Murray v. Commonwealth

• Decision Date: 14 January 2020
• Docket Number: Record No. 1226-18-1
• Citation: 837 S.E.2d 85,71 Va.App. 449
• Parties: Cassandra Marcelle MURRAY v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

71 Va.App. 449

837 S.E.2d 85

Cassandra Marcelle MURRAY

v.COMMONWEALTH of Virginia

Record No. 1226-18-1

Court of Appeals of Virginia, Norfolk.

JANUARY 14, 2020

Miranda R. Mayhill, Assistant Public Defender, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General(Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Huff and AtLee

OPINION BY JUDGE ROBERT J. HUMPHREYS

On February 5, 2018, a grand jury for the Circuit Court of the City of Hampton("circuit court") indicted appellantCassandra Marcelle Murray("Murray") for possession of a firearm by a convicted violent felon, in violation of Code§ 18.2-308.2.Murray pleaded not guilty.After a jury trial on May 29, 2018, Murray was found guilty and sentenced to five years’ incarceration.

On appeal, Murray assigns the following four errors:

I.The trial court erred by allowing [Detective] Snelgrow to testify to impermissible opinion testimony without first declaring him an expert.

II.The trial court erred by refusing to allow Appellant to question [Detective] Snelgrow about relevant evidence.

III.The trial court erred by refusing to allow Appellant to admit the remainder of her statement to police.

IV.The trial court erred by denying Appellant’s Motion to Strike and finding that the evidence was sufficient to find her guilty because the evidence did not establish that Appellant ever possessed the firearm knowingly and intentionally.

I.BACKGROUND

On November 9, 2017, Detective Michael Snelgrow("Detective Snelgrow") of the Hampton Police Department was working overtime on patrol while in uniform when a vehicle with different colored taillights passed him.It was later determined that Murray was driving this vehicle.Detective Snelgrow "went to turn around on the vehicle," but the vehicle quickly sped off.Detective Snelgrow continued to follow the vehicle and observed it fail to stop at multiple stop signs.As the vehicle approached a third stop sign, its lights went off and it failed to stop at that stop sign, as well.Detective Snelgrow activated his emergency lights, and the vehicle pulled over.After the vehicle stopped, Murray left the vehicle, dropping a cell phone and a magazine containing .45 caliber cartridges.Murray then fled from the scene on foot.Detective Snelgrow searched the vehicle and found a black bookbag containing a .45 caliber firearm underneath the front passenger seat.There was no one else in the vehicle.Murray was apprehended while hiding behind a home a short time later.

At trial on May 29, 2018, Detective Snelgrow testified that he had training and experience in the carrying, use, and identification of firearms, including during his youth when he went hunting with his father.Detective Snelgrow identified the firearm that he discovered the day of the incident, and the weapon was admitted into evidence.On direct examination, the Commonwealth asked Detective Snelgrow whether the gun was "designed to propel a missile by an action of explosion by any combustible material."Defense counsel objected, stating that Detective Snelgrow had to be properly qualified as an expert before forming an opinion on the matter.The circuit court did not immediately rule on the objection.The Commonwealth then asked Detective Snelgrow, "As a member of the Hampton Police Department, have you had training and education in the use and identification of firearms?"Detective Snelgrow responded,

Yes, we do.I went through the police academy in 1996 where I was trained and qualified on the firearm I was issued, and since that time I’ve been through—the firearm I carry now is the third firearm I was issued since I’ve been with the Hampton Police Division. I go through yearly training with the police department, do qualifications, and also do firearms shooting on my own, outside the division.

Detective Snelgrow then testified that the gun he found was "designed to propel a missile by an action of explosion by any combustible."Defense counsel requested a ruling on his prior objection that Detective Snelgrow had not been qualified as an expert.The circuit court asked the Commonwealth whether the Commonwealth was offering Detective Snelgrow as an expert.The Commonwealth responded that it was not required to offer Detective Snelgrow as an expert because based on his answer explaining his training and experience, he"should have known a gun since he looked at that gun."Defense counsel responded that because the Commonwealth was asking for Detective Snelgrow’s opinion, he had to be qualified as an expert before he could answer the question.The circuit court overruled defense counsel’s objection.

On cross-examination, Detective Snelgrow testified that the gun was a .45 caliber weapon and the magazine held .45 caliber ammunition.Defense counsel then asked whether Detective Snelgrow could testify to "anything else about the design of the gun or the actual model."The Commonwealth objected based on relevance.Defense counsel responded that the clip could have been from a different gun and that counsel was trying to ascertain how common a gun it was.The circuit court sustained the Commonwealth’s objection.

Next, Detective Steve Carpenter("Detective Carpenter"), with the Hampton Police Department, testified that he spoke with Murray on the night of the incident after she was transported to Investigations.Detective Carpenter testified that Murray indicated she knew there was a gun in the black backpack.On cross-examination, defense counsel asked Detective Carpenter what else Murray told him about the gun.The Commonwealth objected on hearsay grounds.Originally, the circuit court overruled the objection.However, after additional argument, the circuit court changed its ruling, stating that Murray’s statements did not fall under an exception to the general rule prohibiting hearsay.The circuit court clarified that defense counsel could not ask Detective Carpenter about Murray’s statements during his interrogation of her.The Commonwealth also objected, based on hearsay, to having the video of the interview with Detective Carpenter played.The circuit court ruled that defense counsel could not play the video during the Commonwealth’s case-in-chief.After the Commonwealth rested, defense counsel moved to strike the evidence as insufficient.The circuit court denied the motion.

Thereafter, Murray testified in her own defense.She stated that she gave two friends a ride to Newport News using her girlfriend’s car.Murray testified that after dropping the friends off, she was driving home when she found a bag containing a gun on the floor of the passenger side.Once she found the gun, Murray alleged that she called her friend and told him that he left the bag in the vehicle.She testified that she told him about the gun and offered to turn the vehicle around in order to return it, but the friend told Murray to drop the gun at a mutual friend’s house "because we’d rather be safe than sorry," since the mutual friend’s house was closer.Murray testified that she was going to return the gun because she knew that she was not supposed to be around guns.Murray also testified that she ran from the officer after being pulled over because she was scared.On cross-examination, Murray admitted that she could have pulled the vehicle over and told the owner to come retrieve the gun.She also admitted to intentionally continuing to drive the vehicle with the gun in the bag in order to take it to the rightful owner.After the defense rested, defense counsel renewed his motion to strike.The circuit court denied the motion.The jury found Murray guilty of unlawful possession of a firearm by a convicted felon.This appeal follows.

II.ANALYSIS

A.Standard of Review

"This Court reviews a [circuit] court’s ruling admitting or excluding evidence for abuse of discretion."Payne v. Commonwealth, 292 Va. 855, 866, 794 S.E.2d 577(2016)(citingLawlor v. Commonwealth, 285 Va. 187, 229, 738 S.E.2d 847(2013) ).This Court does not substitute its judgment for that of the circuit court, but "consider[s] only whether the record fairly supports the [circuit] court’s action."Carter v. Commonwealth, 293 Va. 537, 543, 800 S.E.2d 498(2017)(quotingGrattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634(2009) )."However, ‘[a circuit] court by definition abuses its discretion when it makes an error of law .... The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ "Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415(2008)(alterations in original)(quotingKoon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2048, 135 L.Ed.2d 392(1996) ).

B.Opinion Testimony of Detective Snelgrow

Murray first argues that since Detective Snelgrow was never qualified as an expert witness, his opinion about the design and operability of the firearm was inadmissible under the Virginia Rules of Evidence.We disagree.Rule 2:701 of the Virginia Rules of Evidence states,

Opinion testimony by a lay witness is admissible if it is reasonably based upon the personal experience or observations of the witness and will aid the trier of fact in understanding the witness’ perceptions.Lay opinion may relate to any matter , such as—but not limited to—sanity, capacity, physical condition or disability, speed of a vehicle, the value of property, identity, causation, time, the meaning of words, similarity of objects, handwriting, visibility or the general physical situation at a particular location.However, lay witness testimony that amounts only to an opinion of law is inadmissible.

(Emphasis added).Our Supreme Court has clarified that Rule 2:701 does not allow lay opinion testimony that is "not based on the perception of the witness or on the witness’s personal knowledge."Martin v. Lahti, 295 Va. 77, 85, 809 S.E.2d 644(2018).

In contrast to lay opinion testimony, "[e]xpert testimony is appropriate to...