Terry Denovis McCloud v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
TERRY DENOVIS McCLOUD
v. Record No. 2343-94-1 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA DECEMBER 5, 1995
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
A. Theresa Bliss for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Terry Denovis McCloud (appellant) was convicted of
possession of a firearm after having been convicted of a felony,
in violation of Code § 18.2-308.2. On appeal, appellant contends
that the court erred in admitting evidence that shots were fired,
a car was struck by bullets, and a passenger was injured by a
bullet. We affirm the conviction.
I.
On May 15, 1994, George Bundick, Albertina Tennell, and
Terrence Brisco went to Herman's, a night club located in
Eastville. Appellant also was there. At around 2:00 a.m., when
the club closed, Bundick, Tennell, and Brisco planned to leave in
Tennell's car. When appellant appeared at the driver's window,
Bundick was in the driver's seat, Tennell was closing the front
passenger door, and Brisco was in the rear passenger seat.
Appellant was pointing a gun at the car window.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Everyone in the car ducked down in the seats. As Bundick
began to drive away, three shots rang out. Two of the shots hit
Tennell's car, one of them injured Brisco. A bullet lodged just
inches away from Brisco's spine, causing numbness in his legs.
Bundick drove him to the hospital.
Appellant initially was indicted for aggravated malicious
wounding, shooting into an occupied vehicle, use of a firearm in
the commission of aggravated malicious wounding, and possession
of a firearm after having been convicted of a felony. On the day
of trial, however, the first three counts were "nolle prossed,"
and appellant was tried only on the charge of possession of a
firearm by a convicted felon. He was convicted, in a bench
trial, of that charge.
II.
At trial, Tennell testified first for the Commonwealth. She
stated that she saw appellant standing outside the car with a gun
in his hand. She stated that shots were fired, but that
appellant did not fire them. 1 She testified that three shots
were fired, with two of them hitting the car. She stated that
"about three seconds down the road," she knew someone had been
wounded in the shooting. Appellant voiced no objection to
Tennell's testimony.
Brisco testified next for the Commonwealth. He
testified that shots were fired and he was hit. Appellant
stated, "I'm going to object," and the court overruled the
1
Tennell testified that after she had ducked down in the
seat, she looked up, and "[appellant] and Ali had switched hands
by then."
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objection. Brisco then testified about the extent of his injury.
Bundick testified that, as he was driving away, shots were
fired and Brisco told him he had been shot. Bundick stated that
he took Brisco to the hospital. Appellant did not object during
Bundick's testimony.
Deputy Marshall then testified on behalf of the
Commonwealth. When Marshall testified that the Tennell car had
been twice struck by bullets, appellant objected. Counsel
stated, "Judge, again I'm going to object as to -- the charge
here is possession of a firearm, not anything to do with shooting
and I don't think that those pictures or the shooting itself is
relevant to this charge." The court overruled the objection.
Later, the court clarified appellant's position. The court
asked, "Your objection is that the fact that there was a gunshot
striking the car is irrelevant to this charge?" Counsel for
appellant responded, "Yes, sir."
During appellant's case, counsel asked Andrew Whaley, Garry
Custis, Larry Custis, and Keva Collins if they had heard gunfire
at Herman's club that night. These witnesses responded that they
had heard shots outside the club at closing time, although none
had seen appellant with a gun.
III.
Appellant claims on appeal that the court erred in admitting
evidence that a gun was fired, that bullets struck the Tennell
car, and that Brisco was injured, because that evidence was
irrelevant and prejudicial to him. Appellant did not object when
Tennell and Bundick testified that shots were fired. He made
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only an unspecified objection, with no grounds stated, when
Brisco testified that shots were fired and he was hit. See Rule
5A:18 (objection must be stated "together with the grounds
therefor at the time of the ruling . . . .").
Although appellant made a specific objection, on relevance
grounds, to Deputy Marshall's testimony that shots were fired,
three other witnesses had already related such evidence with
either no or an inadequate objection.
Significantly, moreover, when appellant elicited testimony
from four defense witnesses that they heard shots fired outside
Herman's at closing time, he waived any objection he may have had
to evidence that shots were fired. "'[W]here an accused
unsuccessfully objects to evidence which he considers improper
and then on his own behalf introduces evidence of the same
character, he thereby waives his objection, and we cannot reverse
for the alleged error.'" Hubbard v. Commonwealth, 243 Va. 1, 9,
413 S.E.2d 875, 879 (1992) (quoting Saunders v. Commonwealth, 211
Va. 399, 401, 177 S.E.2d 637, 638 (1970)).
Appellant did not make a timely and specific objection to
admission of evidence of Brisco's injuries. During Brisco's
testimony, appellant gave no grounds whatsoever for his
objection. During Marshall's testimony, his objection was to
evidence of a shooting and photographs of the damaged car.
Accordingly, he is barred by Rule 5A:18 from arguing on appeal
that the trial court erred in admitting evidence of Brisco's
injuries because such evidence was irrelevant and prejudicial.
Moreover, the record does not reflect any reason to invoke the
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good cause or ends of justice exceptions to Rule 5A:18.
Finally, as to the evidence that Tennell's car was struck by
bullets, appellant's objection to this evidence came only during
Marshall's testimony. Tennell already had testified, without
objection, to the fact that the car had been struck and thus the
evidence already was before the fact finder.
Further, the evidence was relevant to the charge of
possession of a firearm by a convicted felon. Tennell and Brisco
testified that they saw appellant with a gun. The fact that
shots were fired, striking the car, corroborated their testimony.
It was relevant evidence because it established that appellant
possessed a weapon, capable of firing bullets. See Jones v.
Commonwealth, 16 Va. App. 354, 357, 429 S.E.2d 615, 617, aff'd,
17 Va. App. 233, 436 S.E.2d 192 (1993) (en banc) ("Code
§ 18.2-308.2 prohibits a felon from possessing a device that has
the actual capacity to do serious harm because of its ability to
expel a projectile by the power of an explosion . . . .").
Finally, the court did not abuse its discretion in
determining that the probative value of the evidence outweighed
its prejudicial effect. See Ragland v. Commonwealth, 16 Va. App.
913, 918, 434 S.E.2d 675, 678 (1993). Appellant was tried by the
court, sitting without a jury, and "in a bench trial, the trial
judge is presumed to disregard prejudicial or inadmissible
evidence[.] . . . [T]his presumption will control in the absence
of clear evidence to the contrary." Hall v. Commonwealth, 14 Va.
App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc). See Eckhart
v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981).
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We affirm the judgment of the trial court.
Affirmed.
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