COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia
MALCOLM LARICE WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 1928-98-1 JUDGE ROBERT P. FRANK
FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Andrew G. Wiggin (Edward W. Webb, Assistant
Public Defender, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Malcolm Larice Williams (appellant) appeals his conviction of
unlawful wounding. On appeal, he contends that the trial court:
1) abused its discretion in refusing to admit opinion testimony
from an expert witness for the defense, 2) erred in refusing to
allow cross-examination of a witness for the Commonwealth
regarding an incident that occurred after the offense, and 3)
erred in refusing to allow testimony from a witness for the
defense regarding the incident that occurred after the offense.
We disagree and affirm the conviction.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Appellant and Canute Brown (victim) fought at a party on the
evening of August 17, 1997. The fight, which occurred outside,
was broken up and the two men separated. Appellant went into a
house while the victim prepared to leave the party. Then,
appellant came out of the house carrying a knife. He approached
the victim and the two men fought again. Before the fight was
broken up, appellant cut the victim on the shoulder with the
knife. The victim got into his car to leave, and appellant
shattered the driver's side window of the vehicle. Particles of
glass fell onto the victim.
Before the police arrived, appellant fled the scene. Officer
Hendricks of the Virginia Beach Police Department testified that
when he arrived at the party the victim had a laceration on his
left shoulder that was five or six inches in length. The
paramedics arrived shortly after the police. Jasen White, a
volunteer with the Virginia Beach Rescue Squad, treated the victim
at the scene. He testified that the victim did not answer when
asked if he had been stabbed. He reported the victim's injury as
an abrasion that was six to eight inches in length with minor
bleeding. The trial court permitted White to testify as to his
concept of an abrasion. White described an abrasion as similar to
the wound a person receives when he or she falls and scrapes his
or her knee.
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On September 30, 1997, Officer Monteiro of the Virginia Beach
Police Department questioned appellant about the incident at the
party. Officer Monteiro read appellant his Miranda rights, and
appellant agreed to talk with the officer. Initially, appellant
only admitted to fighting with the victim and shattering the car
window. He denied having a knife and cutting the victim. After
further questioning, appellant admitted to getting a knife but
denied using it.
A second incident between appellant and the victim occurred a
few days after the party. At trial, counsel for appellant
attempted to cross-examine a witness for the Commonwealth about
the second incident. The Commonwealth objected on the ground of
relevance. Counsel for appellant argued that the witness'
testimony would go to state of mind and motive to fabricate. The
trial judge sustained the objection. Counsel for appellant did
not make a proffer of the witness' testimony. Later, counsel for
appellant attempted to recall a defense witness to testify about
the second incident. The Commonwealth objected. Counsel for
appellant proffered the witness' testimony, but the trial judge
sustained the objection on the basis that the testimony would be
prejudicial to the Commonwealth because the Commonwealth's
witnesses had been released and there was no opportunity for
rebuttal.
The jury convicted appellant of unlawful wounding, and he was
sentenced to serve five years in the state penitentiary.
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II. ANALYSIS
Appellant contends on appeal that the trial court: 1) abused
its discretion in refusing to admit opinion testimony from an
expert witness for the defense, 2) erred in refusing to permit
cross-examination of a witness for the Commonwealth regarding an
incident that occurred after the offense, and 3) erred in refusing
to permit testimony from a witness for the defense regarding the
incident that occurred after the offense. We disagree and affirm
the conviction.
"The admissibility of evidence lies within the sound
discretion of the trial court. A trial court's evidentiary
rulings will not be disturbed on appeal unless a clear abuse of
discretion is shown." Mack v. Commonwealth, 20 Va. App. 5, 7, 454
S.E.2d 750, 751 (1986) (citing Coe v. Commonwealth, 231 Va. 83,
88, 340 S.E.2d 820, 823 (1986)).
The admission of expert testimony is
committed to the sound discretion of the
trial judge, and we will reverse a trial
court's decision only where that court has
abused its discretion. Nonetheless, expert
testimony is inadmissible on any subject on
which the ordinary lay person of average
intelligence is equally capable of reaching
his or her own conclusion.
Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992)
(citation omitted).
Prior to trial, the trial court ruled that Jasen White, the
volunteer for the Virginia Beach Rescue Squad, could not testify
as an expert witness that the victim's wound was inconsistent with
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a knife wound because he was not qualified to give opinion
testimony. The trial judge, however, permitted White to describe
the wound as an abrasion.
We hold that the trial court did not err in excluding White's
opinion testimony. We find, based on the detailed description of
the wound, that expert testimony was unnecessary in this case.
"[T]he ordinary lay person of average intelligence," id., based on
the description of the wound, could have determined whether the
injury was inflicted by a knife. Therefore, such determination
was within the province of the jury.
Appellant contends that the trial court erred in refusing to
permit him to cross-examine one of the Commonwealth's witnesses
regarding an incident that occurred several days after the party.
At trial, however, appellant did not proffer the witness'
testimony when the trial court sustained the objection.
"When an objection is sustained and evidence is rejected,
it is incumbent upon the proponent of the evidence to make a
proffer of the expected answer; otherwise, the appellate court
has no means of determining if the evidence is material or
otherwise admissible." Speller v. Commonwealth, 2 Va. App. 437,
440, 345 S.E.2d 542, 545 (1986) (citing Blue Cross v.
Commonwealth, 221 Va. 349, 357, 269 S.E.2d 827, 832 (1980)).
We find that appellant's appeal of this issue is
procedurally barred because he did not proffer the testimony of
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the witness at the time the trial court sustained the objection
to the evidence.
Appellant challenges the trial court's refusal to permit
him to recall a defense witness to testify about the incident
that occurred several days after the victim was injured at the
party.
"A trial court exercises discretion in deciding whether to
permit the recall of witnesses for further examination." Avocet
Development Corp. v. McLean, 234 Va. 658, 669, 364 S.E.2d 757,
764 (1988) (citation omitted).
The trial court refused to permit appellant to recall the
witness because the Commonwealth had released its witnesses for
rebuttal based on an earlier ruling by the trial court. The
trial court ruled that permitting recall of the witness would be
prejudicial to the Commonwealth.
The Commonwealth released its witnesses before the defense
rested and did so at its own peril. However, appellant had the
opportunity to question the witness about the incident during
direct examination. Therefore, we find no abuse of discretion
by the trial court.
For these reasons, we affirm appellant's conviction.
Affirmed.
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