted).

Prior to trial, the trial court ruled that Jasen White, the

volunteer for the Virginia Beach Rescue Squad, could not testify

as an expert witness that the victim's wound was inconsistent with

- 4 - a knife wound because he was not qualified to give opinion

testimony. The trial judge, however, permitted White to describe

the wound as an abrasion.

We hold that the trial court did not err in excluding White's

opinion testimony. We find, based on the detailed description of

the wound, that expert testimony was unnecessary in this case.

"[T]he ordinary lay person of average intelligence," id., based on

the description of the wound, could have determined whether the

injury was inflicted by a knife. Therefore, such determination

was within the province of the jury.

Appellant contends that the trial court erred in refusing to

permit him to cross-examine one of the Commonwealth's witnesses

regarding an incident that occurred several days after the party.

At trial, however, appellant did not proffer the witness'

testimony when the trial court sustained the objection.

"When an objection is sustained and evidence is rejected,

it is incumbent upon the proponent of the evidence to make a

proffer of the expected answer; otherwise, the appellate court

has no means of determining if the evidence is material or

otherwise admissible." Speller v. Commonwealth, 2 Va. App. 437,

440, 345 S.E.2d 542, 545 (1986) (citing Blue Cross v.

Commonwealth, 221 Va. 349, 357, 269 S.E.2d 827, 832 (1980)).

We find that appellant's appeal of this issue is

procedurally barred because he did not proffer the testimony of

- 5 - the witness at the time the trial court sustained the objection

to the evidence.

Appellant challenges the trial court's refusal to permit

him to recall a defense witness to testify about the incident

that occurred several days after the victim was injured at the

party.

"A trial court exercises discretion in deciding whether to

permit the recall of witnesses for further examination." Avocet

Development Corp. v. McLean, 234 Va. 658, 669, 364 S.E.2d 757,

764 (1988) (citation omitted).

The trial court refused to permit appellant to recall the

witness because the Commonwealth had released its witnesses for

rebuttal based on an earlier ruling by the trial court. The

trial court ruled that permitting recall of the witness would be

prejudicial to the Commonwealth.

The Commonwealth released its witnesses before the defense

rested and did so at its own peril. However, appellant had the

opportunity to question the witness about the incident during

direct examination. Therefore, we find no abuse of discretion

by the trial court.

For these reasons, we affirm appellant's conviction.

Affirmed.

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