Michael C McCormick, II v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia
MICHAEL C. McCORMICK, II
MEMORANDUM OPINION * BY
v. Record No. 3058-01-2 JUDGE SAM W. COLEMAN III
MAY 20, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Craig S. Cooley for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The trial court convicted Michael C. McCormick, II,
appellant, of malicious wounding and using a firearm in the
commission of a felony. On appeal, McCormick contends the trial
court erred by (1) permitting firearms expert Wendy Gibson to
testify and give her opinion about the scarcity and availability
of Kahr brand firearms in the Richmond area and (2) limiting the
cross-examination of Commonwealth's witness Stacy Hicks concerning
the extent and frequency of her drug use. Finding no error, we
affirm the trial court's judgment.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Facts
Sasha Leadbetter was socializing with friends when they
heard gunshots some distance away. Moments later, they heard
more gunshots which sounded closer. The third set of gunshots
was so close they "dropped down" as a precaution. Leadbetter
was shot in the head. Her eyes were damaged and her injuries
required surgery, including the removal of a portion of her left
frontal brain lobe.
Earlier that evening, appellant had been with Stacy Hicks
and Angela Piland at a nearby bar. When they left the bar, a
man approached them and asked for money. Appellant refused to
give the man money and said "[F]uck you, nigger, get a job."
The man ran, and appellant chased him. Hicks and Piland
returned to Piland's apartment.
Raylonzo Blathers testified that at the date and location
of the shooting he saw a white man walking down the side of the
street shooting his gun across the street and saw a black man
backing up across the street. Blathers heard the white man,
whom he identified as appellant, say, "I'm tired of you
motherfuckers taking my money." When the black man turned the
corner, the white man got into a black truck with a camper
shell, "sped" to the corner, stopped, and fired a shot down the
street.
Robert Vaughn testified that on the same date and location
he saw a black truck skid to a stop at the intersection where
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the shooting occurred. Vaughn saw a man extend his arm out of
the truck window and fire shots. After the man drove away,
Vaughn "snuck" down the block and saw a girl lying wounded in
the street.
After appellant and Hicks and Piland separated following
their encounter with the panhandler, appellant went to Steven
McNear's party. Appellant climbed over McNear's six-foot high
fence in order to get to McNear's backyard. According to
McNear, appellant was "jumping" around and appeared anxious.
Appellant told McNear he had gotten into an argument with a man
who had asked for money and had shot the man. McNear recalled
that appellant carried a Kahr brand pistol. McNear testified
appellant told him, in a later conversation, that none of what
he previously had told McNear about the shooting was true and
that he was only trying to shock McNear.
After leaving McNear's party, appellant went to Piland's
apartment and yelled for her to let him inside. When neither
Piland nor Hicks answered the door, appellant climbed in through
a window. Hicks testified that appellant told them he was
moving to Africa and said "he shot the man who asked us for some
change in the stomach three times." Appellant said, "I made the
nigger dance." When Hicks and Piland said they were going to
call the police, appellant said he was just "joking." Appellant
grabbed the phone from Hicks and broke it, and eventually left
Piland's apartment.
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The next day, Hicks noticed an article in the newspaper
about Leadbetter being shot in the area where the encounter had
occurred. When Hicks mentioned the article to appellant,
appellant became "flush" and denied knowing anything about the
shooting.
At trial, firearms expert Wendy Gibson concluded that based
on the rifling characteristics on the cartridge casings found
near the shooting the shots "probably" were fired from a Kahr
firearm. Gibson testified that based on her experience with the
sale of guns at local gun stores in the Richmond area, few Kahr
pistols are sold there. She also explained that in the four
offices of the statewide forensics laboratory, only five Kahr
pistols had come through for examination. Gibson did not
specify the time frame or total number of weapons included in
the statewide database, but testified that the Richmond office
alone examined approximately 1,500 to 2,000 firearms a year.
Appellant had a permit to carry a concealed weapon and had a
black Ford Ranger pickup truck registered in his name.
Expert Testimony
"Where the admissibility of expert testimony is challenged
on appeal, the standard of review is whether the trial court
abused its discretion." Currie v. Commonwealth, 30 Va. App. 58,
64, 515 S.E.2d 335, 338 (1999). "Expert testimony is
appropriate to assist triers of fact in those areas where a
person of normal intelligence and experience cannot make a
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competent decision." Utz v. Commonwealth, 28 Va. App. 411, 423,
505 S.E.2d 380, 386 (1998). "The expert testimony must be
relevant, and the trial judge must determine whether the subject
matter of the testimony is beyond a lay person's common
knowledge and whether it will assist the trier of fact in
understanding the evidence or in determining a fact in issue."
Id.Gibson, a forensic scientist in the field of firearm and
tool mark identification, qualified, without objection, as an
expert in the area of firearms. Gibson testified that the
rifling characteristics on the cartridge casings found in the
street were consistent with and similar to those of a Kahr
pistol. Test results indicated that all of the cartridge
casings collected at the scene were fired from the same weapon.
Based on her experience and knowledge about gun sales in local
gun shops, Gibson knew that few Kahr firearms were sold in the
Richmond area, and so testified. Gibson knew that the data
recorded in the NIBIN system for firearms examined in forensic
laboratories in Virginia, Maryland, and Washington, D.C., showed
that only five of the 1,500 to 2,000 that were examined in the
Richmond laboratory had been Kahr brand firearms. The trial
court allowed Gibson to testify as to "her familiarity in this
area based on the information that she has received as a firearm
expert, and that information includes the NIBIN information."
Gibson's testimony was within her area of expertise, was not
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within the range of the jury's common experience, was relevant,
and assisted the trier of fact in understanding the evidence.
See Velazquez v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213,
218 (2002). The trial court did not abuse its discretion in
admitting this expert testimony.
Cross-Examination Issue
"Limitation of cross-examination is a matter within the
sound discretion of the trial court and is subject to review
only for abuse of discretion." Naulty v. Commonwealth, 2
Va. App. 523, 529, 346 S.E.2d 540, 543 (1986). Once the right
to cross-examine has been fairly and substantially exercised,
the trial court may exercise its discretion to prevent the right
from being abused. Maynard v. Commonwealth, 11 Va. App. 437,
444, 399 S.E.2d 635, 639 (1990) (en banc). "[T]he defendant's
right to cross-examine witnesses does not extend to collateral
and irrelevant matters. A witness cannot be impeached by
evidence of a collateral fact which is not relevant to the
issues of the trial, even though to some extent it has a bearing
on the issues of credibility." Id.At trial, appellant's counsel asked Hicks several questions
about her drug use during the time frame surrounding the crime. 1
1
The following dialogue occurred:
[DEFENSE COUNSEL:] Now, let me ask you
this. Either before that date of July 21 or
this discussion that you indicated that you
had
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or that you heard Mike have, had you used
controlled substances?
[HICKS:] Yes.
[DEFENSE COUNSEL:] And how long had you
used control [sic] substances?
[HICKS:] About two months, two or three
months.
[DEFENSE COUNSEL:] And what were you using?
[HICKS:] Heroin.
[DEFENSE COUNSEL:] And how frequently were
you using?
[COMMONWEALTH'S ATTORNEY]: Judge, objection
at this time. Relevancy. The question may
be posed if she was using heroin at the time
of the offense, but not anything else.
THE COURT: Sustained. You may ask her, her
condition at the time this happened, but the
fact she could have been using substances
three months before or how often she was
using the three months before are simply not
relevant. Let's narrow down the time.
[DEFENSE COUNSEL:] On this date, what were
you using? How frequently?
[HICKS:] Nothing.
[DEFENSE COUNSEL:] Nothing this particular
date. You were an addict the day before but
didn't use –-
[COMMONWEALTH'S ATTORNEY]: Judge, objection
to –-
[HICKS:] I was not an addict.
THE COURT: Sustained.
[DEFENSE COUNSEL:] You were never an
addict?
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[HICKS:] No, I was an addict later on, but
it doesn't happen overnight.
[DEFENSE COUNSEL:] So it didn't happen in
two months, I take it?
[HICKS:] No.
[COMMONWEALTH'S ATTORNEY]: Judge, my
continued objection.
THE COURT: Sustained.
[DEFENSE COUNSEL:] Had you used the day
before?
[COMMONWEALTH'S ATTORNEY]: Objection,
again, to relevance.
THE COURT: Sustained.
[DEFENSE COUNSEL:] Judge, the impact of
drugs over a period of time is certainly
relevant -–
THE COURT: I've sustained the objection.
Let's move on, counsel. She said she was
using nothing that day.
[DEFENSE COUNSEL:] And you continued to use
after that?
[COMMONWEALTH'S ATTORNEY]: Judge –-
THE COURT: Sustained.
[DEFENSE COUNSEL:] You made a statement
subsequent to all of this, correct, to the
police?
[HICKS:] Yes.
[DEFENSE COUNSEL:] Were you using heroin at
that time?
THE COURT: On the date she made the
statement to the police?
[DEFENSE COUNSEL:] That's correct.
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Hicks testified that she had been using heroin for two or three
months at the time of the crime. When appellant's counsel asked
how frequently Hicks was using the heroin, the Commonwealth's
attorney objected on the basis of relevancy, and took the
position that counsel could only ask about Hicks's drug use at
the time of the crime, but not about her frequency of drug use
months before the crime. The court sustained the objection and
ruled that, "You may ask her, her condition at the time this
happened, but the fact she could have been using substances
three months before or how often she was using [the substances]
. . . are simply not relevant. Let's narrow down the time."
THE COURT: All right. On the date you made
the statement to the police, were you using
heroin on that date?
[HICKS:] Probably not.
[DEFENSE COUNSEL:] Probably not?
[HICKS:] I wouldn't imagine I would talk to
the police when I was using heroin.
[DEFENSE COUNSEL:] Why would you imagine
that you wouldn't be using heroin when you
were talking to the police?
[HICKS:] Well, they could lock you up.
[DEFENSE COUNSEL:] I see. And your
recollection of what you're telling these
folks today is based in part on your
discussions that you've described to us with
Ms. Piland?
[HICKS:] What I'm discussing today is what
I heard and what I saw.
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Hicks testified that she had not used heroin on the day of the
crime.
Appellant's counsel was permitted to prove that Hicks had
used heroin for two or three months prior to the shooting and to
cross-examine Hicks about her drug use on the day of the
shooting. We cannot say that the trial court abused its
discretion by limiting the testimony about Hicks's drug use to
the time frame of the day of the crime. Whether Hicks used
drugs months before the crime and how frequently she used drugs
months before the crime are collateral and of little or no
relevance other than to portray her as a drug addict. No
evidence was introduced or proffered that heroin use for two or
three months prior to an event would prevent a person from
perceiving or recalling events. The appellant sought to suggest
by innuendo that the prior drug use rendered Hicks's testimony
unworthy of belief. On the record, the trial court did not
abuse its discretion by limiting the cross-examination of Hicks.
For these reasons, we affirm McCormick's convictions for
malicious wounding and use of a firearm.
Affirmed.
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Benton, J., dissenting.
I would hold that defense counsel was deprived of the
opportunity to fully cross-examine the witness and that the
record did not contain a factual basis to support the firearms
expert's testimony about the popularity and scarcity of the
handgun.
I.
"[A] primary interest secured by [the Sixth Amendment to
the Constitution] is the right of cross-examination." Douglas
v. Alabama, 380 U.S. 415, 418 (1965). "Cross-examination . . .
[is] fundamental to the truth-finding process." Barrett v.
Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194 (1986). In
order to further these interests, "the cross-examiner is . . .
permitted to delve into the witness' story to test the witness'
perceptions and memory, [and] the cross-examiner has
traditionally been allowed to impeach, i.e., discredit the
witness." Davis v. Alaska, 415 U.S. 308, 316 (1974). "Although
a trial [judge] may exercise discretion to see that the right of
cross-examination is not abused, the discretion may be employed
only after the right to cross-examine has been fairly and
substantially exercised." Barrett, 231 Va. at 108, 341 S.E.2d
at 194.
After testifying on direct examination about events that
occurred a year earlier, Stacy Hicks testified on
cross-examination as follows:
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Q Now, let me ask you this. Either before
that date of July 21 or this discussion that
you indicated that you had or that you heard
Mike have [after July 21], had you used
controlled substances?
A Yes.
Q And how long had you used control
substances?
A About two months, two or three months.
Q And what were you using?
A Heroin.
Q And how frequently were you using?
[PROSECUTOR]: Judge, objection at this
time. Relevancy. The question may be posed
if she was using heroin at the time of the
offense, but not anything else.
THE COURT: Sustained. You may ask her, her
condition at the time this happened, but the
fact she could have been using substances
three months before or how often she was
using the three months before are simply not
relevant. Let's narrow down the time.
* * * * * * *
Q Had you used the day before?
[PROSECUTOR]: Objection, again, to
relevance.
THE COURT: Sustained.
[DEFENSE ATTORNEY]: Judge, the impact of
drugs over a period of time is certainly
relevant --
THE COURT: I've sustained the objection.
Let's move on, counsel. She said she was
using nothing that day.
Q And you continued to use after that?
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[PROSECUTOR]: Judge --
THE COURT: Sustained.
I would hold that the trial judge impermissibly narrowed
trial counsel's ability to demonstrate by cross-examination that
the witness' heroin use was substantial. In determining the
extent to credit the witness' ability to remember and perceive
the events to which she testified, the jury was entitled to know
the severity of the witness' heroin addiction. Indeed, the
significance of the witness' heroin addiction was sufficient for
the trial judge to permit the prosecutor to ask the witness the
following question on redirect:
Q . . . [H]ow long have you been clean now?
[DEFENSE ATTORNEY]: Objection to the
relevance of that.
THE COURT: Overruled.
A Almost two months.
What the jury did not learn, however, as contained in the
proffer of the witness' testimony, was that she had used heroin
two to three times a week prior to July 21, 2000; that, although
she denied using heroin on July 21, 2000, she used it every day
after July 21, 2000 for almost a year; that she sometimes used
five bags of heroin each day; and that she also used cocaine and
marijuana. This evidence was relevant because it bore on the
jury's obligation to determine the credibility of the witness.
The jury was entitled to consider this evidence in weighing the
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value of the witness' testimony concerning her purported
recollection and perception of the events.
II.
Hicks, who was with Michael C. McCormick on the night of
July 21, 2000 when he chased a man near the bar, testified that
McCormick had a concealed weapon permit. Although she did not
see McCormick with a weapon that night, she knew he often
carried "a small, black handgun." Another witness, who was a
former police officer and was familiar with McCormick's gun use,
testified that when McCormick first received his gun permit he
owned "a Glock .45 caliber but later possessed a shiny,
chrome-plated "Kahr pistol, either .9 millimeter or .40
caliber."
The record establishes that the police did not recover the
gun that fired the bullet that wounded Sasha Leadbetter. The
evidence proved, however, that the police discovered six
cartridge cases in the area of the shooting and recovered from
the hospital the bullet that wounded Leadbetter.
On direct examination, Wendy Gibson, a firearms expert,
testified that she examined the bullet that wounded Leadbetter
and the six cartridge cases found near the area of the shooting.
She testified as follows concerning the bullet:
It is a caliber .9 millimeter Luger.
It's a jacketed bullet. I was able to
determine that it had been fired from a
firearm that had six lands and grooves
inclined to the right with a polygonal type
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of rifling, which means the rifling in that
firearm has been suaged into the firearm as
opposed to being cut.
Q Now, when you say polygonal, is that a
unique characteristic, by any means?
A It's a type of rifling that manufacturers
choose to use, and there are a few that do
use them.
In addition, Gibson testified that all the cartridges had
been "fired in one firearm." She also testified as follows
concerning her examination of one of those cartridges:
Q And based on those characteristics, what
was your conclusion as to what type of gun
fired that cartridge case?
A In my certificate of analysis, I listed a
Kahr firearm.
* * * * * * *
We have a computer system in our
laboratory called NIBIN. It's similar to
the system used for fingerprinting. And in
our system, we can put an image of a
cartridge case in and we can compare them
through electronic means to other cartridge
cases trying to connect possible cartridge
cases from crime scenes.
In this particular case, here I have an
image of the . . . cartridge case on the
right, and this is from a testfire from a
Kahr K .9 pistol that had been in our
laboratory. This is a known testfire that
we produce at our laboratory. And during my
examination, based on these characteristics
when I conducted this search there were
similar characteristics between the two, the
[cartridge case] and the known Kahr pistol.
This was part of what was able to bring me
to the conclusion that the cartridge cases
may have been fired in a Kahr pistol.
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On cross-examination, however, Gibson testified as follows:
Q That's not the only type of pistol, brand
of pistol, make of pistol that would also
cause this same appearance, correct?
A There's a possibility, yes, that's
correct.
Q In fact, while you picked out the name
Kahr to put into your report, in fact, the
. . . bullet that you found, I believe the
actual language is firearms that produce
class characteristics on the . . . bullet
include but are not limited to pistols with
the brand name Kahr chambered to fire
caliber .9 millimeter Luger cartridges,
correct?
A That is correct.
Q So there are other types of weapons,
brands of weapons that also would give the
very same appearance as this Exhibit 16,
correct?
A There may be. That's true.
Q And you can't exclude that?
A That's correct.
Q Indeed, you did not list that the items
-- let me rephrase that. Can you say with
certainty that the . . . bullet . . . that
was recovered came from the very same weapon
that these cartridge casings were fired
from?
A No, I cannot.
Indeed, the certificate of analysis contained the following
conclusion about the bullet and the cartridges:
Firearms that produce class characteristics
like those present on the . . . cartridge
cases and the . . . bullet include, but are
not limited to, pistols with the brand name
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Kahr chambered to fire caliber 9 mm Luger
cartridges.
Despite the equivocal nature of this report and Gibson's
testimony, the prosecutor sought to establish "how popular [the
Kahr pistol] may be" on redirect examination of Gibson. After
the witness testified that she was "slightly familiar with it,"
the Commonwealth was permitted, over McCormick's objection, to
ascertain the expert's personal view of the scarcity and
popularity of the Kahr pistol.
Q And what is your opinion as to it being a
popular firearm or it being very scarce?
* * * * * * *
A Could you please repeat that.
Q With regards to the Kahr pistol, brand
name Kahr, you have been able to do some
research -- well, in your training and
experience, you've had access to
documentation about brand names of guns,
correct?
A Correct.
Q And you also, in your training and
experiences, you have contact with the
individuals who sell firearms in the area;
is that correct?
A Correct.
Q And so you have knowledge about how
popular the sale of a Kahr pistol is; is
that right?
A Personal knowledge, yes.
Q Okay. And what do you know, in terms of
it being a popular gun, as in is it sold a
lot relative to other brands or not?
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A My personal experience at local gun
stores is that there are few Kahr pistols
sold in this local area. And statistically
from our laboratory, I know that we have
statewide between our four offices, five
Kahr pistols come into our laboratory for
examination.
Expert testimony "cannot be speculative or founded upon
assumptions that have an insufficient factual basis."
Tittsworth v. Robinson, 252 Va. 151, 154, 475 S.E.2d 261, 263
(1996). A review of portions of Gibson's proffered testimony,
which was put in the record in support of the objection,
establishes the lack of basis for her testimony concerning the
popularity or scarcity of the Kahr pistol.
Q . . . . Can you tell the Judge or could
you have told this jury how many Kahr
pistols have been manufactured in the United
States?
A No, sir, I cannot.
* * * * * * *
Q There is no record keeping of movement of
guns from one state to the other, legally
possessed and purchased guns, correct?
A As far as I know, that's correct.
Q You do not know how many Kahr pistols are
in the Commonwealth of Virginia?
A That's correct.
Q And you do not know how many Kahr pistols
might be in the Richmond vicinity?
A That's correct, sir.
Q Not only don't you, you have no idea
whether there's 10,000? You have no idea?
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A That's correct, sir.
Q All you can answer to is the number of
Kahr pistols that have come through either
for evaluation or some form of assessment by
the office at which you work as a forensic
scientist; is that correct?
A Yes, sir. That's correct.
I would hold that Gibson's redirect testimony concerning
her personal knowledge of the popularity or scarcity of the Kahr
pistol was inadmissible. I would also hold that this error was
not harmless. The harm in this evidence comes from the effect
the jury may have given to it in assessing the prosecutor's
other arguments about this evidence -- that the "Kahr .9
millimeter [is] a rare gun"; that "they are so rare that in [the
expert's] experience she knows of 5 out of 2000 that have come
up in Richmond." This evidence was used to provide a necessary
link between McCormick, a gun the prosecutor alleged was rare,
and the bullet removed from Leadbetter.
For these reasons, I would reverse the convictions and
remand for a new trial.
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