COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued by teleconference
QUY THI NGUYEN, S/K/A
QUI THI NGUYEN
MEMORANDUM OPINION * BY
v. Record No. 0432-02-4 JUDGE ROBERT J. HUMPHREYS
MARCH 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Jonathan Shapiro (Law Offices of Jonathan
Shapiro, P.C., on briefs), for appellant.
Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Quy Thi Nguyen appeals her conviction, after a jury trial,
for first-degree murder and for use of a firearm in the commission
of murder. Appellant contends the trial court erred in allowing
the Commonwealth's expert psychologist to testify: 1) that "the
recognized defense of 'irresistible impulse' should not be
considered"; 2) that "[appellant's] version of events could not be
trusted"; and 3) as to statements made to him by appellant's
estranged husband. Appellant further argues that the trial court
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
erred in refusing to allow her to present testimony concerning an
incident she had witnessed, where the victim "order[ed] a third
person to commit an assault." For the reasons that follow, we
affirm the judgment of the trial court.
A.
Appellant failed to preserve for appeal the issues she
raises with regard to the testimony of the Commonwealth's
psychologist, Dr. William J. Stejskal. Indeed, appellant
concedes that she raised no objection to the testimony at trial.
Rule 5A:18 provides that "[n]o ruling of the trial
court . . . will be considered as a basis for reversal unless
the objection was stated together with the grounds therefor at
the time of the ruling, except for good cause shown or to enable
the Court of Appeals to attain the ends of justice." Appellant
thus asks us to consider these issues on appeal pursuant to the
"good cause" or "ends of justice" exceptions to Rule 5A:18,
contending that the admission of Dr. Stejskal's testimony served
to negate her "recognized" defense of irresistible impulse. We
disagree and find that we are unable to consider appellant's
assigned errors in this regard.
We first note that, despite appellant's claim to the
contrary, it is clear that she raises a claim of ineffective
assistance of trial counsel on appeal to this Court. However,
we have long recognized that claims of ineffective assistance of
counsel may no longer be raised on direct appeal. In fact, Code
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§ 19.2-317.1, which allowed direct appeal of such claims under
certain circumstances, was repealed in 1990. Therefore, we do
not consider this issue further.
Moreover, it is axiomatic that the "good cause" exception
to Rule 5A:18 relates to the reason why an objection was not
stated at the time of the ruling. See Townes v. Commonwealth,
234 Va. 307, 319, 362 S.E.2d 650, 656-57 (1987) (holding that
pro se representation is not "good cause" for failing to
object), cert. denied, 485 U.S. 971 (1988); Snurkowski v.
Commonwealth, 2 Va. App. 532, 536, 348 S.E.2d 1, 3 (1986)
(holding that futility of an objection is not "good cause" for
failing to object); see also Campbell v. Commonwealth, 14
Va. App. 988, 996, 421 S.E.2d 652, 656-57 (1992) (Barrow, J.,
concurring). On this record, we see no reason for appellant's
failure to object which would satisfy the "good cause" exception
to Rule 5A:18.
Finally, as appellant recognizes,
[u]nder Rule 5A:18 we do not notice the
trial errors for which no timely objection
was made except in extraordinary situations
when necessary to enable us to attain the
ends of justice. The laudatory purpose
behind Rule 5A:18, and its equivalent
Supreme Court Rule 5:25, frequently referred
to as the contemporaneous objection rules,
is to require that objections be promptly
brought to the attention of the trial court
with sufficient specificity that the alleged
error can be dealt with and timely addressed
and corrected when necessary. The rules
promote orderly and efficient justice and
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are to be strictly enforced except where the
error has resulted in manifest
injustice. . . .
[In determining] [w]hether we apply the
bar of Rule 5A:18 or invoke the ends of
justice exception, we must evaluate the
nature and effect of the error to determine
whether a clear miscarriage of justice
occurred. We must determine whether the
error clearly had an effect upon the outcome
of the case. The error must involve
substantial rights.
Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10
(1989) (emphases added). "Thus, the 'ends of justice' provision
may be used when the record affirmatively shows that a
miscarriage of justice has occurred, not when it merely shows
that a miscarriage might have occurred." Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).
Ordinarily, in the criminal context,
application of the ends of justice exception
is appropriate where "[the accused] was
convicted for conduct that was not a
criminal offense" or "the record
affirmatively proves that an element of the
offense did not occur." However, some
procedures are so crucial that a court's
failure to adhere to them constitutes error
that is clear, substantial and material even
in the absence of affirmative proof of error
in the result.
Herring v. Herring, 33 Va. App. 281, 287, 532 S.E.2d 923, 927
(2000) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221-22,
487 S.E.2d 269, 272-73 (1997)).
Accordingly, if the record before us proved that, under no
circumstances, could the jury have convicted appellant of the
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crimes charged, there would be a reasonable basis for this Court
to consider these issues, raised for the first time on appeal.
However, the record in this case does not clearly demonstrate
that there was no evidence, absent Stejskal's testimony, upon
which appellant could have been convicted of the crimes charged.
Nor does the record reflect any "material" failure on the part
of the trial court to adhere to "crucial procedure" as it
pertained to Dr. Stejskal's testimony. Thus, we find that the
ends of justice, likewise, do not require that we consider these
issues for the first time on appeal.
B.
Appellant next contends that the trial court erred by
refusing to allow her to testify that, on an occasion prior to
the shooting, she had witnessed the victim order another
individual to physically harm another person. We once again
disagree.
Here, appellant was charged with first-degree murder.
Therefore, the Commonwealth had the burden of proving that
appellant killed the victim and that the killing was willful,
deliberate, and premeditated. See Stokes v. Warden, 226 Va.
111, 117, 306 S.E.2d 882, 885 (1983).
"In determining whether evidence is admissible, much must
be left to the sound discretion of the trial court." Spencer v.
Commonwealth, 240 Va. 78, 99, 393 S.E.2d 609, 622 (1990)
(citation omitted)). "As a general rule, a litigant is entitled
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to introduce all competent, material, and relevant evidence
tending to prove or disprove any material issue raised, unless
the evidence violates a specific rule of admissibility." Tarmac
Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458
S.E.2d 462, 465 (1995). "'Evidence is admissible if it is both
relevant and material,' and it is inadmissible if it fails to
satisfy either of these criteria." Peeples v. Commonwealth, 30
Va. App. 626, 640-41, 519 S.E.2d 382, 389 (1999) (quoting
Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 198, 361
S.E.2d 436, 441, 442 (1987)). "Evidence is relevant if it has
any logical tendency, however slight, to establish a fact at
issue in the case." Ragland v. Commonwealth, 16 Va. App. 913,
918, 434 S.E.2d 675, 678 (1993). "Evidence is material if it
relates to a matter properly at issue." Evans-Smith, 5 Va. App.
at 196, 361 S.E.2d at 441.
Here, the trial court refused to admit appellant's
testimony pertaining to the incident in question, stating:
because then it gets into the whole
collateral issue of [the other individual]
or what else happened.
. . . But that's not an issue of
interpretation of what [the victim's],
quote, order was, and this sort of thing.
If it was physical action by [the victim]
directly where he was doing the fighting or
the hurting, that's one thing. But I think
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when you get into an order to someone else,
that's not.
Indeed,
[i]t is well settled in Virginia that where
an accused adduces evidence that he acted in
self-defense, evidence of specific acts is
admissible to show the character of the
victim for turbulence and violence, even if
the accused is unaware of such character.
Barnes v. Commonwealth, 214 Va. 24, 197
S.E.2d 189 (1973); Stover v. Commonwealth,
211 Va. 789, 180 S.E.2d 504 (1971); Randolph
v. Commonwealth, 190 Va. 256, 56 S.E.2d 226
(1949). We held in Jones v. Commonwealth,
196 Va. 10, 15, 82 S.E.2d 482, 485 (1954),
that "[t]he evidence and inferences
deducible therefrom may be such at times as
to justify the submission of whether or not
the killing was in self-defense, as well as
whether or not it was accidental."
Jordan v. Commonwealth, 219 Va. 852, 855, 252 S.E.2d 323, 325
(1979).
However,
"[s]uch evidence is admissible only when the
defendant has interposed a plea of
self-defense [. . .], and when a proper
foundation is laid by proof of some overt
act justifying such defense [. . .]. The
trial court should exercise a sound legal
discretion in determining whether or not the
proper foundation has been laid for the
introduction of the offered testimony."
Burford v. Commonwealth, 179 Va. 752, 767, 20 S.E.2d 509, 515
(1942) (omissions in original) (quoting State v. Jennings, 28
P.2d 448 (1934)).
The "crucial issues" in a plea of
self-defense are the accused's "state of
mind and the circumstances as they
reasonably appeared to [the accused] at the
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time of the shooting." Jones v.
Commonwealth, [217 Va. 226, 230, 228 S.E.2d
124, 125 (1976)]. The test of self-defense
is whether the accused "reasonably fear[ed]
death or serious bodily harm to himself at
the hands of his victim." McGhee [v.
Commonwealth, 219 Va. 560, 562, 248 S.E.2d
808, 810 (1978)]. Thus, "[i]t is not
essential to the right of self-defense that
the danger should in fact exist." Id.
However, when the accused fears that a
person intends to murder or inflict serious
bodily injury, and there is an "'overt act
indicative of such an intent, . . . [the
accused may be justified in] killing [or
injuring] the party by way of prevention.'"
Harper v. Commonwealth, 196 Va. 723, 731, 85
S.E.2d 249, 254 (1955) (citation omitted).
Peeples, 30 Va. App. at 643, 519 S.E.2d at 390.
In the case at bar, at the time appellant sought to
introduce the evidence of the victim's prior violent conduct,
although appellant had claimed that she shot the victim in
self-defense, she had not yet testified as to her version of the
events as they pertained to the shooting. Instead, the only
version of the events that had been proffered at that point, was
from the perspective of the Commonwealth's witnesses, who
testified that the victim went to appellant's apartment to
retrieve his belongings, that he walked over to appellant's car
to speak with her when he saw her drive into the apartment
complex parking lot, and that he was walking away from appellant
when she shot him in the back. Thus, at the time appellant
sought to introduce the evidence, there had been no "sufficient
showing" of an overt act by the victim, which would have been
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necessary for the trial court to properly admit the excluded
evidence.
Furthermore, as alluded to by the trial court, the
"specific instance" appellant sought to introduce was not a
specific instance of violence committed by the victim, but a
statement, amounting to hearsay, where the victim allegedly
ordered a third party to commit an act of violence. See
Robinson v. Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476-77
(1999) ("[H]earsay evidence is inadmissible unless it falls
within one of the recognized exceptions to the hearsay rule,
. . . [and] the party attempting to introduce a hearsay
statement has the burden of showing the statement falls within
one of the exceptions.").
Moreover, appellant failed to proffer the actual statement
and circumstances of the event, leaving the trial court with
only the ability to surmise whether or not the "order" was
actually what appellant purported – an order to do violence –
and/or whether the "order" was actually carried out.
Accordingly, on this record, we find no error in the trial
court's refusal to admit the evidence.
For these reasons, we affirm the judgment of the trial
court.
Affirmed.
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