COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
CECIL ADRIAN ALLISON
v. Record No. 0792-94-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA OCTOBER 17, 1995
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Alexander N. Levay, Public Defender (Lorie E.
O'Donnell, Assistant Public Defender; Office
of the Public Defender, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Robert B. Condon, Assistant Attorney General,
on brief), for appellee.
Cecil Adrian Allison (appellant) was convicted in a jury
trial of first-degree murder, use of a firearm in the commission
of a felony, malicious wounding, possession of a firearm by a
convicted felon, and possession of a sawed-off shotgun. On
appeal, he argues that the trial court erred in: (1) denying his
motion to sever the possession of a firearm by a convicted felon
charge from the other charges; (2) denying his motion to set
aside the verdict when the jury considered evidence aliunde; and
(3) prohibiting his psychological expert from testifying about
appellant's statements during the clinical interview. We reverse
and remand because the trial court erred in denying appellant's
motion to sever. We affirm on the expert testimony issue. We do
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
not address the jury issue because it is not likely to arise on
retrial, and thus, our remand renders it moot.
BACKGROUND
Appellant and his wife, Juanita Allison (decedent),
separated in the spring of 1992. On June 4, 1992, decedent
attended a party at the home of David Pollen (Pollen). At 10:30
p.m., decedent and other guests left the party and went to
Magpie's, a restaurant in Middleburg. Pollen stayed home and
went to bed. Shortly after going to bed, Pollen awoke to find
appellant inside his residence. Appellant struck Pollen on the
head, rendering him temporarily unconscious. When Pollen
regained consciousness, appellant was dragging him by his feet
across the floor. Pollen struggled free and ran outside.
Appellant chased him and shot at him with a sawed-off shotgun.
Appellant then went to Magpie's, where he shot his wife once in
the back of the head using a .22 caliber rifle with a telescopic
sight. At trial, the jury found appellant guilty on all counts
and sentenced him to life plus fourteen years in the state
penitentiary.
MOTION TO SEVER
Appellant argues that the trial court erred in denying his
motion to sever the charge of possession of a firearm by a
convicted felon from the remaining charges.
Rule 3A:10(b) provides as follows:
The court may direct that an accused be
tried at one time for all offenses then
pending against him, if justice does not
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require separate trials and (i) the offenses
meet the requirements of Rule 3A:6(b) or (ii)
the accused and the Commonwealth's attorney
consent thereto.
"Justice often requires separate trials where highly prejudicial
evidence of one of the crimes is not admissible in the trial of
the other." Long v. Commonwealth, 20 Va. App. 223, 226, 456
S.E.2d 138, 139 (1995). "Generally, evidence of other offenses
is inadmissible if it is offered merely to show that an accused
was likely to commit the crime for which he is being tried."
Cheng v. Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599, 603
(1990). The exceptions to the general rule allow evidence of
other offenses where the evidence "tends to prove any relevant
element of the offense charged . . . [or] where the motive,
intent or knowledge of the accused is involved." Id. at 34, 393
S.E.2d at 603 (quoting Kirkpatrick v. Commonwealth, 211 Va. 269,
272, 176 S.E.2d 802, 805 (1970)).
In Long, the defendant was charged with possession of
heroin, possession of a firearm while in the possession of
heroin, and possession of a firearm after having been convicted
of a felony. 20 Va. App. at 225, 456 S.E.2d at 138-39. The
trial court denied Long's motion to sever the possession of a
firearm after having been convicted of a felony charge. This
Court reversed the trial court:
When the jury hears that a defendant has
been convicted of a felony, a fact not
probative of an element of the offense being
tried, the evidence has a tendency to
prejudice the defendant in the minds of the
jurors. The admission of the felony
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conviction is suggestive of the defendant's
criminal propensity and tends to adversely
affect his presumption of innocence.
Id. at 227, 456 S.E.2d at 139.
This Court's recent decision in Long controls this case.
The trial court erred when it denied appellant's motion to sever
the possession of a firearm by a convicted felon charge.
Appellant's prior felony was an element of the firearm possession
charge but not an element of the murder charge. The prior felony
was not relevant to the murder charge and the fact that appellant
was a felon only served to prejudice the jury. As in Long,
despite an abundance of evidence to support the conviction, the
error cannot be deemed harmless because of the effect on the
length of the sentence imposed by the jury.
EXPERT TESTIMONY
Appellant also argues that the trial court erred in
excluding statements he made to Dr. John Wires, a clinical
psychologist, during an evaluation. Because this issue is one
that is likely to arise on retrial, we must address it.
During a pretrial hearing, appellant argued that the trial
court should allow Dr. Wires to testify about statements
appellant made during a clinical interview and then render an
opinion based on those statements. The statements reflected
appellant's version of what he did and observed the night he
killed his wife, and what circumstances caused him to kill his
wife. Appellant sought to have Dr. Wires testify about: (1) his
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wife's taunting concerning his sexual performance; (2) his wife's
infidelity; (3) the couple's alcoholism; and (4) the
circumstances surrounding the couple's separation. The trial
court held that it would allow Dr. Wires and other experts to
testify, "subject to a proper limiting instruction and to the
rule of relevancy, as to the history which they took in the
course of their examinations." However, the trial court ruled
that "any opinions which they will render must be based upon
their own personal observations or on the evidence adduced at
trial." (Emphasis in original).
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion.'" Crews v.
Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)
(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d
838, 842 (1988)). "[E]xperts in criminal cases must testify on
the basis of their own personal observations or on the basis of
evidence adduced at trial." Buchanan v. Commonwealth, 238 Va.
389, 416, 384 S.E.2d 757, 773 (1989), cert. denied, 493 U.S. 1063
(1990). "As a general rule in this Commonwealth in a criminal
case, an expert may not 'base his opinion on facts not in
evidence.'" Papuchis v. Commonwealth, 15 Va. App. 281, 283-84,
422 S.E.2d 419, 421 (1992) (quoting Simpson v. Commonwealth, 227
Va. 557, 565, 318 S.E.2d 386, 391 (1984)).
In this case, the trial court correctly found that
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appellant's statements to Dr. Wires regarding the details of the
offenses and his state of mind were inadmissible hearsay.
Appellant's statements to Dr. Wires were not the doctor's
"personal observations" from the testing and evaluation of
appellant, but statements of fact by appellant. The statements
were also not "evidence adduced at trial" because appellant did
not testify. Additionally, the trial court allowed Dr. Wires to
express an opinion regarding appellant's insanity in response to
hypothetical questions by appellant. We hold that no abuse of
discretion occurred.
Appellant argues that the trial court should have allowed
Dr. Wires to "give testimony and render an opinion or draw
inferences from facts, circumstances or data made known to or
perceived by . . . [him] at or before the hearing or trial."
Code § 8.01-401.1. 1 However, numerous cases have reaffirmed the
principle that experts in criminal cases may only testify based
1
Code § 8.01-401.1 provides as follows:
In any civil action any expert witness
may give testimony and render an opinion or
draw inferences from facts, circumstances or
data made known to or perceived by such
witness at or before the hearing or trial
during which he is called upon to testify.
The facts, circumstances or data relied upon
by such witness in forming an opinion or
drawing inferences, if of a type normally
relied upon by others in the particular field
of expertise in forming opinions and drawing
inferences, need not be admissible in
evidence.
(Emphasis added).
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upon their personal observations or facts in evidence. See,
e.g., Wright v. Commonwealth, 245 Va. 177, 197, 427 S.E.2d 379,
392 (1993), cert. granted and judgment vacated on other grounds,
___ U.S. ___, 114 S. Ct. 2701 (1994). We conclude that the trial
court's ruling in this case was correct.
Accordingly, we reverse because of the failure to sever the
possession of a firearm by a convicted felon charge and remand
for further proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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