Paul Allen Marshall v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 16, 2024
• Docket: 0519222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Causey and Senior Judge Haley UNPUBLISHED

Argued at Richmond, Virginia

PAUL ALLEN MARSHALL MEMORANDUM OPINION* BY v. Record No. 0519-22-2 JUDGE DORIS HENDERSON CAUSEY APRIL 16, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF KING GEORGE COUNTY Herbert M. Hewitt, Judge

Timothy W. Barbrow (Law Office of Timothy W. Barbrow, on brief), for appellant.

Matthew P. Dullaghan, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

After a jury trial, Paul Allen Marshall was convicted of attempted murder, aggravated

malicious wounding, strangulation, abduction, and using a firearm in the commission of a felony.

Collectively, he was sentenced to 33 years of imprisonment total. Marshall raises 14 assignments of

error on appeal. We affirm the trial court’s judgment.

BACKGROUND1

In February 2018, for a period of about six weeks, Sabrina Rice was in a romantic

relationship with Marshall, and they lived in her car, a white Ford Focus. While in Maryland on

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 “In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). In doing so, we discard any of Marshall’s conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Id. at 473. February 26, 2018, Rice and Marshall argued about some information he found on her social media

concerning her prior relationships. Marshall got angry and accused Rice of infidelity. At about

9:30 p.m., they arrived in King George County, Virginia. They parked in a secluded spot on an

access road near a Walmart to spend the night. They resumed their argument, and Marshall spilled

a drink on Rice. Rice said she was going to get a change of clothes in the trunk. Marshall offered to

get them for her and went to the trunk of the car.

About five minutes later, Marshall asked Rice to exit the car to look at a pair of dry pants he

found for her. Rice got out of the backseat on the driver’s side of the car. As soon as she turned

toward Marshall, he fired a gun at her, striking her in the right side of the chest. The gun was a

Hi-Point Carbine nine-millimeter rifle. Rice fell backward to the ground. Marshall stood over Rice

with the gun in his hands and said, “look what you made me do[,] you stupid bitch.” Marshall put

the gun into the trunk of the car. Marshall picked up Rice, put her in the backseat of the car, and

drove away. Rice was bleeding and in excruciating pain, but Marshall refused to take her to the

hospital despite her pleas for help.

Marshall drove to an abandoned house in Dahlgren. Rice begged Marshall to take her to a

hospital—offering to let him keep her car after—but Marshall refused. Marshall had Rice’s cell

phone so she could not call for help. Eventually, Marshall fell asleep in the driver’s seat of the car

and Rice lost consciousness.

Early the next morning, Marshall drove to a Wawa store to get Rice a drink. He then drove

back to the access road where he had shot Rice. Using tampons that were in the trunk, Marshall

tried to bandage Rice’s gunshot exit wound in her back. Rice passed out from the pain. When Rice

awakened, Marshall had a rope around her neck and was strangling her with it. Rice fought back

and pulled the rope off her neck. Marshall joked that it was rude for Rice to “pass out on him.”

-2- Later in the day, Marshall interacted with a man working nearby. Rice testified that she was

too physically weak to call out to the man for help. David Miller confirmed that he was called to

service a malfunctioning pumping station in the area of the access road on February 27, 2018,

and that he had interacted with a male who was near a parked white car. The male gestured for

Miller to back away, commenting that he was trying to change a female’s bandages. Miller saw

a woman inside the white car who appeared to be in pain. After speaking with Miller, Marshall

drove away. Afterward, Miller found packaging from a bandage on the ground.

Marshall drove to his mother’s house in Dahlgren. He ordered Rice to stay in the car while

he went inside; Rice obeyed because she was afraid and weak. Marshall returned with food and

water.

Marshall drove to another secluded location that he and Rice had visited before. Rice

begged Marshall to get her help and promised that she would not press charges against him.

Marshall still refused and drove to a nearby gas station so Rice could use the restroom. Marshall

helped Rice into the bathroom located on the outside of the building. Rice locked herself inside for

several minutes, but because she had no cell phone, returned to Marshall outside.

In the late afternoon, on a second visit to Wawa, Marshall left Rice’s cell phone on the

console of the car while he went inside the store. In his absence, Rice texted her brother, reported

that Marshall had shot her, and told him that she desperately needed help. Rice’s brother

immediately called her; and although she could barely speak, she told him that she was in the

Dahlgren area. Rice deleted her text messages to her brother before Marshall returned to the car

from the store.2 Marshall drove back to the abandoned house and fell asleep.

2 During the visits to Wawa, Rice was bleeding and weak and unable to run away. -3- Early in the evening on February 27, 2018, King George County Police Lieutenant Patrick

Westin received information through police dispatch about a 911 call reporting a possible shooting.3

In response to the report, numerous officers searched for Rice’s white Ford Focus. After receiving a

“ping” on Rice’s cell phone, the police found Rice’s car parked behind a deserted house.

As the police neared the car, Marshall sat up in the driver’s seat. The police ordered him to

show his hands, then detained him. Rice was in the backseat of the car; Westin described her as

“gray,” in distress, incoherent, shaking, and barely able to speak. The officer removed Rice’s shirt

and saw that she “had a gunshot wound that appeared to be through-and-through.” When Westin

asked Rice about her being shot, Rice told Westin to be quiet. The officers took Rice to the steps of

the house to separate her from Marshall and wait for paramedics to arrive.

Initially, while in the back of an ambulance, Rice told the police she was injured in a

“drive-by” shooting in Westmoreland County. Detective Lieutenant Drew Massey, who overheard

Rice’s statement, doubted her account. Nonetheless, Massey investigated the specifics of Rice’s

report and found no indication that such a shooting had occurred.

The police seized a loaded rifle from the center portion of the Ford Focus, within arm’s

reach of the driver’s seat. The police also found a red-stained piece of rope on the driver’s seat

floorboard. DNA testing showed that the stains contained Rice’s genetic material.

Deputy Tyler Neiman transported Marshall to the sheriff’s office in a patrol car. During the

ride, Neiman did not ask Marshall any questions. Marshall was talkative, however, and commented

that he belonged to a Moorish temple and that his girlfriend “almost burned him.” The deputy

mentioned that he was not “trying to violate [Marshall’s] rights.” Marshall said that his girlfriend

had been “putting herself out there” on social media and sending “pictures and videos with other

3 At trial, the Commonwealth played the recording of the 911 call, which came from Rice’s brother. -4- guys.” When Deputy Neiman delivered Marshall to the sheriff’s office, he found a nine-millimeter

bullet in Marshall’s pocket.

After Rice was transported from the scene for medical treatment, Massey went to the

location in the sheriff’s office where the police were holding Marshall.4 Lieutenant Massey made

an audio recording of Marshall’s verbal exchange with the magistrate, but the lieutenant did not

participate in the conversation and asked him no questions. While before the magistrate, Marshall

was “carefree” and joking and did not appear concerned that he was charged with shooting Rice.

During interaction with the magistrate, Marshall discussed Rice’s alleged infidelity and mentioned

specific individuals he thought were involved. Marshall based his conclusion upon information that

he had found in Rice’s cell phone. He claimed that he had just arrived at the abandoned house

before the police did and that he and Rice were waiting for her brother to pick her up and take her to

the hospital. Marshall asked Lieutenant Massey about obtaining a protective order against Rice.

On the day after her rescue, while still in the hospital, Rice repeated her claim that she had

been injured in a “drive-by” shooting and she made a written statement to that effect. At that time,

Rice claimed that she had been taking the drug MDMA and was shot in Westmoreland County. She

indicated the shot came from a champagne-colored car with three people inside it. Several times,

Rice told the police that Marshall was not the person who shot her.5

At trial, however, Rice explained that she initially lied to the police because she was terrified

of Marshall and was afraid that he had escaped from the police and was not in custody. She feared

that he would send someone to “finish[ ]” “the job,” meaning kill her. After discharge from the

4 At the suppression hearing, Detective Monty Clift testified that he advised Marshall of his Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), rights while in an interview room at the sheriff’s office. Marshall indicated that he wished to remain silent, and the interview ended. The police then took Marshall to appear before the magistrate. 5 During cross-examination of Rice, defense counsel played the recording of her interview with Lieutenant Karen Richards at the hospital on February 28, 2018. -5- hospital, Rice decided that it was not fair for her to suffer and Marshall to get away with what he

had done, so she went to the police and told them that he had shot and strangled her. At trial, Rice

testified unequivocally that Marshall shot and strangled her and that her statement to the police after

her release from the hospital was the truth.

Rice identified the gun seized from the car as the weapon Marshall used to shoot her. From

Marshall’s Instagram account, the police obtained a video of him firing a rifle repeatedly and

photographs of the weapon. Massey testified that the rifle in the video and photos had the same

markings as those on the gun found in the car.

James Bullock, an expert in firearm analysis, examined the rifle found in the car and the

sweatshirt Rice was wearing when she was shot. Based upon the gunshot residue on the shirt, he

determined that the gun was fired at her from close range.

The gunshot entered Rice’s chest, punctured her lung, and exited her back. At trial, Rice

exhibited the scar on her right chest from the gunshot wound. Rice also had scars from the gunshot

exit wound and from the surgery she endured. Rice sustained permanent damage to her carotid

artery on the right side of her neck from the strangulation. Marshall was arrested on a capias for the

crimes on July 19, 2018. His jury trial commenced on May 3, 2021. Following his convictions for

the charged crimes, Marshall appeals.

ANALYSIS

I. Sufficiency of the Evidence

Marshall challenges the sufficiency of the evidence to sustain his convictions. “On review

of the sufficiency of the evidence, ‘the judgment of the trial court is presumed correct and will

not be disturbed unless it is plainly wrong or without evidence to support it.’” Ingram v.

Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v. Commonwealth, 296 Va. 450, 460

(2018)). “The question on appeal, is whether ‘any rational trier of fact could have found the

-6- essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Yoder v.

Commonwealth, 298 Va. 180, 182 (2019)). “If there is evidentiary support for the conviction,

‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might

differ from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth,

69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).

A. Rice’s Credibility

Marshall claims the evidence did not prove that he was the perpetrator because of Rice’s

inconsistent statements to the police about how she was injured. Marshall asserts that Rice initially

told the police she was injured in a “drive-by” shooting and that Marshall was not responsible for

the shooting. Marshall contends that these inconsistent statements rendered her trial testimony

incredible and insufficient to prove that he was the person who shot and strangled her. We disagree

because Rice’s testimony was not inherently incredible.

“The fact finder, who has the opportunity to see and hear the witnesses, has the sole

responsibility to determine their credibility, the weight to be given their testimony, and the

inferences to be drawn from proven facts.” Rams v. Commonwealth, 70 Va. App. 12, 26-27

(2019) (quoting Hamilton v. Commonwealth, 279 Va. 94, 105 (2010)). This Court gives

“deference to the fact finder who, having seen and heard the witnesses, assesses their credibility

and weighs their testimony.” Elliott v. Commonwealth, 277 Va. 457, 462 (2009).

In light of the jury’s credibility determination in finding Marshall guilty, this Court “may

only . . . disturb[ ]” its conclusion “on appeal if this Court finds that [the witness’][s] testimony

was ‘inherently incredible, or so contrary to human experience as to render it unworthy of

belief.’” Johnson v. Commonwealth, 58 Va. App. 303, 315 (2011) (third alteration in original)

(quoting Robertson v. Commonwealth, 12 Va. App. 854, 858 (1991)). “To be ‘incredible,’

testimony ‘must be either so manifestly false that reasonable men ought not to believe it, or it

-7- must be shown to be false by objects or things as to the existence and meaning of which

reasonable men should not differ.’” Juniper v. Commonwealth, 271 Va. 362, 415 (2006)

(quoting Cardwell v. Commonwealth, 209 Va. 412, 414 (1968)). Thus, “there can be no relief”

in this Court if a witness testifies to facts “which, if true, are sufficient” to support the conviction

“[i]f the trier of the facts” bases its decision “upon that testimony.” Smith v. Commonwealth, 56

Va. App. 711, 718-19 (2010) (quoting Swanson v. Commonwealth, 8 Va. App. 376, 379 (1989)).

Furthermore, “[t]he mere fact that a witness may have . . . given inconsistent statements during

the investigation of a crime does not necessarily render the testimony unworthy of belief.”

Juniper, 271 Va. at 415; see Snyder v. Commonwealth, 220 Va. 792, 796 (1980) (holding that a

witness’s testimony, which was the sole evidence that established the elements of the offense,

was not inherently incredible, even when “there were conflicts in her testimony,” and “material

portions of her testimony were contradicted by . . . other witnesses,” such as whether the witness

consented to sex). Instead, such inconsistencies are “appropriately weighed as part of the entire

issue of witness credibility, which is left to the [fact finder] to de[cide].” Juniper, 271 Va. at

415.

Rice explained why she initially lied to the police about the “drive-by” shooting. After

almost an entire day of being held in the car, unable to communicate with anyone, after Marshall

shot her, Rice understandably was afraid of Marshall when the police arrived to rescue her. She

was uncertain whether the police had apprehended him or if he had escaped, and she feared he

might return to “finish[ ]” “the job” since he had tried to kill her by shooting and strangling her.

Interestingly, the police officers who heard Rice’s story about the “drive-by” shooting did not

believe it, as it did not make sense for what had been reported via the 911 call. After her safety

was ensured, however, Rice went to the police with the truth—that Marshall was responsible for

shooting and strangling her. At trial, she testified unequivocally that her testimony was accurate.

-8- Upon these facts and circumstances, Rice’s testimony was not inherently incredible and the jury

was entitled to accept it.

B. Attempted Murder

Marshall contends that the evidence was insufficient to sustain his conviction for

attempted murder. Specifically, he argues that the evidence did not prove that he intended to kill

Rice. We disagree because fighting leading up to the shooting, use of a deadly weapon, aiming

the weapon at the victim, shooting the victim at close range in the chest, strangling the victim

with a rope around her neck, harsh words toward the victim, and failure to seek medical attention

sufficiently establish an intent to kill.

“To prove the crime of attempted murder two essential elements must be established.”

Hargrave v. Commonwealth, 214 Va. 436, 437 (1974). One, “[t]he specific intent to kill the

victim must be shown.” Id. And two, “this must be coupled with evidence of some overt but

ineffectual act in furtherance of this purpose.” Id. “The use of a deadly weapon, standing alone,

is not sufficient to prove the specific intent required to establish attempted murder.” Id. In

Hargrave, the Court held that “the use of a deadly weapon [a firearm] coupled with the

defendant’s other conduct and utterances, were sufficient for the trial court to find that defendant

had the requisite intent to commit [attempted] murder.” Id. In Hargrave, the defendant and the

victim, who had been in a relationship, had been arguing about their relationship. Id. at 436.

The defendant asked for his coat back, but the victim would not give it to him, and the defendant

left. Id. After a few minutes, the defendant came back with a gun, and “[w]hen [the defendant]

was about ten feet from [the victim], who was seated in a chair, [the] defendant told [the victim]

‘to give him his coat’ and fired toward her without raising the rifle to his shoulder.” Id. at 437.

“The projectile grazed [the victim] on the right shoulder causing a ‘little burn’ before it struck a

washing machine approximately three feet behind her.” Id.

-9- As in Hargrave, the circumstances here sufficiently establish Marshall’s intent to kill

Rice. As in Hargrave, Marshall and the victim, Rice, were in a romantic relationship and had

been arguing in Rice’s car. Marshall spilled a drink on Rice while they were arguing in the car.

Rice said she was going to get a change of clothes in the trunk, and Marshall offered to get them

for her. He asked Rice to come to the trunk to see if the clothes he chose were okay. Rice got

out from the backseat of her car, and as soon as she got out, Rice saw Marshall holding a gun,

and he shot her at close range. After Marshall shot Rice, “[h]e stood over top of [her] with the

gun in his hand and said, [‘]look what you made me do you stupid bitch.[’]” Marshall shot the

victim in the right side of her chest. Thus, here, as in Hargrave, argument preceded the shooting,

Marshall aimed at and hit the victim, and his words demonstrated that he intended to shoot her.

The facts are even more severe here—the victim in Hargrave was grazed on the shoulder,

whereas the victim here was shot in the chest. We hold that, as in Hargrave, these

circumstances—fighting before the overt act, use of a deadly weapon, aiming the weapon at

Rice’s body, shooting her at close range, strangling Rice with a rope, Marshall’s harsh words

toward Rice, and Marshall’s failure to seek medical attention for Rice—sufficiently establish an

intent to kill.

C. Aggravated Malicious Wounding

Marshall argues that the evidence was insufficient to prove that Rice suffers a permanent

injury. We disagree because Rice’s scars and chronic pain are permanent and significant

physical impairments.

“To be convicted of aggravated malicious wounding under Code § 18.2-51.2, the injuries

inflicted on the victim must be both a ‘significant physical impairment’ and ‘permanent.’”

Alston v. Commonwealth, 77 Va. App. 639, 650 (2023) (quoting Lamm v. Commonwealth, 55

Va. App. 637, 644 (2010)). “‘“[P]hysical impairment” for purposes of this criminal statute’ is

- 10 - defined as ‘any physical condition, anatomic loss, or cosmetic disfigurement.’” Id. (alteration in

original) (quoting Lamm, 55 Va. App. at 644). “To prove an injury is permanent, the

Commonwealth need not present definitive testimony that a victim’s injuries will never improve,

but instead can leave it to the common sense of the [factfinder] to determine if the injuries are

permanent.” Id. (alteration in original) (quoting Lamm, 55 Va. App. at 644-45). In Newton v.

Commonwealth, 21 Va. App. 86 (1995), the Court held that the victim’s “injuries constituted

‘permanent and significant physical impairment,’” when the victim had “visible” scars, some of

the wounds needed stitches, and there were a multiple “number of wounds.” Id. at 90. In

Newton, the Commonwealth did not present medical testimony about the victim’s wounds; the

victim simply “displayed his scars for the [factfinder].” Id. at 89.

Here, like in Newton, the victim testified that she had two scars—one where the bullet

entered her body and one where the bullet exited her body—and showed her entrance wound

scar while on the stand. She testified that she still has pain in her chest and that she has

“permanent carotid artery damage on the right side of my neck. If you look closely[,] you’ll see

how it sticks out right here. The tattoo is just to cover the scars that were left on my neck” from

being strangled. This evidence is sufficient to establish that the victim suffered a permanent and

significant physical impairment.

D. Malice

Marshall argues that the evidence was insufficient to prove that he acted with malice. We

disagree because shooting and strangling a person is a wrongful, intentional act that necessarily

causes injury.

“Malice inheres in the ‘doing of a wrongful act intentionally, or without just cause or

excuse, or as a result of ill will.’” Alston, 77 Va. App. at 648 (quoting Tizon v. Commonwealth,

60 Va. App. 1, 11 (2012)). “It exists when a person commits ‘any purposeful and cruel act

- 11 - without any or without great provocation.’” Id. (quoting Fletcher v. Commonwealth, 72

Va. App. 493, 507 (2020)). “Malice ‘may be directly evidenced by words[ ] or inferred from

acts and conduct which necessarily result in injury.’” Id. (alteration in original) (quoting Ramos

v. Commonwealth, 71 Va. App. 150, 162 (2019)).

Here, Marshall acted with malice because shooting and strangling the victim were

wrongful, intentional acts and also acts that necessarily result in injury. Cf. id. at 645, 649-50

(concluding that the defendant acted with malice when he punched the victim multiple times,

knocking out and “mangl[ing]” the victim’s teeth). Marshall’s acts were intentional for the

reasons stated in Section I.B., above. Thus, we hold that Marshall acted with malice in shooting

Rice.

E. Abduction

Marshall contends the evidence was insufficient to sustain his conviction for abduction.

Marshall contends that the Commonwealth failed to establish an abduction because he did not

detain Rice or prevent her from leaving the car. He emphasizes that after the shooting and

strangulation, he drove her to public places, leaving her alone in the car and the gas station

restroom where she could have escaped or asked others for help. We disagree because Rice did

not go with Marshall willingly, as she was too injured to escape.

Under Code § 18.2-47(A), “[a]ny person who, by force, intimidation or deception, and

without legal justification or excuse, seizes, takes, transports, detains or secretes another person

with the intent to deprive such other person of his personal liberty . . . shall be deemed guilty of

‘abduction.’” “The crime of abduction requires proof of an asportation or detention by force,

intimidation or deception.” Carr v. Commonwealth, 69 Va. App. 106, 115 (2018) (quoting Smith

v. Commonwealth, 33 Va. App. 65, 70 (2000)). In Crawford v. Commonwealth, 281 Va. 84

(2011), the Supreme Court held that the evidence was sufficient that the defendant had abducted

- 12 - the victim. In Crawford, the defendant shot the victim, took her to a motel and left her alone,

and “[a]n expert witness testified that [the victim] could not move after she was shot because the

bullet severed her spine.” Id. at 103. This evidence was sufficient to show that the victim did

not go with the defendant willingly. Id. at 104.

Here, as in Crawford, after Marshall shot and strangled the victim, he kept her in her car

and drove her to different places. On all but one occasion, he kept her cell phone so she could

not call for help. As in Crawford, the victim could not run away from Marshall because of her

injuries, including a gunshot injury. A paramedic who responded to the scene testified that when

he saw the victim, she “appeared to be visibly weak” and law enforcement assisted her in

walking to the ambulance. The paramedic made the decision to transport the victim to a “level

one trauma center” by helicopter, due, in part, to the victim’s “trending declining vital signs.”

The paramedic further testified that it was “highly unlikely” that the victim would have survived

without medical care. Because the evidence shows that, like in Crawford, Rice was too injured

to run away and did not go with Marshall willingly, we hold that the evidence sufficiently

establishes that Marshall abducted Rice.

II. The Jury Selection Process

Marshall contends that the trial court erred in granting the Commonwealth’s motion to strike

Juror 31 and refusing to strike Jurors 18, 23, and 26 for cause based on their responses during voir

dire. We disagree. Marshall’s assignment of error regarding Juror 31 is waived because he did

not object at trial to dismissal of Juror 31. Jurors 18, 23, and 26 answered that they would not

credit witnesses’ testimony simply based on the jurors’ familiarity with the witnesses. Thus, the

trial court did not abuse its discretion in finding these jurors free from exception.

“The right to be tried by an impartial jury is guaranteed under both the United States and

Virginia Constitutions.” Taylor v. Commonwealth, 61 Va. App. 13, 22 (2012); see Code

- 13 - § 8.01-358. “For that guarantee to be effective, persons accused of violating criminal laws must

be provided with ‘an impartial jury drawn from a panel . . . free from exceptions.’” Taylor, 61

Va. App. at 22 (quoting Breeden v. Commonwealth, 217 Va. 297, 300 (1976)). “Every

prospective juror must stand indifferent to the cause, ‘and any reasonable doubt as to a juror’s

qualifications must be resolved in favor of the accused.’” Id. at 23 (quoting Breeden, 217 Va. at

298). “If there be a reasonable doubt whether the juror possesses these qualifications, that doubt

is sufficient to insure his exclusion.” Id. (quoting Breeden, 217 Va. at 298). “These principles

must be strictly applied, and when a prospective juror equivocates about whether he or she has

formed a fixed opinion, the prospective juror should be stricken by the trial court.” Id. “The

opinion entertained by a juror, which disqualifies him, is an opinion of that fixed character which

repels the presumption of innocence in a criminal case, and in whose mind the accused stands

condemned already.” Id. (quoting Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 61 (2011)).

“Thus, the test of impartiality is whether the venireperson can lay aside the preconceived views

and render a verdict based solely on the law and evidence presented at trial.” Id. (quoting

Lovos-Rivas, 58 Va. App. at 61).

“It is prejudicial error for the trial court to force a defendant to use peremptory strikes to

exclude a venireman from the jury panel if that person is not free from exception.” Townsend v.

Commonwealth, 270 Va. 325, 329 (2005). “The striking of any individual potential juror for

cause, however, is committed to the sound discretion of the trial court.” Id.

Because it has the opportunity to see and hear each juror respond to questions posed

during voir dire, the trial court “is in a superior position to determine whether a prospective

juror’s responses during voir dire indicate that the juror would be prevented from or impaired in

performing the duties of a juror as required by the court’s instructions and the juror’s oath.”

Taylor, 61 Va. App. at 23 (quoting Lovos-Rivas, 58 Va. App. at 61).

- 14 - Juror impartiality is a question of fact, and a trial court’s decision to seat a juror is entitled to great deference on appeal. Accordingly, the decision to retain or exclude a prospective juror will not be disturbed on appeal unless there has been manifest error amounting to an abuse of discretion.

Id. at 23-24 (quoting Lovos-Rivas, 58 Va. App. at 61). In conducting our review on appeal, “we

consider the juror’s entire voir dire, not merely isolated statements.” Id. at 24.

A. Juror 31

Marshall argues that the trial court erred in granting the Commonwealth’s motion to strike

Juror 31 for cause.

During initial voir dire, the trial court asked the potential jurors if any of them were sensible

to any bias or prejudice against the Commonwealth or Marshall. Juror 31 raised his hand and said

that he had a bias against the Commonwealth’s Attorney because the juror’s youngest son was

serving a ten-year prison sentence. The prosecutor later moved to strike Juror 31 for cause based on

his indication of bias. Other than noting that Juror 31 said that he “may harbor some bias,” defense

counsel raised no objection to the strike and “submit[ted] it to the [c]ourt.” The trial court granted

the Commonwealth’s motion and struck Juror 31.

By raising no objection to the Commonwealth’s motion to strike Juror 31 for cause,

Marshall failed to preserve any such challenge for appellate review. Marshall does not invoke the

good cause or ends of justice exceptions to Rule 5A:18, and the Court will not apply the

exceptions sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761 (2003) (en banc).

Accordingly, Rule 5A:18 bars our consideration of this assignment of error on appeal.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of th[e]

contemporaneous objection requirement [in Rule 5A:18] is to allow the trial court a fair

- 15 - opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials.”

Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015). “Specificity and timeliness undergird

the contemporaneous-objection rule, animate its highly practical purpose, and allow the rule to

resonate with simplicity.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “Not just any

objection will do. It must be both specific and timely — so that the trial judge would know the

particular point being made in time to do something about it.” Id. (quoting Dickerson v.

Commonwealth, 58 Va. App. 351, 356 (2011)). If a party fails to timely and specifically object,

he waives his argument on appeal. Arrington v. Commonwealth, 53 Va. App. 635, 641 (2009).

B. Jurors 18, 23, and 26

Voir Dire of Juror 18

During voir dire, Juror 18 responded that he knew one of the witnesses because the

witness “is the father of a former classmate.” The following exchange then took place:

[COMMONWEALTH]: And given that relationship, would that make you more or less likely to believe him than anyone else?

JUROR NUMBER EIGHTEEN: Yeah, I believe him to be a good guy, but, you know, I think -- I have to hear the testimony.

[COMMONWEALTH]: You would need to hear the testimony before you made a decision?

JUROR NUMBER EIGHTEEN: Uh-huh.

Voir Dire of Juror 26

During voir dire, Juror 26 responded that he had known Sergeant Ryan Moneyhon “since

[Moneyhon] was a kid” because Moneyhon was a “contemporary with [Juror 26’s] sons.” The

following exchange then took place:

[COMMONWEALTH]: Okay. And knowing Ryan from a young age, is there anything that would make you more likely or less likely to believe him than anyone else who took the stand?

- 16 - JUROR NUMBER TWENTY-SIX: I think he’s a fine young man, and, you know, I would tend to believe him, yeah.

[COMMONWEALTH]: You would tend to believe him?

JUROR NUMBER TWENTY-SIX: Yeah.

[COMMONWEALTH]: Now, if he took the stand, would you be able to believe what he said on its face, judge it on its face without considering the fact that Ryan Moneyhon is the one speaking?

JUROR NUMBER TWENTY-SIX: Repeat your question.

[COMMONWEALTH]: I’m sorry. That was a little confusing.

[COMMONWEALTH]: Would you be able to take Ryan’s testimony on its face?

JUROR NUMBER TWENTY-SIX: Yes, I would.

[COMMONWEALTH]: And would you give it any more credence than you would . . .

JUROR NUMBER TWENTY-SIX: Absolutely not.

[COMMONWEALTH]: A police officer or another person on the street?

JUROR NUMBER TWENTY-SIX: No.

[COMMONWEALTH]: Okay. Thank you, sir.

Voir Dire of Juror 23

Juror 23 indicated that she knew Detective Brian Woodring and his wife from church “on a

personal level.” The following exchange took place:

- 17 - [COMMONWEALTH]: And hearing testimony from Detective Woodring, would you be more or less likely to believe him than anyone else who took the stand?

JUROR NUMBER TWENTY-THREE: Probably. I mean, not more likely, but I find him as a very honest person.

[COMMONWEALTH]: You find him to be an honest person?

JUROR NUMBER TWENTY-THREE: Yes.

[COMMONWEALTH]: Okay.

JUROR NUMBER TWENTY-THREE: But I would want to hear the testimony.

[COMMONWEALTH]: But you would want to hear the testimony before making any sort of judgment?

JUROR NUMBER TWENTY-THREE: Definitely.

Motions to Strike

Marshall moved to strike Juror 26 for cause based on his familiarity with Sergeant

Moneyhon. Marshall also moved to strike Jurors 18 and 23 because of their acquaintance with

Detective Woodring and belief that he was honest or a “good” person. The trial court denied the

motions to strike based on the jurors’ assurances that they would not necessarily credit the police

officers’ testimony above that of other witnesses and would base their decisions on the evidence

presented. Marshall argues that the trial court erred in refusing to strike Jurors 18, 23, and 26 for

cause.

Knowing a witness, or even being related to a witness, does not automatically require a

trial court to strike a juror for cause. In Mayfield v. Commonwealth, 59 Va. App. 839 (2012),

this Court concluded that a juror’s familial relationship with two witnesses did not require her to

be struck for cause. The juror “answered, ‘[n]o,’” in response to being asked if her relationship

with the witnesses would be “a problem in deciding the case,” and in response to further

questioning, she “confirmed that she could put aside her relationship with the witnesses and - 18 - impartially evaluate their testimony.” 59 Va. App. at 842-43. This Court concluded that, when

the juror confirmed that she could be impartial, “had no preconceived notions regarding the

witnesses’ truthfulness,” and “could be fair to both [parties],” “the trial court did not abuse its

discretion . . . i[n] declin[ing] to strike the juror for cause.” Id. at 847-48.

Similarly, the record here contains no indication that the trial court committed manifest

error by refusing to strike three members of the venire for cause simply because they knew two

law-enforcement witnesses and had positive opinions of them. All three of the jurors indicated

that they would not credit the witnesses’ testimony simply based on the jurors’ familiarity with

the witnesses. Thus, we uphold the trial court’s denial of the motions to strike.

III. Admission of the 911 Call

Marshall argues that admission of the 911 call that Rice’s brother made violated the

Confrontation Clause and the rule against hearsay. We disagree because the call was nontestimonial

hearsay and falls under the exceptions to the hearsay rule.

A. Confrontation Clause

The Confrontation Clause prevents testimonial hearsay from being introduced at trial

without opportunity to examine the declarant. Canada v. Commonwealth, 75 Va. App. 367, 381

(2022). In Canada “the Court explained what statements qualified as ‘testimonial’ and

articulated the primary purpose test.” Id. at 382.

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. (emphases added) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). “[A] 911 call

[i]s nontestimonial when ‘[e]xamining all of the relevant circumstances, including the circuit - 19 - court’s findings of fact regarding [the declarant’s] demeanor and state of mind, . . . [the]

statements to the emergency dispatcher were not made “with a primary purpose of creating an

out-of-court substitute for trial testimony.”’” Id. at 383 (all but first two alterations in original)

(quoting Cody v. Commonwealth, 68 Va. App. 638, 660 (2018)).

Here, Rice’s brother’s statements to the 911 dispatcher were nontestimonial hearsay and

did not violate the Confrontation Clause. Rice’s brother called and told the 911 dispatcher that

Rice had called him and told him that “her boyfriend had shot her and they were trying to kill

her.” Rice’s brother stated that Rice could barely speak. He also stated that he “d[idn’t] know

what to do” because he doesn’t live near Rice. He stated that “she told me I could not call her

back or text her because he [Marshall] was sitting right there and it was just gonna get her killed

faster.” Rice’s brother said it sounded like Rice “was hiding” while she was on the phone with

him. These circumstances indicate that Rice’s brother’s call was to ask for help responding to an

ongoing emergency—getting medical care for Rice’s gunshot wound and getting Rice away from

the ongoing threat of being killed by her attacker. Thus, Rice’s brother’s statements to the 911

dispatcher were nontestimonial hearsay and their admission did not violate the Confrontation

Clause.

B. Hearsay

Marshall argues that Rice’s brother’s call to 911 operators relaying what Rice had told

him is inadmissible hearsay evidence.

However, under Code § 8.01-390,

A. Copies of records of this Commonwealth, of another state, of the United States, of another country, or of any political subdivision or agency of the same, other than those located in a clerk’s office of a court, shall be received as prima facie evidence, provided that such copies are authenticated to be true copies either by the custodian thereof or by the person to whom the custodian reports, if they are different. . . .

- 20 - B. Records and recordings of 911 emergency service calls shall be deemed authentic transcriptions or recordings of the original statements if they are accompanied by a certificate that meets the provisions of subsection A and the certificate contains the date and time of the incoming call and the incoming phone number, if available, associated with the call.

In Canada, 75 Va. App. at 378 n.5 (quoting Code § 8.01-390), this Court found that although

Code § 8.01-390 “is largely concerned with the public records hearsay exception, the plain

language of the statute clearly states that evidence offered in compliance with the statute ‘shall

be received as prima facie evidence.’” Thus, it is “one of the few statutes relating to document

admissibility which satisfies the best evidence rule, the authentication requirement and the

hearsay rule.” Id. (emphasis added) (quoting Kent Sinclair, The Law of Evidence in Virginia

§ 17-4[c][2] (8th ed. 2018)). Based upon this Court’s finding in Canada, the trial court did not

err in concluding that the 911 recording was admissible under the statutory exception to the

hearsay rule contained in Code § 8.01-390. See id.

IV. Admission of Evidence from Marshall’s Instagram Account

Marshall argues that the trial court abused its discretion in admitting the photos and video

from his Instagram account “[g]iven the lack of evidence connecting the rifle shown on the

Instagram account and the weapon used to shoot Rice.” We disagree because such evidence was

relevant.

“[W]e review a trial court’s decision to admit or exclude evidence using an abuse of

discretion standard and . . . will not disturb a trial court’s decision to admit evidence absent a

finding of abuse of that discretion.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021) (first

alteration in original) (quoting Avent v. Commonwealth, 279 Va. 175, 197 (2010)). “In

evaluating whether a trial court abused its discretion, . . . 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.” Id. (alteration in original) (quoting Carter v. Commonwealth, 293 Va. 537, 543 - 21 - (2017)). “The abuse-of-discretion standard [also] includes review to determine that the

discretion was not guided by erroneous legal conclusions.” Id. (alteration in original) (quoting

Carter, 293 Va. at 543-44).

Unless otherwise prohibited, “[a]ll relevant evidence is admissible[.]” Va. R. Evid.

2:402(a). ‘“Relevant evidence’ means evidence having any tendency to make the existence of

any fact in issue more probable or less probable than it would be without the evidence.” Va. R.

Evid. 2:401. “The scope of relevant evidence in Virginia is quite broad, as ‘[e]very fact,

however remote or insignificant, that tends to establish the probability or improbability of a fact

in issue is relevant.’” Commonwealth v. Proffitt, 292 Va. 626, 634 (2016) (quoting Va. Elec. &

Power Co. v. Dungee, 258 Va. 235, 260 (1999) (alteration in original)).

Here, the evidence from Marshall’s Instagram account makes more likely the fact that

Marshall possessed the gun used to shoot Rice and that he shot Rice. Detective Massey testified

that the gun depicted in Marshall’s Instagram account had the same markings as the gun that the

police seized from the Ford Focus. Rice identified the rifle found within reach of the driver’s seat of

the car as the gun Marshall used to shoot her. Thus, the photos and video from Marshall’s

Instagram account that the Commonwealth introduced were relevant to link him to the weapon he

used against Rice and to show that Marshall remained in possession of the gun when the police

found him. For these reasons, the video and photos showing the rifle were relevant and the trial

court did not abuse its discretion in admitting them.

V. Denial of Marshall’s Motion to Suppress

Marshall contends that the trial court erred in denying his motion to suppress statements he

made in the presence of the police. He maintains that the police subjected him to custodial

interrogation in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). We

- 22 - disagree because such statements were either not the product of custodial interrogation or not

admitted at trial.

“In reviewing the denial of a motion to suppress, we ‘consider the facts in the light most

favorable to the Commonwealth, the prevailing party at trial.’” Aponte v. Commonwealth, 68

Va. App. 146, 156 (2017) (quoting Hairston v. Commonwealth, 67 Va. App. 552, 560 (2017)).

“It is the appellant’s burden to show that when viewing the evidence in such a manner, the trial

court committed reversible error.” Id. (quoting Hairston, 67 Va. App. at 560).

A. Statements to Neiman and Massey

Marshall contends that the trial court erred in denying his motion to suppress statements

he made while Deputy Neiman transported him to the sheriff’s office and statements he made to

Lieutenant Massey after the probable cause hearing. Marshall asserts such statements were made

in violation of Miranda.

“The principle is now well-established that, pursuant to the Fifth Amendment of the

United States Constitution, law enforcement officers must inform a suspect in a custodial

interrogation of certain rights, including the right to remain silent and to have the assistance and

presence of legal counsel during the interrogation.” Bass v. Commonwealth, 70 Va. App. 522,

539-40 (2019) (quoting Stevens v. Commonwealth, 283 Va. 296, 302 (2012)). If a suspect

waives his right to an attorney after he has received Miranda warnings, the police “are free to

interrogate him, but if the suspect requests counsel at any time during the interrogation, the

interrogation must cease until an attorney has been made available to the suspect or the suspect

reinitiates the interrogation.” Id. at 540 (quoting Commonwealth v. Redmond, 264 Va. 321, 328

(2002)).

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to

any words or actions on the part of the police (other than those normally attendant to arrest and

- 23 - custody) that the police should know are reasonably likely to elicit an incriminating response from

the suspect.” Commonwealth v. Ferguson, 278 Va. 118, 124 (2009) (quoting Rhode Island v. Innis,

446 U.S. 291, 301 (1980)). We must determine “whether an objective observer would view an

officer’s words or actions as designed to elicit an incriminating response.” Timbers v.

Commonwealth, 28 Va. App. 187, 196 (1998) (quoting Blain v. Commonwealth, 7 Va. App. 10,

15 (1988)).

The record supports the trial court’s finding that Neiman and Massey did not subject

Marshall to interrogation or its functional equivalent.

Marshall had a long, mostly one-sided conversation with Neiman on the ride back to the

police station. Marshall did most of the talking, but Neiman occasionally responded. Neiman asked

Marshall, “You doing all right man?” and, “you still tired?” Sometimes he’d respond, “I don’t

understand what you’re saying, buddy.” At the beginning of the conversation, Neiman clarified to

Marshall, “I’m not trying to violate your rights or nothing . . . I’m just gonna be as respectful as I

can.” In response to Marshall talking about Neiman putting him in handcuffs, Neiman explained, “I

was just doing it for officer safety and for everybody’s safety, that’s all” — “I didn’t mean you no

harm.” Neiman often responded to Marshall’s conversation with “uh-huh,” “yeah,” “right,” “wow,”

or “okay.” At times Neiman communicated his whereabouts and plan to deal with Marshall over

the police radio. Also during the ride, Neiman asked express questions in response to express

questions Marshall asked Neiman. Marshall asked Neiman, “how was your day, though?” to which

Neiman responded, “It was good, how was yours?” Marshall answered: “It was horrible,” to which

Neiman reiterated, “horrible day?” Marshall also asked Neiman, “you know, I found evidence of

her [Rice] almost burning me?” to which Neiman responded, “[b]urning you?” Marshall also

asked, “[s]o you know the park, right?” to which Neiman responded, “[t]he what?” When Marshall

attempted to discuss the merits of the potential case against him by asking, “hey, is that Michael

- 24 - Kors bag going to go . . . in my evidence file?” Neiman asked, “what’s that?” Marshall clarified,

“the Michael Kors bag in the car,” to which Neiman responded, “I’m not sure what you’re talking

about.” Marshall also asked, “did you guys search the vehicle?” to which Neiman responded, “I’ve

been with you the entire time.”

Marshall also argues that statements he made to Lieutenant Massey after Marshall’s

probable cause hearing with the magistrate were made in violation of Miranda. But, like with

Marshall’s statements to Neiman, Massey did not subject Marshall to interrogation or its functional

equivalent. Like the conversation with Neiman, Marshall does most of the talking, with Massey

occasionally responding. After the magistrate issues a protective order for the benefit of Rice

against Marshall, Marshall makes a comment about the expiration date of the order. Massey tells

Marshall that the protective order date could be extended. Marshall responds by asking for a

counter protective order and surveillance on Rice’s social media. Massey asks, “What’s her

Facebook page?” to which Marshall responds. Later, Marshall talks about whether his out-of-

state address would affect him getting “bond,” to which Massey responds, “I think it doesn’t

matter what kind of address you had . . . she has a guideline to go by because of the charge

itself.” In response to Marshall asking about a specific McDonald’s, Massey asks Marshall, “is

that where you w[ere] working? The one in Dover?” to which Marshall responds in the

affirmative. Marshall then talks about discovering Rice cheating on him, saying, “I caught her!”

Massey asks, “was it one of your boys?” to which Marshall responds he doesn’t know the details.

Marshall goes on, describing the situation of Rice cheating on him. Massey follows up, “[s]o

you don’t know if it was one of your boys,” to which Marshall responds that he does know it was

one of them. Massey asks more questions, such as if Marshall’s “boy” was in “King George”

and if it was “DQ.” Marshall later makes a comment about Rice being in the next room and

wanting her to come join him, to which Massey responds, “[n]o, she’s at the hospital!” At the

- 25 - end of the conversation, Massey tells Marshall that they have to “take [him] back over here,” to

get him fingerprinted and get his picture taken so that after, they “can take [him] up the road.”

He also gives Marshall a cinnamon bun because “[he] told him [he] would.” Throughout the

conversation, while Marshall is talking, Massey makes comments like, “okay,” “right,” “I hear

you,” “Is that right?,” and “that’s your girl?!”

Although Neiman and Massey asked some express questions of Marshall, Neiman’s and

Massey’s questions were not designed to aid in factfinding, but to carry on polite conversation

with Marshall and some questions were to inquire of his wellbeing. Neiman’s and Massey’s

other responses were not reasonably likely to elicit an incriminating response from the suspect.

Thus, we conclude that because Neiman and Massey did not subject Marshall to interrogation or

its functional equivalent, Neiman and Massey did violate Marshall’s Miranda rights.

Accordingly, the trial court did not err in denying Marshall’s motion to suppress any statements

Marshall made to Neiman during the car ride or to Massey after the probable cause hearing.

B. Statements to Clift

Marshall also maintains that the trial court should have suppressed statements about his

background that he made to Detective Monty Clift before the officer read his Miranda warnings. In

his brief, other than characterizing the exchange as Detective Clift asking him “background

questions,” Marshall identifies no statements elicited by Detective Clift that were introduced at trial

or led to the discovery of other evidence. Therefore, any consideration of the admissibility of

Marshall’s possible statements to Detective Clift is moot.6 See Jenkins v. Commonwealth, 244

Va. 445, 452 (1992).

6 In any event, the trial court held inadmissible Detective Clift’s comment to Marshall that the detective “would talk if [his] girlfriend was shot.” - 26 - C. Summary

Because Marshall’s statements were not made in violation of Miranda or were not

admitted at trial, we hold that the trial court did not err in denying Marshall’s motion to suppress.

VI. Denial of Marshall’s Motion for Expert Witness

Marshall argues that the trial court erred in denying Marshall’s motion for an expert

witness. We disagree because Marshall has only shown a hope or suspicion that favorable

evidence may be procured from the expert.

“[A]n indigent defendant seeking the appointment of an expert has the burden of showing

a particularized need therefor.” Barnabei v. Commonwealth, 252 Va. 161, 171 (1996). In

Barnabei, the Court held that “Barnabei failed to make the particularized showing that would

have entitled him to the appointment of an expert forensic pathologist at the Commonwealth’s

expense.” Id. Rather, “[a]t most, Barnabei hoped or suspected that an expert might testify that

the injuries to [the victim]’s vagina and anal opening did not necessarily result from force.” Id.

The Court concluded that Barnabei had only shown “[a] hope or suspicion that favorable

evidence may be procured from an expert” and that such hope or suspicion “is not sufficient to

require the appointment of an expert.” Id.

This case is almost identical to Barnabei. On brief, Marshall argues that a medical expert

would have helped him refute medical testimony it predicted that the Commonwealth would

introduce (and later did) that the victim was shot at close range. Like Barnabei, Marshall hoped

that a medical expert would testify that the victim was shot from a further range, in support of

the victim’s first statement that she was shot in a drive-by shooting. But, as in Barnabei,

Marshall has only shown a hope or suspicion that favorable evidence may be procured from an

expert. Thus, the trial court did not abuse its discretion in denying Marshall’s request for an

expert witness.

- 27 - VII. Denial of Motion for Ex Parte Hearing

Marshall argues that the trial court erred in denying his motion for an ex parte hearing on his

request for a court-appointed expert. We disagree because denial of such a hearing was harmless

error.

“[U]nder Code § 8.01-678, a harmless error review is required in all cases, unless

otherwise provided by another statute.” Commonwealth v. Kilpatrick, 301 Va. 214, 216 (2022).

Code § 8.01-678 provides that “[w]hen 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, no judgment shall be arrested or reversed.” For alleged error related to the denial of a

motion for appointment of an expert, we review whether the error “was harmless beyond a

reasonable doubt.” Sanchez v. Commonwealth, 41 Va. App. 340, 353 (2003) (quoting Chapman

v. California, 386 U.S. 18, 24 (1967)). “Under that standard, a constitutional error may not be

declared harmless if there is a ‘reasonable possibility’ that the ‘error contributed to the verdict.’”

Id. (quoting Tuggle v. Netherland, 79 F.3d 1386, 1392 (4th Cir. 1996)).

Assuming, without deciding, that it was error to deny Marshall an ex parte hearing, we

conclude that any such error was harmless. Marshall has not pointed to any specific evidence

that he would have presented at the ex parte hearing that would have changed the outcome of his

motion for an expert witness. Instead, he generally argues that failing to hold an ex parte hearing

“would have compelled Marshall to disclose trial strategy and divulge information and

communication between counsel and her client in the presence of the Commonwealth in

violation of Marshall’s right to counsel under the 6th Amendment to the U.S. Constitution.” He

also argues that “denying Marshall an ex parte hearing would have required Marshall’s counsel

[to] mak[e] proffers of evidence that . . . may have been incriminating for Marshall in violation

of his Fifth Amendment rights.” Because Marshall has not shown how holding an ex parte

- 28 - hearing would have changed the outcome of his motion for an expert witness, this error was

harmless. Cf. Weeks v. Commonwealth, 248 Va. 460, 472 (1994) (“[W]e hold that the court did

not commit reversible error because nothing in the record suggests that the trial court’s rulings

prejudiced defendant’s right to fairly defend himself.”).

VIII. Denial of Motion to Dismiss on Constitutional Speedy Trial Grounds

Marshall argues that the trial court erred in denying his motion to dismiss the charges

against him because he was denied his constitutional right to a speedy trial. We disagree because

the four speedy trial factors, on balance, weigh in the Commonwealth’s favor. This is so because

the delay attributable to the Commonwealth was validly justified, in part by pandemic concerns, and

Marshall has not shown the requisite showing of prejudice.

The Sixth Amendment provides in part that “[i]n all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial . . . .” U.S. Const. amend. VI. “The

determination of whether an accused has been denied the constitutional right to a speedy trial

requires ‘a difficult and sensitive balancing process’ in which the court examines on an ad hoc

basis the conduct of both the state and the accused which led to a delay in prosecution.” Kelley

v. Commonwealth, 17 Va. App. 540, 544 (1994) (quoting Barker v. Wingo, 407 U.S. 514, 530

(1972)). “A claim of a violation of speedy trial rights under the federal constitution is resolved

by the balancing of four factors - length of delay, reason for delay, defendant’s assertion of his

right, and prejudice to the defendant.” Howard v. Commonwealth, 281 Va. 455, 462 (2011).

“None of the factors is either ‘necessary or sufficient’ to finding a violation.” Ali v.

Commonwealth, 75 Va. App. 16, 35 (2022). “Instead, ‘they are related factors that “must be

considered together with . . . other [relevant] circumstances.”’” Id. (alterations in original)

(quoting Kelley, 17 Va. App. at 544). “On appeal, a defendant must establish that ‘on balance,’

the factors ‘weigh in his favor.’” Id. (emphasis added) (quoting United States v. Thomas, 55

- 29 - F.3d 144, 148 (4th Cir. 1995)). Here, Marshall has not established that the factors weigh in his

favor.

Factor 1: Length of Delay

If the length of delay is “presumptively prejudicial,” we must review the remaining

Barker factors. Beachem v. Commonwealth, 10 Va. App. 124, 131 (1990) (quoting Fowlkes v.

Commonwealth, 218 Va. 763, 766 (1978)). “The delay is calculated from the time of arrest.”

Ali, 75 Va. App. at 35. “It is well established that delay ‘approach[ing] one year’ is

‘presumptively prejudicial’ and requires further review.” Id. (alteration in original) (quoting

Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)).

Here, Marshall was arrested on February 27, 2018, and his jury trial began on May 3,

2021, a delay of greater than three years. This delay is longer than a year, so it is presumptively

prejudicial, triggering review of the remaining Barker factors.

Factor 2: Reason for the Delay

In assessing the second factor in Barker, the reasons for delay of trial, this Court must

“determine[] which portion of the delay between the appellant’s arrest and his trial is attributable

to him and which portion counts against the Commonwealth.” Id. at 36. In addition, this Court

also must decide “what part of any delay not attributable to the defendant was ‘justifiable.’” Id.

As this Court has explained, “Although any delay not attributable to the defendant is the

responsibility of the Commonwealth for speedy trial purposes, ‘different weights should be

assigned to different reasons’ for delay.” Id. at 42 (quoting Barker, 407 U.S. at 531). “Barker

recognizes three categories of fault for delay attributable to the government — delay that is

deliberately improper, merely negligent, and valid and unavoidable.” Id. “Deliberate delay,

such as that caused with an intent to ‘hamper the defense’ or harass the defendant, ‘should be

weighted heavily against the government,’ in this case the Commonwealth.” Id. (quoting

- 30 - Barker, 407 U.S. at 531). “Negligence in scheduling, understaffing of a prosecutor’s office, or

‘overcrowd[ing of the] courts’ receives ‘less’ weight ‘but nevertheless [is] considered since the

ultimate responsibility for such circumstances must rest with the government rather than with the

defendant.’” Id. (alterations in original) (quoting Barker, 407 U.S. at 531). “Finally, a reason

deemed ‘valid’ fully ‘justif[ies] appropriate delay.’” Id. (alteration in original) (quoting Barker,

407 U.S. at 531). After Marshall was charged and arrested, “on March 16, 2020, the Supreme

Court of Virginia issued its first judicial emergency order in response to the COVID-19

pandemic, restricting trials and non-emergency proceedings as a result.” Id. at 27. “In the

months that followed, the Supreme Court issued additional emergency orders that suspended jury

trials entirely for a period of about eight weeks.” Id. “The Court then directed that jury trials

could be resumed by each judicial circuit that received approval of a written plan detailing how

that circuit would conduct such trials safely in light of the pandemic.” Id. at 27-28. “A

pandemic-related delay is ‘valid, unavoidable, and outside the Commonwealth’s control.’”

Brown v. Commonwealth, 75 Va. App. 388, 409 (2022) (quoting Ali, 75 Va. App. at 45).

Marshall concedes that the delays from October 2018 through May 27, 2020, were

attributable to him. But even if the remainder of the delay, from May 28, 2020, to May 3, 2021,

was attributable to the Commonwealth as Marshall asserts, there is a valid justification for this

period of delay. At Marshall’s hearing on his speedy trial motion on February 1, 2021, the trial

court stated that the trial court “only recently, on January 20th . . . received a letter from the

Supreme Court . . . that stated that th[e trial c]ourt now has authority to have a jury trial in this

courthouse.” The trial court further stated that there was an “inability to [hold jury trials] within

just a few days because of the number of things that have to occur before a jury trial can

happen.”

- 31 - Thus, we conclude that the delay from May 28, 2020, to January 20, 2021, was validly

justified due to the pandemic and concerns with holding jury trials. We also conclude that the

delay from January 20, 2021, until May 3, 2021, is attributable to the ordinary course of the

administration of justice because the trial court stated that “a number of things” had to occur

before the trial court would be ready to hold jury trials after receiving the Supreme Court’s

approval. Further, the trial court did not find and Marshall does not argue that this delay was

intentional or due to the Commonwealth’s negligence. Accordingly, we conclude the entire

period of delay attributable to the Commonwealth had a valid justification.

Factor 3: Assertion of Speedy Trial Rights

“The third factor in the balancing test involves whether the accused asserted his right to a

speedy trial.” Ali, 75 Va. App. at 46. “[D]elay in asserting the right weighs against finding a

violation.” Id. “This factor also permits the court to ‘weigh the frequency and force of the

[objection to delay] as opposed to attaching significant weight to a purely pro forma objection.’”

Id. (alteration in original) (quoting Rogers v. Commonwealth, 5 Va. App. 337, 347 (1987)).

Here, Marshall first asserted his speedy trial rights on May 28, 2020. By that time, he

had been in custody for over two years. Cf. id. (noting that the defendant first asserted his

speedy trial rights after being in custody for six and one-half months). “Additionally, he did not

assert this right until after the Supreme Court had already begun entering judicial emergency

orders restricting the ability of circuit courts to conduct jury trials.” Id.

Therefore, while [Marshall]’s assertion of his constitutional right to a speedy trial is entitled to some weight, it deserves less weight than that to which it would have been entitled if he had raised it earlier, at a time before the pandemic severely limited the possibility that he could be tried promptly.

Id.

- 32 - Factor 4: Prejudice to Appellant

The final factor is prejudice. “The constitutional speedy trial right protects three related

interests: ‘(1) preventing oppressive pretrial incarceration; (2) minimizing the accused’s anxiety;

and (3) limiting the possibility that the defense will be impaired.’” Id. at 47 (quoting Kelley, 17

Va. App. at 546). The third interest is the “most important” “because the inability of a defendant

to prepare his case skews the fairness of the entire system.” Id. (quoting Doggett, 505 U.S. at

654).

Prejudice is assessed under a “three-tiered test” depending on the government’s “degree

of culpability” in the delay. Id. (quoting Shavin v. Commonwealth, 17 Va. App. 256, 268

(1993)). If the Commonwealth intentionally delayed prosecuting the defendant, the “‘delay will

be weighed heavily against the government’ even if ‘the accused cannot demonstrate exactly

how it has prejudiced him.’” Id. (quoting Doggett, 505 U.S. at 656-57). In contrast, “if the

Commonwealth bears no fault in the delay and proceeds ‘with reasonable diligence,’ then the

defendant’s ‘speedy trial claim w[ill] fail . . . as a matter of course however great the delay, so

long as [the defendant cannot] show specific prejudice.’” Id. (alterations in original) (quoting

Doggett, 505 U.S. at 656). If the delay was “caused by governmental negligence,” it “occupies

the middle ground.” Id. (quoting Doggett, 505 U.S. at 656-57).

“To prove even generalized prejudice based on one of the first two interests identified in

Barker (preventing oppressive pretrial incarceration and minimizing the accused’s anxiety), a

defendant must establish a particularly prolonged or restrictive period of incarceration or a level

of anxiety exceeding that faced by others awaiting trial.” Id. at 48; see id. at 49-50 (concluding

that the defendant’s general assertion that “his ‘extended’ incarceration . . . was ‘oppressive’”

“d[id] not meet the standard for proving the required degree of prejudice”). “To prove specific

prejudice under the third interest (limiting the possibility of impairing the defense), a defendant

- 33 - must show ‘in what specific manner’ factors such as missing witnesses, missing evidence, or

improved access to counsel ‘would have [impaired or] aided the defense.’” Id. at 49 (alteration

in original) (quoting United States v. Medina, 918 F.3d 774, 782 (10th Cir. 2019)); see Kelley, 17

Va. App. at 548 (“In the absence of some showing or suggestion by Kelley that facts or evidence

favorable to him existed which [the witness] had forgotten or could not recall, it is mere

speculation that [the witness]’s memory loss impaired Kelley’s defense.”).

Here, as we hold in our analysis of factor two above, the delay attributable to the

Commonwealth—due to the pandemic and attributable to the ordinary course of the

administration of justice—was validly justified. Thus, Marshall must show specific prejudice.

The trial court found that Marshall had not established any specific prejudice. Marshall argues

that “[h]e was subject to unnecessary anxiety and concern” and that “[a]ny chance of finding

information to corroborate Rice’s allegations” that she was shot in a drive-by shooting “was

remote at best.” Yet, we conclude that Marshall’s general assertion that his incarceration caused

him “unnecessary anxiety and concern” does not meet the standard for proving the required

degree of prejudice. We also conclude that he has not met the standard for showing specific

prejudice to his defense. He has only argued generally that the delay resulted in a remote chance

of finding information about an alleged drive-by shooting as the cause of Rice’s gunshot

wounds. Marshall has not shown or suggested that specific facts or evidence favorable to him no

longer existed as a result of the delay. Thus, Marshall has not made the requisite showing of

prejudice under this factor.

Weighing all Four Factors

All four factors, considered together, weigh in favor of the Commonwealth. Although

the length of delay triggers a review of the other factors, as the delay attributable to the

Commonwealth is validly justified, factor two weighs in the Commonwealth’s favor. Factor

- 34 - three is entitled to some, but not much, weight. Because Marshall failed to make the requisite

showing of prejudice under factor four, this factor weighs in the Commonwealth’s favor. Thus,

we hold that Marshall’s speedy trial rights were not violated, and the trial court did not err in so

finding.

IX. Imposition of Sentence Outside Sentencing Guidelines

Marshall argues that the trial court abused its discretion in imposing a sentence that

exceeded the applicable sentencing guidelines. We disagree because Marshall’s sentences did not

exceed the statutory maximums.

“We review the trial court’s sentence for abuse of discretion.” Scott v. Commonwealth,

58 Va. App. 35, 46 (2011). “[W]hen a statute prescribes a maximum imprisonment penalty and

the sentence does not exceed that maximum, the sentence will not be overturned as being an

abuse of discretion.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Alston

v. Commonwealth, 274 Va. 759, 771-72 (2007)). “The sentencing guidelines are advisory only

and do not require trial courts to impose specific sentences.” Runyon v. Commonwealth, 29

Va. App. 573, 577-78 (1999). “[T]he recommended sentencing ranges contained in these

discretionary guidelines are not binding on the trial judge but, rather, are mere tools to be used

by the judge in fixing an appropriate sentence within the limitations established by the statute

governing punishment for the particular crime.” Luttrell v. Commonwealth, 42 Va. App. 461,

465 (2004). A judge’s failure to follow the sentencing guidelines “shall not be reviewable on

appeal or the basis of any other post-conviction relief.” Code § 19.2-298.01(F). Accordingly,

we may only consider whether the sentence fell outside the permissible statutory range. See

Smith v. Commonwealth, 26 Va. App. 620, 626 (1998); Valentine v. Commonwealth, 18

Va. App. 334, 339 (1994).

- 35 - Here, the trial court did not abuse its discretion in sentencing Marshall because the

sentences did not exceed the statutory maximums. The trial court sentenced Marshall to 20 years

of imprisonment for aggravated malicious wounding, 2 years for attempted murder, 5 years for

abduction, 3 years for strangulation, and 3 years for using a firearm in the commission of a

felony. These sentences were within the ranges set by the legislature. See Code

§§ 18.2-10, -26, -32, -47, -51.2, -51.6, and -53.1. Thus, we hold that the trial court did not abuse

its discretion in its determination of Marshall’s sentence.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

Affirmed.

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