Opinion
Record No. 0726-93-1
Decided: February 28, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH, Dennis F. McMurran, Judge
Dianne G. Ringer, Assistant Public Defender (Brenda C. Spry, Deputy Public Defender, on brief), for appellant.
Katherine P. Baldwin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Vincent Fred Dial (appellant) appeals from a judgment of the Circuit Court of the City of Portsmouth (trial court) that approved jury verdicts convicting him of second degree murder and use of a firearm in the commission of that felony. He contends that the evidence is insufficient to support the convictions. In addition, he asserts that the trial court erred in refusing to admit expert testimony, in limiting appellant's cross-examination of a witness, and in permitting the Commonwealth to adduce evidence of appellant's prior crimes.
When appellant contends that the evidence is insufficient, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Here, the record reveals that after finding victim's son riding a bicycle in the rain, appellant and his friend, Michelle, drove the boy to victim's house. For an unexplained reason, victim and appellant argued about appellant driving the boy to victim's house. The argument ended when appellant and Michelle left the premises, but later that night the argument resumed at the home of victim's brother-in-law, Timothy Nesbitt (Nesbitt). The later continuation of the argument appeared to end when appellant and Michelle walked away to their car; however, Nesbitt and victim followed them. The argument continued until appellant and Michelle entered their car. As Nesbitt stood by, appellant got out of his car and shot victim four times. Bullet wounds were inflicted in the back of victim's neck, side of his chest, front of his chest, and in his knee. Appellant does not deny that he shot victim; however, he claimed it was in self-defense.
Nesbitt was the Commonwealth's sole witness. He testified that he was standing beside victim when victim was shot, and that victim did not have a gun in his hands when he was shot. After the shooting, appellant fled the scene. No gun was found at the scene of the crime after victim was shot.
Dr. Faruk Presswalla, the medical examiner, testified that victim had a small amount of alcohol and cocaine in his body and that victim had used cocaine within four to six hours prior to his death, but he could not tell how victim would have been affected at the time of his death.
Dr. James Valentor (Valentor), the Commonwealth's chief forensic toxicologist, testifying for appellant, said the effects of cocaine and alcohol are variable. Outside the presence of the jury, Valentor proffered for the record that he could not predict the behavior cocaine might produce in a person after five hours. The Commonwealth's objection to appellant's attempt to question Valentor regarding the effects of cocaine on an individual was sustained.
I. Sufficiency
Viewing the evidence most favorably to the Commonwealth, as we must, we find that the evidence is sufficient to support the verdicts. The jury rejected appellant's claim that victim was armed with a gun and threatened appellant. Words alone will not justify the violent act shown here, Painter v. Commonwealth, 210 Va. 360, 363, 171 S.E.2d 166, 169 (1969), and the issue of malice was for the jury, Pugh v. Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339, 341 (1982).
II. Rejection of Expert Testimony
The expert testimony proffered was, at best, speculative or in the realm of possibility. An expert opinion based on a "possibility" is irrelevant, purely speculative, and inadmissible. Hubbard v. Commonwealth, 243 Va. 1, 13, 413 S.E.2d 875, 881 (1992); Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980). The trial court, therefore, did not err in refusing to admit the expert testimony at issue.
III. Other Crimes
Appellant testified on his behalf. On direct examination, he admitted having been previously convicted of four felonies and that he was carrying a gun in his waistband immediately prior to using it to shoot victim. He claimed that "everybody else carries them" and said that shooting "is no big thing really." On cross-examination, appellant said that when he carried the gun it was in his waistband, but it was not an everyday occurrence. The Commonwealth asked, "So you knew you weren't supposed to be in possession of a gun, didn't you?" The question did not connect appellant's carrying the gun with his prior felony convictions, nor did the question show that carrying the gun was per se illegal. The trial court has broad discretion on the issue of admissibility of evidence. Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). Under these facts, we find no abuse of trial court discretion. Moreover, even if it were error to permit the question, the response was harmless error. See Reid v. Commonwealth, 213 Va. 790, 195 S.E.2d 866 (1973).
IV. Limitation of Cross-Examination
Lastly, appellant contends that the trial court erroneously refused to permit appellant to cross-examine a witness for the Commonwealth concerning any inducement the witness may have had to testify on behalf of the Commonwealth. We agree that the trial court erred in limiting appellant's cross-examination on the issue of bias.
In Brown v. Commonwealth, 246 Va. 460, 437 S.E.2d 563 (1993), the Court said:
An accused has a right to cross-examine prosecution witnesses to show bias or motivation and that right, when not abused, is absolute. The right emanates from the constitutional right to confront one's accusers.
Id. at 464, 437 S.E.2d at 564-65.
It is well established in this Commonwealth that an accused is entitled to show that the testimony of a prosecution witness may be motivated by an expectation of leniency and thus biased. See Hewitt v. Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114 (1984); Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977).
Nesbitt was victim's brother-in-law. Appellant sought to cross-examination Nesbitt about felony cocaine charges that were pending against him at the time of trial. Outside the jury's presence, appellant proffered that Nesbitt had pending drug charges in Portsmouth; his bond had originally been $15,000; his bond was reduced to $5,000 on the same day he was visited by the Commonwealth's attorney; on the day of appellant's preliminary hearing the bond was again reduced to a recognizance bond and he was released from jail; and the drug charges were continued to a date "down the line after this trial is over." Appellant was entitled to have the jury weigh Nesbitt's responses to questions concerning that treatment for the purpose of determining potential bias and credibility. Because we cannot say it was harmless error to refuse to permit appellant to cross-examine Nesbitt on the issue of bias, for the reasons stated the judgment of the trial court is reversed and this case remanded to the trial court for a new trial if the Commonwealth be so advised.
Reversed and remanded.