COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Alexandria, Virginia
TEDDY WOLDELASSIE ARAYA
MEMORANDUM OPINION * BY
v. Record No. 0044-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Mark S. Thrash for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
A jury convicted Teddy Woldelassie Araya (appellant) for the
murder of his ex-wife, Minat Habte (Habte), in violation of Code
§ 18.2-32, and for use of a firearm in the commission of a murder,
in violation of Code § 18.2-53.1. Appellant contends that the
trial court abused its discretion by admitting into evidence an
affidavit in which Habte predicted that appellant would kill her. 1
For the reasons that follow, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
On brief, appellant also contended that the trial court
erred by failing to give a cautionary instruction but withdrew
this ground at oral argument.
I.
On July 10, 2000 appellant had a chance encounter with his
ex-wife, Habte. Appellant later told police that Habte insulted
him, told him to stop following her, and left. Appellant became
angry, followed Habte and a high-speed car chase ensued.
Habte's eyes were "really big and wide and she was gripping the
steering wheel." Appellant "was scowling" while he gave chase.
Shortly after seeing the two cars pass, witnesses heard "popping
noises" and saw Habte's car roll backwards downhill; it crashed
into a retaining wall. "[S]omebody . . . appeared to be chasing
the car from the front."
After the shooting, appellant returned to his apartment,
called 911 and told the dispatcher he just shot his wife. He
gave the dispatcher his name; told her where the shooting
occurred, including directions; and gave her a description of
Habte's car. Police went to both the scene of the shooting and
appellant's apartment. Appellant told police he followed Habte
"for about one or two blocks" and shot her "eight or nine times,
until he ran out of ammunition in the gun." Habte suffered "a
number of gunshot wounds," at least two of which were fatal.
One of Habte's wounds indicated the shooting was from "close
range."
II.
Appellant admitted that he killed Habte; but he argued that
he did so as a result of an "irresistible impulse." At trial,
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Dr. Neil Blumberg, appellant's expert, opined "to a reasonable
degree of medical certainty, that [appellant] does suffer from
. . . actually two serious mental diseases, . . . and that as a
result of those disorders he was unable to resist the impulse to
commit the crime." Specifically, he stated that appellant
suffered from
a major depressive disorder, single episode,
severe with psychotic features. And . . .
post traumatic [sic] stress disorder,
chronic. . . . In fact these two disorders
had been present for some time prior to the
offense, but certainly were present at the
time of the offense and, in my opinion,
directly led to his being unable to control
the impulse to commit the crime.
Dr. Blumberg also stated that appellant was "a pretty
non-violent person" and a "peaceful law-abiding citizen."
Dr. Blumberg opined that the shooting was "so grossly out of
character for [appellant]" that he viewed the shooting as "an
explosive outburst."
During cross-examination of Dr. Blumberg, the Commonwealth's
attorney sought to introduce into evidence an affidavit made by
Habte in September 1998 as the basis for a protective order
against appellant. 2 The Commonwealth argued the affidavit, which
the expert conceded he had reviewed, was admissible to show the
expert's bias. The affidavit states:
2
The trial court had already admitted into evidence a
redacted version of the affidavit during the Commonwealth's
case-in-chief over appellant's hearsay objection. Whether the
redacted version was properly admitted is not before us.
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On 9/24/98 my husband came in evening at
8:00 p.m. and he was staying in his own
bedroom until 10:30 p.m. After he calls me
in the bedroom and he starting [sic]
fighting and hitting me in my heart surround
and I was fented [sic] so that quickly I
called the police they came at 11:30 and
they asked him and he says this is not true.
After the police said this the 1st time we
just live [sic] him like that if there is
anything happened please call us they said.
But after them left he started fighting and
insult.
* * * * * * *
Secondly I would like to request if there is
any thing [sic] happened he is the one he
killed me because after the police depart "I
will show you I will kill you said to" so
that please give him the first and last
warning.
* * * * * * *
He said I will show you he might be kill me.
* * * * * * *
1) I am so afraid because he is in the house
so that he will [sic] hitting me or kill me.
2) He has to be far from my house and around
my job.
3) For the last and the end the government
may asked to far away from my surround.
Habte signed the affidavit under oath before the intake
officer of the Arlington County Juvenile and Domestic Relations
District Court. 3 Over appellant's objection, the trial court
3
The Juvenile and Domestic Relations District Court for
Arlington County granted a protective order for one year on
October 13, 1998 after a hearing at which both appellant and
Habte appeared. Police found a copy of the protective order in
the glove compartment of appellant's car after the shooting.
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admitted the affidavit in evidence and permitted the
Commonwealth to question appellant's expert about the contents
to establish his bias.
The jury convicted appellant of murder and use of a firearm
in committing murder. The trial court sentenced appellant to
twenty-two years for the murder and three years for the use of
the firearm, in accord with the jury's recommendation.
III.
Appellant contends the trial court abused its discretion in
admitting the affidavit into evidence. Appellant argues the
affidavit and the statements contained therein were not
probative of the expert's bias. We disagree.
"Justice does not require exclusion of evidence that is
probative of the central issue on trial and that the accused
himself chooses to interject." Kirk v. Commonwealth, 21
Va. App. 291, 298, 464 S.E.2d 162, 165-66 (1995). Dr. Blumberg
testified on direct that appellant was "a pretty non-violent
person" and that, but for the shooting, he was "an otherwise
peaceful law-abiding citizen." When appellant elicited these
statements, he opened the door for the Commonwealth to
cross-examine Dr. Blumberg on instances of appellant's violence
toward the victim. See, e.g., Satcher v. Commonwealth, 244 Va.
220, 252, 421 S.E.2d 821, 840 (1992); Newton v. Commonwealth, 29
Va. App. 433, 456, 512 S.E.2d 846, 856-57 (1999).
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Once a party has "opened the door" to
inquiry into a subject, the permissible
scope of examination on the subject by the
opposing party is "a matter for the exercise
of discretion by the trial court," and we
will not disturb the court's action on
appeal unless it plainly appears that the
court abused its discretion.
Savino v. Commonwealth, 239 Va. 534, 545, 391 S.E.2d 276, 282
(1990) (quoting Bunch v. Commonwealth, 225 Va. 423, 438, 304
S.E.2d 271, 279-80 (1983)). "In determining the weight to be
given the testimony of an expert witness, the fact finder may
consider the basis for the expert's opinion. The credibility
and weight of witnesses' testimony is determined by the fact
finder." Parrish v. Commonwealth, 38 Va. App. 607, 613, 567
S.E.2d 576, 578-79 (2002) (internal citations and quotations
omitted). The trial court did not abuse its discretion in
permitting the Commonwealth to cross-examine Dr. Blumberg on
appellant's "peaceful" nature, as this testimony was probative
of Dr. Blumberg's bias and whether he properly considered it in
the formulation of his expert opinion at trial. 4
"The bias of a witness . . . is always a relevant subject
of cross-examination." Goins v. Commonwealth, 251 Va. 442, 465,
470 S.E.2d 114, 129 (1996) (citing Norfolk & Western Railway Co.
v. Sonney, 236 Va. 482, 488, 374 S.E.2d 71, 74 (1988); Brown v.
4
"[E]xperts in criminal cases must testify on the basis of
their own personal observations or on the basis of evidence
adduced at trial." Wright v. Commonwealth, 245 Va. 177, 197,
427 S.E.2d 379, 392 (1993) (citing Buchanan v. Commonwealth, 238
Va. 389, 416, 384 S.E.2d 757, 773 (1989)).
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Commonwealth, 246 Va. 460, 464, 437 S.E.2d 563, 564-65 (1993)).
"The issue whether a particular question may be asked about a
witness' bias is a matter submitted to the trial court's
discretion." Id. (citing Shanklin v. Commonwealth, 222 Va. 862,
864, 284 S.E.2d 611, 612 (1981)). Here, the Commonwealth had
the right to test Dr. Blumberg's bias by attempting to show the
jury that Dr. Blumberg improperly discounted the information
contained in the affidavit regarding appellant's prior acts of
violence.
IV.
Moreover, even assuming admission of the affidavit was
error, we hold that any error was harmless. "The effect of an
error on a verdict varies widely depending upon the
circumstances of the case. Each case must, therefore, be
analyzed individually to determine if an error has affected the
verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 1009, 407
S.E.2d 910, 913 (1991) (internal citations and quotations
omitted). "In this case, in order to determine if it plainly
appears that the error did not affect the verdict, we must
review the record and the evidence and evaluate the effect the
error may have had on how the finder of fact resolved the
contested issues." Id. at 1007, 407 S.E.2d at 912. "An error
does not affect the verdict if we can determine, without
'usurping the jury's fact finding function, that, had the error
not occurred, the verdict would have been the same.'" Hanson v.
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Commonwealth, 14 Va. App. 173, 190, 416 S.E.2d 14, 24 (1992)
(quoting Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 911).
Erroneously admitted evidence may be harmless when it tends
to prove an undisputed fact that is also proven by other
independently derived evidence. Hooker v. Commonwealth, 14
Va. App. 454, 457-58, 418 S.E.2d 343, 345 (1992). The decisive
issue in this case was whether appellant's mind was "so impaired
by disease that he [was] totally deprived of the mental power to
control or restrain his act." Godley v. Commonwealth, 2
Va. App. 249, 251, 343 S.E.2d 368, 370 (1986) (citing Thompson
v. Commonwealth, 193 Va. 704, 718, 70 S.E.2d 284, 292 (1952)).
Appellant's expert opined that appellant suffered from two
mental defects and that these conditions "directly led to his
being unable to control the impulse to commit the crime." The
Commonwealth's expert, on the other hand, stated that appellant
did "not meet the criteria for either a cognitive impairment or
a volitional impairment that would rise to the level that's
typically associated with a finding of insanity" even if he had
a mental disease. Thus, the question before the jury was
whether appellant suffered from an irresistible impulse at the
time of the shooting, not whether the victim feared him.
"'Even though testimony is objectionable as hearsay, its
admission is harmless error when the content of the
extra-judicicial declaration is clearly established by other
competent evidence.'" West v Commonwealth, 12 Va. App. 906,
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911, 407 S.E.2d 22, 25 (1991) (quoting Schindel v. Commonwealth,
219 Va. 814, 817, 252 S.E.2d 302, 304 (1979)). See also Bowman
v. Commonwealth, 28 Va. App. 204, 212, 503 S.E.2d 241, 245
(1998); Ferguson v. Commonwealth, 16 Va. App. 9, 12, 427 S.E.2d
442, 444 (1993). Thus, we must review the evidence to determine
whether the affidavit was merely cumulative and whether the
information it contained was clearly established by other
evidence. Extensive other evidence established that the victim
feared appellant and was afraid he intended to kill her.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156,
493 S.E.2d 677, 678 (1997). So viewed, the evidence proved that
appellant had many violent confrontations with Habte during their
marriage and after their divorce in December 1999. Habte told at
least three people at different times that appellant hit her.
Habte's sister testified appellant came home one evening and "he
started arguing with [Habte] . . . he's pulling . . . and he
wanted to hit her again. . . . And she was running." Appellant
also "insulted her that she is sleeping with a man — with
different men in front of me." Habte also told her sister that
appellant "hit her . . . in her breast." Similarly, the
parties' neighbor stated that the police were called to the
marital home twice. On one occasion, Habte appeared at the
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neighbor's door claiming appellant hit her. Habte stayed with
the neighbor until the police arrived. When the neighbor later
asked appellant why he hit Habte, appellant replied he had not
hit her; rather, "he merely threw a book at her." Appellant
also told the neighbor "that [Habte's] family is a family of
whores." After Habte went to stay with a family friend for a
week, appellant admitted to the friend he had hit Habte, "he say,
The way I hit her, it wasn't that big, or a big issue to make of
it."
In September 1998, after one of these confrontations, Habte
sought and received the protective order that required appellant
to "refrain from committing further acts of family abuse."
Numerous witnesses, including Habte's sister and members of
appellant's family, testified about the protective order.
Police found copies of the protective order and Habte's affidavit
in support of the order in appellant's glovebox and among his
personal papers. Under these circumstances, we find that the
affidavit was merely cumulative of other evidence that appellant
had a history of violence toward Habte and that she sought the
help of others, including the courts, for protection.
Additionally, the evidence showed that appellant was in
control of his actions immediately after he shot Habte.
Appellant called the 911 dispatcher and told her he killed his
wife, provided the dispatcher with directions and a description
of Habte's car, and was still on the phone with the 911
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dispatcher when police arrived at his apartment. He later
revised his version of how the shooting occurred, claiming he
"blacked out." Appellant told the Commonwealth's expert:
He remembered that she was insulting to him,
. . . that she called him an obscene name
. . . . He remembers getting very angry
with her at this. He remembers that she
took something and threw it and hit him in
the face, some type of small white object.
He's not sure what it was.
And then he said that is really the last
thing that he remembered, that there was
then a blank in his memory, a complete
blank, and that the next thing that he
remembered is that he was sitting in his own
apartment, . . . with his handgun, and that
he noticed that his handgun was empty when
previously it had been fully loaded.
These actions support the Commonwealth's expert's opinion that
appellant's actions were not the product of an "irresistible
impulse."
Lastly, Dr. Blumberg testified that the content of the
affidavit was "entirely consistent with my assessment of
[appellant's] mental state." He stated that the affidavit
showed appellant "was out of touch with reality and delusional
about their relationship, viewing [Habte] as cheating on him,
conspiring against him when in fact he was having major
difficulties controlling his behavior with her." Thus,
appellant's expert conceded that the affidavit merely supported
his theory of irresistible impulse. Clearly, the record
supports that "[t]he parties have had a fair trial on the merits
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and substantial justice has been reached." Lavinder, 12
Va. App. at 1010, 407 S.E.2d at 914. Accordingly, the judgment
of the trial court is affirmed.
Affirmed.
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