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Date: 01-29-2020

Case Style:

Cassandra Marcelle Murray v. Commonwealth of Virginia

Case Number: 1226-18-1

Judge: ROBERT J. HUMPHREYS

Court: COURT OF APPEALS OF VIRGINIA

Plaintiff's Attorney: Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief)

Defendant's Attorney:

Description:


Need help finding a lawyer for representation concerning appealing convictions for possession of a firearm by a convicted violent felon in Virginia?

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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
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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
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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.


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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 (2016) (citing Lawlor v.
Commonwealth, 285 Va. 187, 229 (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 (2017) (quoting Grattan v. Commonwealth,
278 Va. 602, 620 (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 (2008) (alterations in original) (quoting Koon v. United States, 518 U.S. 81, 100
(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 (2018).
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In contrast to lay opinion testimony, “[e]xpert testimony is appropriate to assist triers of
fact in those areas where a person of normal intelligence and experience cannot make a
competent decision.” Utz v. Commonwealth, 28 Va. App. 411, 423 (1998) (quoting Swiney v.
Overby, 237 Va. 231, 233 (1989)). Before allowing expert testimony, the circuit court must
determine whether the expert testimony is relevant, “whether the subject matter of the testimony
is beyond a lay person’s common knowledge,” and whether the testimony would be helpful to
the fact-finder. Id.
In this case, Detective Snelgrow was not required to be qualified as an expert in order to
testify about the nature of the weapon he discovered because his opinion was a valid lay opinion
under Rule 2:701. By testifying that the weapon was “designed to propel a missile by an action
of explosion by any combustible,” Detective Snelgrow was merely testifying that in his
experienced opinion, the item he found was a firearm. See Jordan v. Commonwealth, 286 Va.
153, 157 (2013) (defining a “firearm” for purposes of Code § 18.2-308.2 as “any instrument
designed, made, and intended to fire or expel a projectile by means of an explosion” (quoting
Armstrong v. Commonwealth, 263 Va. 573, 583 (2002))). Given a general constitutional right to
keep and bear them, firearms are generally not so exotic that it requires extensive or specialized
expertise for a great many lay persons with familiarity with them to correctly identify a firearm
as such. Because Detective Snelgrow’s opinion was reasonably based upon his training,
personal experience, and observations, the circuit court did not err in admitting his testimony as a
lay opinion pursuant to Rule 2:701.
C. Questioning Detective Snelgrow
Murray argues that she should have been allowed to question Detective Snelgrow about
(1) the design of the magazine and its relation to the gun; and (2) whether any investigation
regarding the gun owner was conducted, and the results of such an investigation.
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Even assuming these points were properly preserved for appeal, this Court cannot reach
the merits of this assignment of error because Murray failed to proffer the testimony she sought
to elicit from Detective Snelgrow. “Error may not be predicated upon admission or exclusion of
evidence, unless . . . the substance of the evidence was made known to the court by proffer.”
Va. R. Evid. 2:103; see also Massey v. Commonwealth, 67 Va. App. 108, 132 (2016) (alteration
in original) (“The failure to proffer the expected testimony is fatal to [the] claim on appeal.”
(quoting Molina v. Commonwealth, 47 Va. App. 338, 367-68 (2006))). A proper proffer must
allow this Court to determine (1) the admissibility of the excluded testimony and (2) whether the
exclusion of the evidence was prejudicial to the proffering party. See Massey, 67 Va. App. at
132.
In this case, Murray failed to proffer the answers to both questions about which she now
complains. Without the expected testimony from Detective Snelgrow, this Court cannot
determine whether the circuit court erred by finding the testimony irrelevant. For these reasons,
the assignment of error is not subject to appellate review.
D. Admission of the Remainder of Murray’s Statement
Murray argues both that she should have been allowed to play the video of her interview
with Detective Carpenter and that she should have been allowed to question Detective Carpenter
about her full statement. However, Murray did not proffer the video she sought to introduce.
Thus, this Court likewise cannot reach the merits of that argument. See Va. R. Evid. 2:103.
Further, the Commonwealth argues that the assignment of error is procedurally defaulted in its
entirety by lack of specificity in the objections made in the court below. Rule 5A:18 of the Rules
of the Supreme Court of Virginia provides that the circuit court’s judgment cannot be reversed
“unless an objection was stated with reasonable certainty at the time of the ruling.” (Emphasis
added). On appeal, Murray argues that the remainder of her statement should have been
- 8 -
admitted under Rule 2:106(a) of the Virginia Rules of Evidence. However, at trial, Murray’s
only stated basis for admitting her statements was simply that “the jury deserves to hear all [of]
these things.” Assuming, without deciding, that this rather nebulous statement was sufficient to
preserve an issue regarding the rule of completeness for appeal, her argument nevertheless fails.
Murray’s proffer of the remainder of her statement was inadequate to determine whether
the doctrine of completeness, memorialized as Rule 2:106(a) of the Virginia Rules of Evidence,
applies. That evidentiary rule provides that when a portion of a “writing or recorded statement”
is introduced by one party, upon motion of the other party, “any other part of the writing or
recorded statement which ought in fairness to be considered” may be admitted, “unless such
additional portions are inadmissible under the Rules of Evidence.” Va. R. Evid. 2:106(a)
(emphasis added). (“[The] general rule [of completeness] does not, however, deal with cases in
which part of the statement contains irrelevant and immaterial evidence, which is not
admissible.” Pierce v. Commonwealth, 2 Va. App. 383, 389 (1986).)
Here, Murray’s only proffer as to the remainder of her statement to Detective Carpenter
was that Murray “explained to the officer [that] she didn’t do it on purpose. She found the gun in
her car, followed up on where the gun came from, and was trying to get rid of it as soon as
possible.” To be adequate, a proffer must allow this Court to determine the “admissibility of the
proposed testimony.” Massey, 67 Va. App. at 132 (quoting Molina, 47 Va. App. at 368).
Defense counsel’s proffer was exceedingly vague, such that this Court cannot determine whether
the testimony sought to be elicited was relevant testimony. If by “trying to get rid of” the gun,
the testimony sought to be elicited was that Murray was returning the gun to its original owner,
the testimony would be an irrelevant explanation of her motive for illegally exercising dominion
and control over the firearm. Alternatively, if she meant that she was taking some other action
unrelated to transporting or otherwise controlling the firearm once she discovered it, then the
- 9 -
testimony may or may not have been relevant and neither the circuit court nor we have any way
of knowing. Thus, we cannot determine whether the testimony was admissible as relevant or
whether Rule 2:106(a) applies.
E. Sufficiency of the Evidence
In reviewing the sufficiency of the evidence, “we review the evidence in the light most
favorable to the prevailing party, including any inferences the factfinder may reasonably have
drawn from the facts proved.” Smith v. Commonwealth, 282 Va. 449, 453 (2011). The circuit
court’s judgment will not be reversed unless it is “plainly wrong or without evidence to support
it.” Code § 8.01-680; see also Bolden v. Commonwealth, 275 Va. 144, 148 (2008).
Murray was convicted under Code § 18.2-308.2, which states in relevant part, “It shall be
unlawful for (i) any person who has been convicted of a felony . . . to knowingly and
intentionally possess or transport any firearm . . . .” Murray argues that the evidence was
insufficient to show that she possessed the firearm knowingly and intentionally, as required by
statute.
This argument is without merit. The firearm was found in a backpack in the vehicle she
was driving, without any passengers. Murray fled from the scene, evidencing consciousness of
her guilt. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“Headlong flight—wherever it
occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it
is certainly suggestive of such.”). As she fled the vehicle, Murray also dropped a magazine
loaded with ammunition compatible with the firearm found in the vehicle she was driving.
Detective Carpenter testified that Murray told him she knew the firearm was in the vehicle. By
Murray’s own testimony, she was intentionally transporting the firearm back to its owner.
Therefore, there is ample evidence in the record of knowing and intentional possession.

Outcome: Because we find no error in the evidentiary rulings made by the circuit court and because the evidence was sufficient as a matter of law, the judgment of the circuit court is affirmed.

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