COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and McClanahan
Argued at Alexandria, Virginia
TOBIAS ANTONIO CARRINGTON
MEMORANDUM OPINION * BY
v. Record No. 2544-07-4 CHIEF JUDGE WALTER S. FELTON, JR.
MARCH 31, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge
David J. Kiyonaga for appellant.
Donald E. Jeffrey, III, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Following a jury trial, Tobias Antonio Carrington (“appellant”) was convicted of
(1) second-degree murder, in violation of Code § 18.2-32; (2) use of a firearm in the commission
of murder, in violation of Code § 18.2-53.1; (3) malicious wounding, in violation of Code
§ 18.2-51; and (4) use of a firearm in the commission of malicious wounding, in violation of
Code § 18.2-53.1. On appeal, he contends the trial court erred in finding the evidence at trial
sufficient to support his convictions. He asserts that the testimony of his grandfather was
inherently incredible. He also contends that the trial court erred in allowing the Commonwealth
to use a hearsay statement of his mother in cross-examining his expert witness. Finding no error
on the part of the trial court, we affirm appellant’s convictions.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
On appeal, “[w]here the issue is whether the evidence is sufficient, we view the evidence
in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom.” Sandoval v. Commonwealth, 20 Va. App. 133, 135, 455 S.E.2d 730, 731
(1995). So viewed, the evidence established that, on April 2, 2006, appellant resided with his
grandfather, Henry Carrington (“grandfather”). Shortly before 8:00 p.m. that evening,
grandfather was in his bedroom, watching a movie with his friend Lee Timmons, when he
looked up and saw appellant “standing in the door[way]” to his bedroom holding a “gun there on
the side of his leg.” When grandfather asked appellant, “‘What are you doing with that gun in
your hand,’” appellant “started walking towards [grandfather], . . . lifting the gun up” in his
direction. Grandfather started to dive off the side of the bed opposite appellant when he “heard the
gun go off.” He was shot “in the back.” Grandfather “heard the gun go off again, and . . . [saw
Timmons’] head [fall] down between his lap.” Grandfather then “heard the gun go off again.”
He heard what “had to have been [appellant] falling” to the floor. After struggling to get the
phone, grandfather “called 911.” He told the 911 operator that appellant had shot him and then
killed Timmons. He also told the 911 operator that appellant killed himself. While he waited for
emergency personnel to arrive, grandfather pulled himself toward the foot of the bed and saw
appellant, who was bleeding from his head, trying to get up. Grandfather held appellant down as
he repeatedly attempted to stand up. Grandfather also saw “[t]he gun” lying near appellant.
When police officers arrived, they found grandfather on the floor by the bed. The
officers asked who shot him. Grandfather told them it was appellant. The officers found
Timmons unresponsive, with a gunshot wound to the head, slumped over on the bed. They
found appellant conscious with a gunshot wound to the head. They found a .38 special revolver
lying near appellant on the bedroom floor. Forensic evidence revealed that all three bullets were
-2-
fired from the revolver. While no fingerprints were found on the revolver, appellant’s DNA was
found on the handle of the gun. Appellant admitted to police, as well as at trial, that the gun
belonged to him. He also admitted he had the revolver on April 2, 2006 but was not sure if he
still “had it on” his person when the shooting occurred.
At trial, grandfather told the jury that, on the morning of April 2, 2006, he and Timmons
drank a “bottle of wine.” He also told them that he and Timmons “smoked” a “[t]wenty dollar[]”
“rock” of “cocaine” “between 11 to 12 . . . [i]n the middle of the day” and that they smoked a
“blunt” of marijuana at “about one o’clock” in the afternoon. Grandfather testified that, for the
past twenty years, he smoked “[t]wenty dollars” worth of cocaine a “couple of times per week.”
He also testified that he had not used any alcohol or cocaine in the afternoon or evening in
question. When asked at trial if he was “high on cocaine or . . . drunk at th[e] time” of the shooting,
grandfather responded, “No, I wasn’t.” When asked at trial if he “remember[ed] what happened,”
he testified, “Yes, I do.”
Appellant testified to the jury that he fell asleep on grandfather’s bed while grandfather
and Timmons were in the living room and that he did not remember anything until he woke up in
the hospital after the shooting. He testified that he “didn’t shoot” grandfather, Timmons, or
himself. He also testified that, since the day of the shooting, there are “thing[s] that always flash
in [his] head . . . like [he] see[s] . . . grandfather laying down and then it’s like [he is] being held
down or something.”
Forensic evidence showed that grandfather and Timmons had been shot at close range. It
also demonstrated that appellant’s head wound was inflicted at an upward angle. Appellant’s
blood was found spattered near the top of the bedroom doorframe. Gunpowder residue was
found on appellant’s right hand, as well as on both of grandfather’s and Timmons’ hands.
-3-
ANALYSIS
I. Witness Credibility
Appellant contends the evidence at trial was insufficient to convict him. He asserts that the
testimony of the Commonwealth’s only eyewitness, grandfather, was inherently incredible.
“‘When a case, civil or criminal, is tried by a jury[,] . . . the judgment of the trial court shall
not be set aside unless it appears from the evidence that such judgment is plainly wrong or without
evidence to support it.’” Charity v. Commonwealth, 49 Va. App. 581, 585, 643 S.E.2d 503, 505
(2007) (quoting Code § 8.01-680). “The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder.” Sandoval, 20 Va. App. at 138, 455 S.E.2d at
732. Unlike “an appellate court which reviews only a cold record,” Harris v. Woodrum, 3
Va. App. 428, 433, 350 S.E.2d 667, 670 (1986), the fact finder “has the opportunity to see and
hear that evidence as it is presented,” Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732. See also,
Bradley v. Commonwealth, 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955) (“The living record
contains many guideposts to the truth which are not in the printed record; not having seen them
ourselves, we should give great weight to the conclusions of those who have seen and heard
them.”). “In its role of judging witness credibility, the fact finder is entitled to disbelieve the
self-serving testimony of the accused and to conclude that the accused is lying to conceal his
guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).
Here, whether appellant shot grandfather and Timmons and then shot himself was for the
jury to decide. The jury heard the testimony of grandfather, who was present when the shooting
occurred, as to the events that occurred. It also heard forensic evidence, showing appellant’s
DNA on the pistol from which the shots were fired, as well as gunshot residue on his right hand.
It heard grandfather’s 911 call reporting the shooting, pleading for help, and identifying
appellant as the shooter. Appellant admitted to the jury that he had been present in the bedroom
-4-
at the time of the shooting and that he may have “had [the pistol] on [his person] still.” He also
testified to the jury that he was asleep at the time the shooting occurred and did not remember
anything.
We will not disturb the factual finding of a jury on issues of witness credibility unless we
“‘find[] that [the] . . . testimony [accepted by the jury] was inherently incredible, or so contrary
to human experience as to render it unworthy of belief.’” Moyer v. Commonwealth, 33 Va. App.
8, 28, 531 S.E.2d 580, 590 (2000) (en banc) (quoting Robertson v. Commonwealth, 12 Va. App.
854, 858, 406 S.E.2d 417, 419 (1991)) (internal quotation marks omitted). For testimony to be
inherently incredible as a matter of law, “it ‘must be either so manifestly false that reasonable
men ought not to believe it, or it must be shown to be false by objects or things as to the
existence and meaning of which reasonable men should not differ.’” Cardwell v.
Commonwealth, 209 Va. 412, 414, 164 S.E.2d 699, 701 (1968) (quoting Burke v. Scott, 192 Va.
16, 23, 63 S.E.2d 740, 744 (1951)).
Appellant argues that grandfather’s admission that he had been drinking and using drugs
prior to the shooting rendered his testimony inherently incredible.
“It is well settled that the testimony of a witness may be impeached by showing that he
was intoxicated at the time of the occurrence of events about which he testified. However,
intoxication only bears upon his capacity for accurate observation and correct memory.”
Burnette v. Commonwealth, 172 Va. 578, 581, 1 S.E.2d 268, 269 (1939) (citations omitted).
“‘The fact that a witness was intoxicated at or about the time of the events concerning which he
testifies . . . does not render him absolutely unworthy of credit . . . .’” Id. at 582, 1 S.E.2d at 269
(quoting 70 Corpus Juris, Witnesses, § 924, p. 764). See also, Durant v. Commonwealth, 7
Va. App. 454, 463, 375 S.E.2d 396, 401 (1988) (“‘permit[ting] a trial judge presiding over a trial
by jury to exclude a witness on account of matters merely affecting his credibility would be a
-5-
novelty in American jurisprudence’” (quoting State v. Zeezich, 210 P. 927, 928-29 (Utah
1922))).
Appellant also argues that the Commonwealth’s evidence failed to exclude all reasonable
hypotheses of innocence because “there was another person or persons in the apartment who fled
the apartment after the shooting”1 and that there was a high “probability that [appellant] did not
attempt suicide but was a victim of an attempted homicide.” By finding appellant guilty, the jury
rejected that alternative hypothesis. When a jury hearing evidence discards evidence presented
in support of an alternative hypothesis of how an event occurred, we are bound by that finding of
fact. See Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997)
(“Whether an alternative hypothesis of innocence is reasonable is a question of fact and,
therefore, is binding on appeal unless plainly wrong.” (citation omitted)). “The statement that
circumstantial evidence must exclude every reasonable theory of innocence is simply another
way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.”
Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003).
From the record on appeal, we conclude the testimony of grandfather, an eyewitness to
the events at issue, identifying appellant as the person who shot the pistol that wounded him and
killed Timmons, was not inherently incredible as a matter of law. The jury determined that
appellant was the person who shot grandfather and killed Timmons before wounding himself.
See Kelly v. Commonwealth, 42 Va. App. 347, 354-55, 592 S.E.2d 353, 357 (2004) (“When the
Commonwealth offers direct evidence from eyewitnesses whose testimony is not inherently
incredible, the jury may accept that testimony as credible and reject all conflicting evidence,
thereby determining, in essence, that no reasonable hypotheses of innocence remain.”).
1
While the evidence showed that Antonio Love, who recently had a dispute with
grandfather, was seen exiting the apartment building when police arrived, the jury made a factual
finding that appellant was the shooter.
-6-
Accordingly, we hold the trial court did not err in finding the evidence sufficient as a matter of
law to support appellant’s convictions.
II. Mother’s Hearsay Statement
Appellant contends the trial court erred in permitting the Commonwealth to question his
expert witness regarding a “hearsay statement made by appellant’s mother.” During his
cross-examination by the Commonwealth, appellant was asked if he remembered calling his mother
just before the shooting occurred. Appellant initially denied calling his mother, but later testified
she told him that he did call her and that during that conversation he told her, “this is going to hurt
you more than it’s going to hurt me.” He then testified that his mother “wouldn’t lie about it.”
Appellant did not object to this line of questioning, or to the admissibility of the conversation his
mother said she had with him. For the first time on appeal, he argues that his mother’s hearsay
statement about “hurt[ing] [her] more than . . . [him]” was highly prejudicial and outweighed any
probative value it may have had on whether he shot grandfather and himself.
Dr. Gloria Morote, an expert neuropsychologist, testified for appellant. She testified that,
based on her evaluation and testing of appellant almost a year after the incident and talking with
his mother, his sister, and his girlfriend, appellant “had not suffered from any disorders that
would place him at high risk for suicide.” During its cross-examination of Dr. Morote, the
Commonwealth asked if it would be clinically significant to her if, just prior to the shooting,
appellant had told a close family relative, “‘This is going to hurt you more than it’s going to hurt
me.’” Appellant objected that there was nothing in evidence that supported the Commonwealth’s
question. When reminded that appellant had earlier testified that his mother told him he did make
the statement and that “she wouldn’t lie about it,” the trial court overruled the objection. 2 The trial
2
Appellant’s mother was subpoenaed by the Commonwealth as a witness, but was not
called by either the Commonwealth or appellant to testify.
-7-
court stated, “Dr. Morote[] testified that . . . she base[d] her conclusion . . . on interviews with
family members, including [appellant’s] mother . . . . So I think the question is proper.”
Dr. Morote then testified that appellant’s mother had not told her about the conversation she had
with appellant just prior to the shooting.
On this record, we cannot conclude that the trial court erred in permitting the
Commonwealth to cross-examine appellant’s expert as to whether the statement made by
appellant to his mother shortly before the shooting would have affected her opinion that
appellant was not suicidal at the time of the shooting. The jury heard appellant’s testimony,
initially denying making the statement, but then admitting that his mother told him he made it
and that she would not lie about that. Moreover, appellant failed to object when the evidence of
appellant’s statement to his mother was first elicited and heard by the jury. Appellant thereby
waived any objection to the Commonwealth’s later use of that statement in questioning his
expert witness as to the basis for her opinion that appellant had not displayed suicidal tendencies
prior to the shooting. See Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167,
168 (1986) (“In order to be considered on appeal, an objection must be timely made and the
grounds stated with specificity. To be timely, an objection must be made when the occasion
arises – at the time the evidence is offered or the statement made.” (citation omitted)). As the
evidence was previously before the jury, without objection, the trial court did not abuse its
discretion in permitting the Commonwealth to ask Dr. Morote if she would have considered
appellant’s statement “to be clinically significant.” See Scott v. Commonwealth, 18 Va. App. 692,
693-94, 446 S.E.2d 619, 619 (1994) (“The scope of cross-examination in general, and the extent
of testimonial impeachment in particular, are left to the sound discretion of the trial court and are
not subject to review unless plainly abused.”).
-8-
From the record on appeal, we conclude that credible evidence presented at trial proved
that appellant shot his grandfather and killed Timmons and that the trial court did not err in
permitting the Commonwealth to cross-examine appellant’s expert witness as to the impact on
her conclusion that appellant was not suicidal based on appellant’s statement to his mother just
prior to the shooting. Accordingly, we affirm appellant’s convictions.
Affirmed.
-9-