COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Duff Argued at Alexandria, Virginia
ROBERT CHARLES LAIDLER MEMORANDUM OPINION * BY v. Record No. 0161-99-4 JUDGE CHARLES H. DUFF MARCH 28, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY Perry W. Sarver, Judge Designate
Daniel J. Travostino for appellant.
Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Robert Laidler (appellant) was convicted of two counts of
malicious wounding and one count of assault and battery. On
appeal, he contends that the trial court erred in refusing to
admit expert testimony, in refusing to admit photographs depicting
his injuries, in finding sufficient evidence to support the
assault and battery conviction, in refusing jury instructions on
accident and unlawful wounding, and in failing to dismiss the
indictments based on a statutory speedy trial violation. For the
reasons stated below, we affirm in part and reverse and dismiss in
part.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. BACKGROUND
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
So viewed, the evidence proved that Brenda Scott ("Brenda"),
who was separated from her husband Charlie Scott ("Charlie"),
shared a house with appellant in February 1998. Around February
16, 1998, Brenda moved out of the house she shared with appellant
and began staying at Gary Kitchen's house because a recent storm
had flooded the road to Brenda's house and because she and
appellant were not "getting along." On February 21, 1998, when
Brenda arrived at Kitchen's house after work, appellant was there.
Also present were Peggy Polson, James Polson, and Jimmy Hottle,
who accompanied appellant. While discussing their relationship,
appellant and Brenda argued, causing Kitchen to ask appellant to
leave.
After appellant and Hottle left the house, Cindy Turner,
Charlie, Roger Dellinger and Dellinger's girlfriend visited
Kitchen's house. Jim Clark and Clark's girlfriend, Pam, arrived a
short time later. During the evening, Brenda, Charlie, Turner,
Dellinger and Dellinger's girlfriend left Kitchen's house.
Between 11:30 p.m. and midnight, Kitchen received a telephone
call from appellant. Thinking it was Charlie, Kitchen addressed
the caller as "Charlie," told him it was late and asked when the
- 2 - group would return. According to Kitchen, appellant said, "'I'll
have something for them when I get there.'" Kitchen then realized
the caller was appellant.
Appellant arrived at Kitchen's house fifteen minutes later,
accompanied by Hottle. Clark and Kitchen went outside and talked
with appellant, who was angry at being told to leave earlier.
Kitchen and Clark then asked appellant to leave. Appellant said
he was not leaving and that he wanted to see Brenda. Appellant
told Clark he had something in the car for him, at which time
appellant entered his car and came out holding his hand behind his
back.
At that moment, the car containing Charlie, Brenda, Dellinger
and Turner pulled up. Appellant approached the returning car.
Fearing for Brenda's safety, Clark tried to block appellant's way,
at which time appellant struck Clark several times, inflicting
stab wounds to his lip, nose, shoulder and arm. Kitchen realized
that appellant had a knife. Several of the men then disarmed
appellant and threw the knife into appellant's car.
Thereafter, appellant and Hottle entered appellant's car.
Appellant then exited the car, approached Brenda and stabbed her
in the stomach. As a result of the stab wound, Brenda required
surgery and was hospitalized for five days.
Turner was also injured in a scuffle with appellant. While
appellant faced away from Turner, she "jumped on [appellant's]
back, and brought him to the ground . . . and proceeded hitting
- 3 - him." After jumping on appellant's back, Turner and appellant
fell to the ground. Turner landed on her buttocks. She later
discovered she had sustained a wound to her left buttock.
Dr. Joseph A. Haydu treated Clark and Brenda in the emergency
room. Clark sustained, inter alia, "some complicated facial
lacerations, bruises, [and] a laceration on his left shoulder,
back." According to Dr. Haydu, Clark's "lacerations were quite
complex" and likely required "over forty or fifty stitches."
Brenda's knife wound penetrated "the muscles of her abdomen,"
requiring surgery. She was unable to work for six weeks.
None of the Commonwealth's witnesses saw anyone other than
appellant armed with a weapon. Moreover, no Commonwealth's
witness saw anyone strike appellant until after appellant stabbed
Clark.
EXPERT TESTIMONY
At trial, appellant sought to have Dr. Joseph Ballo provide
expert testimony that the facial injuries sustained by Clark
were caused by a blunt object like a fist rather than by a
knife. Clark's medical records were never admitted into
evidence, Dr. Ballo was not present during Dr. Haydu's testimony
and Dr. Ballo never examined Clark. Appellant wanted Dr. Ballo
to base his opinion on photographs of Clark's face admitted at
trial and on hypothetical questions posed to Dr. Ballo by
defense counsel based on defense counsel's recollection of Dr.
Haydu's testimony. Because Dr. Ballo was not present when Dr.
- 4 - Haydu testified and because Dr. Haydu reviewed his personal
medical records pertaining to Clark's injuries before he
testified, records that were not admitted at trial, the trial
judge refused to allow Dr. Ballo to testify.
Assuming without deciding that the trial court erred in
refusing to allow Dr. Ballo to provide expert opinion testimony
based upon his review of the photographs of Clark's injuries and
hypothetical questions based on Dr. Haydu's testimony, we find
any error harmless.
In Virginia, non-constitutional error is harmless "when 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." "[A] fair trial on the merits and substantial justice" are not achieved if an error at trial has affected the verdict. Consequently, under Code § 8.01-678, a criminal conviction must be reversed unless "it plainly appears from the record and the evidence given at the trial that" the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc) (citation omitted).
A review of the record demonstrates that the proffered
testimony had no effect upon the verdict finding appellant
guilty of the malicious wounding of Clark. Appellant brandished
a knife and attacked Clark, who merely tried to stand in
- 5 - appellant's path to prevent an attack on Brenda Scott.
Appellant bore no animus toward Clark, and Clark initiated no
force against appellant, who caused serious wounds to Clark's
face, shoulder and arm. It is uncontroverted that appellant
stabbed Clark in the shoulder and in the arm after injuring
Clark's face, and Clark testified that he initially "thought
[appellant] had hit [him]" until he heard Kitchen yell that
appellant had a knife.
Moreover, while cross-examining Dr. Haydu about the injury
to Clark's lip, appellant's attorney elicited testimony that the
injury could have been caused by "[a] fist, a knife, [or] a
fall." Defense counsel was also allowed to ask Dr. Haydu
whether he had ever "encountered lacerations [inside the mouth]
where the history was other than from a knife?" Dr. Haydu
responded, "Yes."
The record contained evidence that appellant sought to
elicit from Dr. Ballo, namely, that the lip wound could have
been caused by a fist. Furthermore, the evidence showed that
appellant brandished a deadly weapon and stabbed Clark, who was
unarmed, in the shoulder and arm. Accordingly, any error was
harmless and had no effect on the jury's verdict of malicious
wounding.
PHOTOGRAPHS OF APPELLANT'S INJURIES
Appellant asked the trial court to admit four photographs
taken of appellant two days after the crimes. The trial court
- 6 - refused to admit the photographs because bruises take time to
appear and the photographs did not accurately depict appellant's
appearance at the time of the crimes.
At trial, appellant's attorney explained, "the reason I
offered the photographs was just to corroborate the fact that
[appellant] was injured." On appeal, appellant contends the
photographs supported his "assertion that he was struck by a
tire iron" and they were "corroborative evidence supporting
[his] theory" that he brandished the knife only after being
attacked. Appellant also argues for the first time on appeal
that the photographs "materially corroborated [his] insanity
defense." Assuming the trial court erred in ruling the
photographs inadmissible, we find such error harmless.
The trial court permitted appellant to describe the
injuries he allegedly received during his attacks on the
victims. Also, Dorothy Smallwood, a bail bondsman, testified
that she visited appellant the day after the crimes. Smallwood
testified that appellant "had two black eyes," "an open wound
across his nose," "a bruise and scrape across the head," an
apparent puncture wound on his ear and a "blood-red" eye that
"was painful to look at." Moreover, a sheriff's deputy
testified that appellant had a cut on his nose and was covered
with blood when she arrested him. Also, Kitchen and Dellinger
testified that after appellant initiated his attack on Clark,
Dellinger punched appellant in the face trying to disarm him.
- 7 - Because appellant was able to present evidence describing his
facial injuries, any error in excluding the photographs was
harmless.
As to appellant's assertion that the photographs were
necessary to establish his insanity defense, appellant failed to
make this argument to the trial court. "The Court of Appeals
will not consider an argument on appeal which was not presented
to the trial court." Ohree v. Commonwealth, 26 Va. App. 299,
308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18. Accordingly,
Rule 5A:18 bars our consideration of this question on appeal.
Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
ASSAULT & BATTERY OF CINDY TURNER
Assault and battery . . . requires proof of "an overt act or an attempt . . . with force and violence, to do physical injury to the person of another," "whether from malice or from wantonness," together with "the actual infliction of corporal hurt on another . . . willfully or in anger." One cannot be convicted of assault and battery "without an intention to do bodily harm -- either an actual intention or an intention imputed by law . . . ."
Boone v. Commonwealth, 14 Va. App. 130, 132-33, 415 S.E.2d 250,
251 (1992) (citations omitted).
Turner jumped on appellant's back, forced him to the ground
and, as a result of her action, sustained an injury when she hit
the ground. There was no evidence that appellant threatened or
directed any violence towards Turner. Thus, the record contains
- 8 - no evidence that appellant committed "an overt act or an attempt
. . . with force and violence, to do physical injury to" Turner
or that appellant possessed the requisite intent to do bodily
harm to Turner. Therefore, there was insufficient evidence to
support appellant's conviction for the assault and battery of
Turner. Accordingly, that conviction is reversed, and the
indictment is dismissed.
JURY INSTRUCTION: UNLAWFUL WOUNDING
Appellant contends that the trial court erred in refusing
his four proposed instructions defining unlawful wounding. The
instructions related to the injuries to Clark and Brenda and
defined sudden heat of passion and mutual combat. 1
"When one instruction correctly states the law, the trial
court does not abuse its discretion by refusing multiple
instructions upon the same legal principle." Cirios v.
1 Contrary to appellant's assertion that the "instructions were taken from the Virginia Model Jury Instructions, No. 34.500 and are correct statements of the law," the current edition of Virginia Model Jury Instructions contains no Instruction No. 34.500. Chapter 34 of the Virginia Model Jury Instructions relates to Illegal Gambling. Chapter 33 of the Virginia Model Jury Instructions relates to homicide, and Instruction No. 33.500 contained in that chapter provides an instruction on voluntary manslaughter, which requires the Commonwealth to prove an intentional killing, committed while "in the sudden heat of passion upon reasonable provocation; [or] in mutual combat." I Virginia Model Jury Instructions, Criminal 33.500 (1999 cum. supp.). Moreover, the Model Instruction in Chapter 37, entitled "Malicious Wounding and Lesser Included Offenses Combined Instruction," contains no language of mutual combat. See II Virginia Model Jury Instructions, Criminal 37.100 (1999 cum. supp.).
- 9 - Commonwealth, 7 Va. App. 292, 303-04, 373 S.E.2d 164, 170
(1988). The principles pertaining to aggravated malicious
wounding, malicious wounding, unlawful wounding and heat of
passion were sufficiently set forth in granted Instructions 8, 9
and 12. Instructions 8 and 9 instructed the jury that if it
finds that the Commonwealth failed to prove malice, then it
should find appellant guilty of unlawful wounding of Clark and
Scott, respectively. Instruction 12 defined malice and
instructed the jury that "[h]eat of passion excludes malice."
Furthermore, we find the evidence did not support an instruction
on mutual combat. See Harper v Commonwealth, 165 Va. 816, 820,
183 S.E. 171, 173 (1936) (holding that "[o]ne who is assaulted
may and usually does defend himself, but the ensuing struggle
cannot be accurately described as mutual combat").
The trial court properly and sufficiently instructed the
jury regarding unlawful wounding. Accordingly, the trial court
did not err in refusing appellant's proffered instructions.
STATUTORY SPEEDY TRIAL VIOLATION
Appellant contends the trial court "erred in not dismissing
the indictments because of failure to try [him] within the time
period prescribed in the speedy trial statute."
"The protection granted an accused under [Virginia's speedy
trial statute] is not self-operative. 'It may be claimed, or it
may be waived.' Failure to invoke the provisions of the statute
until after final judgment is a waiver of the protection
- 10 - afforded thereunder." Brooks v. Peyton, 210 Va. 318, 321, 171
S.E.2d 243, 246 (1969) (involving Code § 19.1-191, former speedy
trial statute) (citation omitted). See also Stephens v.
Commonwealth, 225 Va. 224, 230, 301 S.E.2d 22, 25 (1983)
(stating same as it relates to Code § 19.2-243, the current
speedy trial statute). Moreover, "[t]he Court of Appeals will
not consider an argument on appeal which was not presented to
the trial court." Ohree, 26 Va. App. at 308, 494 S.E.2d at 488;
see Rule 5A:18.
Although counsel and the trial judge informally discussed
the speedy trial requirements, the record fails to show that
appellant alleged a speedy trial violation or moved to dismiss
the indictments based on Code § 19.2-243.
Accordingly, Rule 5A:18 bars our consideration of this
question on appeal. Moreover, because delays occasioned by
appellant's requested mental evaluations and his notice of
insanity defense were attributable to appellant so that the
trial commenced within the statutory time limit, the record does
not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18.
CONCLUSION
In summary, we affirm appellant's malicious wounding
convictions, finding any errors in refusing to admit the
testimony of Dr. Ballo or the photographs depicting appellant's
injuries harmless. Because there was insufficient evidence that
- 11 - appellant assaulted Turner, we reverse that conviction and
dismiss the charge. Because the trial court correctly
instructed the jury on unlawful wounding and because a mutual
combat instruction was not warranted under the facts, the trial
court did not err in refusing appellant's proffered
instructions. We do not address appellant's alleged violation
of the speedy trial statute because he failed to make this
argument in the trial court.
Affirmed in part, reversed and dismissed in part.
- 12 - Benton, J., concurring, in part, and dissenting, in part.
I concur in the parts of the opinion reversing the
conviction of Robert Charles Laidler for assault and battery,
upholding the trial judge's refusal of instructions, and finding
that the speedy trial issue was not properly preserved for
appeal. I dissent, however, from the parts of the opinion
finding harmless the trial judge's refusal to permit Dr. Ballo
to testify and refusal to admit in evidence Laidler's
photographs.
I.
According to the Commonwealth's witnesses, Laidler stabbed
and cut Jim Clark with a knife during a verbal argument. They
testified that no physical altercation occurred between Clark
and Laidler before Laidler stabbed and cut Clark several times.
In his defense, Laidler testified that he and Clark argued
after Clark threatened him. The argument then escalated into a
fistfight between them. Laidler testified that Gary Kitchen,
who was standing behind Clark, walked off during the fight. As
Laidler and Clark fought, someone hit Laidler "with [a blunt]
object, across the bridge of his nose." Laidler testified that
he then rose from the ground, reached inside his car for a knife
to protect himself, and cut Clark once.
The trial judge erred in ruling that Laidler could not call
as a witness Dr. Joseph Ballo. The record establishes that Dr.
Ballo would testify that Clark's facial injuries were caused by
- 13 - fists rather than a knife. That testimony, if believed by the
jury, would have tended to prove, consistent with Laidler's
defense, that he and Clark had been in a fistfight.
The rule is well settled that an expert in a criminal case
may "testify . . . on the basis of evidence adduced at trial."
Buchanan v. Commonwealth, 238 Va. 389, 416, 384 S.E.2d 757, 773
(1989). The record reveals that the evidence at trial provided
a sufficient factual basis for the admission of Dr. Ballo's
opinion. Clark's photograph had been admitted in evidence. In
addition, Dr. Joseph Haydu had extensively testified concerning
Clark's injuries. Thus, the trial judge should have permitted
Dr. Ballo to "give an opinion based upon facts in evidence
assumed in a hypothetical question." Simpson v. Commonwealth,
227 Va. 557, 565, 318 S.E.2d 386, 391 (1984) (citation omitted).
Moreover, the error was not harmless. "Error will be
presumed prejudicial unless it plainly appears that it could not
have affected the result." Joyner v. Commonwealth, 192 Va. 471,
477, 65 S.E.2d 555, 558 (1951). Thus, to find harmless error
"'it [must] plainly appear[] from the record and the evidence
given at the trial that 'the error did not affect the verdict."
910, 911 (1991) (en banc) (quoting Code § 8.01-678).
Whether Clark's facial wounds were caused by a knife or by
a fist was put at issue by the conflict between Laidler's
testimony and the testimony of the Commonwealth's witnesses.
- 14 - Laidler's defense to this prosecution was self-defense. He also
contended that he acted in the heat of passion and not
maliciously. The trial judge instructed the jury on both of
those issues.
The trial judge's ruling that barred Dr. Ballo's testimony
deprived Laidler of relevant evidence clearly germane to his
defense. Laidler claimed that he and Clark engaged in a
fistfight before Laidler was assaulted with a blunt instrument.
If Dr. Ballo's testimony was believed, it provided the jury with
a basis to credit Laidler's testimony explaining why he reached
for his knife. Furthermore, Dr. Haydu's testimony was
qualitatively different than the proffered testimony of Dr.
Ballo. Dr. Haydu merely testified that a laceration, which is
"a tearing or cutting," may be caused by "a fist, a knife, a
fall." He also testified that he had encountered lacerations
that were caused by a fist. That testimony is significantly
more general than Dr. Ballo's proffered testimony that Clark's
facial injuries were caused, in fact, by a fist, not a knife.
The Commonwealth had the burden to prove from the evidence
in the record that the trial judge's erroneous ruling was
harmless. Joyner, 192 Va. at 476-77, 65 S.E.2d at 558; Beverly
v. Commonwealth, 12 Va. App. 160, 164, 403 S.E.2d 175, 177
(1991). This record does not establish that the error was
- 15 - II.
The trial judge also erred in refusing to admit in evidence
photographs showing Laidler's injuries. When the party offering
photographic evidence demonstrates its relevance, it is
admissible. See Lucas v. HCMF Corp., 238 Va. 446, 451, 384
S.E.2d 92, 95 (1989). The Supreme Court has "long recognized
[the relevance of photographs] and admitted photographs . . .
[to illustrate the testimony of a witness] by holding that a
photograph which is verified by the testimony of a witness as
fairly representing what that witness has observed is admissible
in evidence." Ferguson v. Commonwealth, 212 Va. 745, 746, 187
S.E.2d 189, 190 (1972).
Furthermore, the decision to exclude from evidence the
photographs of Laidler's injuries, while admitting the
photographs of Clark's injuries, was unduly prejudicial to
Laidler. The jury had both the testimonial descriptions and
photographic proof of Clark's injury to review in its
deliberations. In considering Laidler's claim that Clark
inflicted an equal if not greater injury to him, however, the
jury had only testimonial evidence without any tangible
corroboration. Due to the imbalance in the evidence on this
critical issue, we cannot say that "the error did not affect the
verdict." Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 911.
The photograph would have corroborated Laidler's testimony on an
issue material to his defense and provided a precise
- 16 - counterpoint to the damaging photographic evidence admitted to
buttress the testimony of the Commonwealth's witnesses.
For these reasons, I would reverse the malicious wounding
convictions and remand for a new trial.
- 17 -