Michael Ellery Tory, s/k/a, etc v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
MICHAEL ELLERY TORY, S/K/A
MICHAEL ELLERY TORY, SR.
MEMORANDUM OPINION * BY
v. Record No. 0756-02-1 JUDGE ROSEMARIE ANNUNZIATA
MARCH 11, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Andrew G. Wiggin for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Michael Ellery Tory, Sr., appellant, was tried and
convicted in a bench trial, for murder, carjacking, attempted
abduction, and two counts of use of a firearm in the commission
of a felony. He was sentenced on April 26, 1999 to serve life
plus 28 years in prison. 1
Tory appeals his convictions, contending the trial court
abused its discretion in admitting rebuttal testimony. We find
no error and affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Tory's original appeal was dismissed due to counsel's
failure to perfect in a timely manner. The present appeal is a
delayed proceeding granted to him as a remedy in a habeas corpus
proceeding.
Facts
On appeal, we view the evidence in the light most favorable
to the Commonwealth, the party prevailing below, together with
all reasonable inferences fairly deducible therefrom. Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence establishes that Michael Tory and his
wife, Carla, were estranged and had been separated for
approximately one year at the time of the offenses at issue.
The victim, William Burtt, was an off-duty Norfolk police
officer who had befriended Carla in the course of making regular
stops at the 7-Eleven store in Norfolk where Carla worked.
On the day Burtt was shot, Carla had to appear in court in
a civil proceeding involving certain credit card charges. Burtt
offered to drive her to court. Tory knew Carla was coming to
court that day because they had arranged a meeting that would
allow Tory to refinance the parties' marital home where Tory
resided. When Carla and Burtt met Tory at the courthouse, Carla
introduced Burtt to Tory as her friend. Carla denied Tory's
suggestion that Burtt was the person with whom she had been
staying.
After Carla's court appearance, she and Burtt proceeded to
the magistrate's office to swear out a warrant against Tory.
Burtt had urged Carla to obtain the warrant against Tory because
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Tory had made an earlier threat against her. 2 Tory followed
them to the magistrate's office in order to swear out a
cross-warrant against Carla. The magistrate issued emergency
protective orders against both Tory and Carla.
Burtt remained in the car while Carla entered the mortgage
company office where Tory subsequently met her. Tory demanded
to know where she was living and with whom. Tory continued to
press the issue and told Carla he knew she was staying with
Burtt. After Carla signed the papers needed to permit Tory to
refinance the marital home, Tory followed her to Burtt's van and
tried to keep her from entering it by positioning himself
between her and the door. She eventually entered the van and
Tory ordered her to get out and to come with him. When Burtt
told Carla she did not have to get out of the van, Tory
responded, "You're fucking my wife, and I'm supposed to listen
to you?" Tory then pulled a handgun from the back of his pants
and, standing inside the open passenger door, ordered Burtt to
"get [his] ass in the van." Tory ordered Burtt to drive and
directed Carla to get in the back seat of the van.
As Carla turned to get into the back seat, Burtt jumped
from the van and ran between two cars, where he squatted and
hid. Tory began shooting across the interior of the van and in
2
Several days before the shooting, Tory had threatened to
kill Carla.
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the direction of Burtt's flight path. Tory walked to the front
of the van, fired again, and then returned to the passenger side
of the van, where he told Carla to "get the hell out," and shot
through the window. Carla jumped from the van and saw Burtt
lying on the ground.
Upon arrival at the scene, Officer Edwin Bidot saw Burtt
lying on the ground, a 9mm gun beside him. Forensic evidence
established that shell casings recovered from the scene were
from a .380 caliber pistol. The .380 caliber pistol was never
found. The evidence failed to show that Burtt possessed a gun
other than his service revolver, a 9mm pistol, which was fully
loaded when police recovered it. Burtt's service revolver,
furthermore, had neither residue on it nor an odor indicative of
recent firing. 3
Two witnesses who observed the shooting from the mortgage
company's conference room window testified at trial. Patricia
Hay heard a "pop" and saw a gun in Tory's hand. She also saw
him raise his hands and demonstrated for the trial court the
movement Tory made. As she watched, she saw Burtt flee and seek
cover between parked cars. As Burtt slowly emerged from his
hiding place, she saw him get hit in the head by a bullet and
fall to the ground. She never saw Burtt's hands and never saw
him with a gun. She testified Tory fired seven shots in total.
3
Gunshot residue tests on the gun were negative.
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Maureen Morris observed the shooting from the same office
window. She testified that she saw Burtt run from the van to a
point between two parked cars and crouch down. She saw Burtt
gradually rise from his position and fall to the ground just as
his head cleared the shelter provided by one of the cars.
Morris and Hays ran from the office towards Burtt. The gun
Morris saw on the ground near Burtt's body proved to be Burtt's
service revolver.
Tory presented evidence of self-defense at trial and
contended that he retrieved the gun he used in the shooting from
Burtt's vehicle. In the Commonwealth's cross-examination, Tory
was asked without objection whether he had ever owned a gun. He
said he had not. Asked if he knew how to use one, Tory said he
had used an M-16 in the military, but never a handgun. He
admitted having a friend named Juan Ware, but denied ever
showing him a handgun in a briefcase. On cross-examination by
the defendant, Carla Tory stated that she had never known Tory
to have a gun during their marriage.
In rebuttal, the Commonwealth called Juan Ware, who
testified he had known Tory for ten to twelve years. Over
Tory's objection, the prosecutor asked Ware if had ever seen
Tory with a handgun in his possession. Ware responded
affirmatively that, five or six years before trial, he saw a
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handgun in Tory's home in an open briefcase on a table where
Tory was preparing his tax returns.
Analysis
The trial court's decision to admit evidence will not be
reversed on appeal unless a clear abuse of discretion, resulting
in prejudice to the defendant is established. Cheng v.
Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 606 (1990). Tory
contends the trial court abused its discretion in admitting
Ware's rebuttal evidence on the ground that Ware testified to a
collateral fact, citing in support Bunting v. Commonwealth, 208
Va. 309, 157 S.E.2d 204 (1967), and Calhoun v. Commonwealth, 35
Va. App. 506, 546 S.E.2d 239 (2001). We disagree.
"The test for whether a matter is material or collateral,
in the context of impeaching a witness, is whether or not the
cross-examining party would be entitled to prove it in support
of his case." Seilheimer v. Melville, 224 Va. 323, 327, 295
S.E.2d 896, 898 (1982) (citing Allen v. Commonwealth, 122 Va.
834, 842, 94 S.E 783, 786 (1913)).
A fact is wholly collateral to the main
issue if the fact cannot be used in evidence
for any purpose other than for
contradiction. Evidence of collateral
facts, from which no fair inference can be
drawn tending to throw light upon the
particular fact under investigation, is
properly excluded for the reason that such
evidence tends to draw the minds of the jury
away from the point in issue, to excite
prejudice and mislead them. Conversely, if
the evidence tends, even slightly, to throw
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light upon the main fact in issue, it is not
collateral but probative. Every fact,
however remote or insignificant, that tends
to establish the probability or
improbability of a fact in issue, is
admissible. . . . [T]he "collateral facts"
rule is purely a question of relevancy.
Seilheimer, 224 Va. at 327, 295 S.E.2d at 898 (citing C. Friend,
The Law of Evidence in Virginia, § 137 (1997) (internal
quotations and citations omitted)).
In the case at bar, Tory's past possession of a handgun
tended to prove his familiarity with such weapons and ability to
shoot a handgun. His past possession of a handgun further
tended to corroborate Carla's testimony that Tory brought a
weapon with him to the scene of the shooting. It further tended
to disprove Tory's testimony that he did not have a weapon on
his person as he approached the van and that he reached into the
van and took Burtt's gun in self-defense. Thus, Ware's
testimony regarding Tory's past possession of a handgun is
relevant to the issue of whether he shot Burtt in self-defense
with Burtt's own gun as he claimed, or whether he came to the
meeting with his wife with a gun in his possession.
In addition, Tory first introduced evidence that he did not
have a gun, when his counsel asked Carla Tory on
cross-examination whether she had ever known him to have a gun
during their marriage. Carla responded, "I never seen him with
one." Tory later testified that he had never owned a gun.
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Thus, rebuttal testimony by Ware, on the same point first
introduced by Tory through his cross-examination of Carla and
later addressed in his own testimony, was relevant and properly
admitted.
Finally, any error in admitting the rebuttal testimony was
invited and harmless. Tory denied that he ever owned a handgun
in response to the Commonwealth's Attorney's cross-examination.
The question and answer were admitted without objection. Tory
cannot introduce evidence he considers relevant and then claim
the Commonwealth's contradictory evidence on the same point is
improperly admitted. See Luck v. Commonwealth, 30 Va. App. 36,
46, 515 S.E.2d 325, 329 (1999) (holding that a criminal defendant
may not "approbate and reprobate –- . . . invite error . . . and
then to take advantage of the situation created by his own wrong"
(internal quotation omitted)). 4
Moreover, even assuming arguendo the trial court erred in
admitting the rebuttal evidence, such error was harmless. When
"other evidence of guilt is 'so overwhelming and the error so
insignificant by comparison that the error could not have
4
Tory further argues Ware's testimony was inadmissible
because it did not rebut his statement. Specifically, Tory
argues the testimony that Tory had a gun in his briefcase does
not tend to establish he ever owned a gun, the fact that he
testified to on direct. Tory failed to raise this argument
before the trial court, and it cannot be raised for the first
time on appeal. Therefore, we decline to address it. See Rule
5A:18; see also Irving v. Commonwealth, 15 Va. App. 178, 179,
422 S.E.2d 471, 472 (1992) (en banc).
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affected the verdict,'" that error is harmless, and we will not
reverse the conviction. Ferguson v. Commonwealth, 16 Va. App.
9, 12, 427 S.E.2d 424, 444 (1993) (quoting Hooker v.
Commonwealth, 14 Va. App. 454, 457 n.2, 418 S.E.2d 343, 345 n.2
(1992)). "An error is harmless only when it plainly appears
from the record and the evidence that the error has not affected
the verdict." Hooker, 14 Va. App. at 457, 418 S.E.2d at 345.
"Whether an error does not affect the verdict must be determined
without usurping the . . . fact-finding function." Id.(internal quotations omitted).
In the case at bar, we find the evidence against Tory so
overwhelming that any error by the trial court in admitting
Ware's testimony was "insignificant by comparison" and was
harmless. Carla Tory testified that she, Tory and Burtt had a
verbal altercation prior to the shooting and that Tory was angry
with Burtt because he believed Burtt was intimately involved
with Carla. She further testified that she observed Tory pull a
gun from his person and begin firing into the van. Her
testimony was corroborated by two eyewitnesses, whom the trial
court deemed "very credible." Patricia Hay and Maureen Morris
observed Burtt get shot in the head as he rose from a crouching
position. Hay saw Tory holding a gun. She did not see Burtt
approach the van holding a gun, as Tory claimed, and the trial
court stated it did "not believe [Tory]'s testimony in this
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regard." Hay also testified that she did not see Tory lean into
the van for a gun, and the trial court found Tory's explanation
for his possession of the gun "highly improbable," stating it
was "totally illogical to believe that an experienced . . .
police officer like Mr. Burtt would have a [gun] apparently
sliding around among some papers on the floor of his van."
Finally, the physical evidence established that Burtt's service
revolver had not been fired, as all the shells recovered were
.380 caliber rather than 9mm. From this evidence, it is plain
that any error in admitting Ware's testimony did not affect the
verdict and, therefore, was harmless. See id. at 457, 418
S.E.2d at 345.
Accordingly, we find no error in the trial court's decision
and affirm.
Affirmed.
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