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Felix v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Mar 28, 1995
Record No. 1792-93-1 (Va. Ct. App. Mar. 28, 1995)

Opinion

Record No. 1792-93-1

Decided: March 28, 1995

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, John K. Moore, Judge

Gerald T. Zerkin (Theresa B. Berry; Samford Berry, on brief), for appellant.

G. Russell Stone, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: Judges Baker, Benton and Senior Judge Hodges


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Daniel E. Felix was indicted and convicted of breaking and entering in violation of Code Sec. 18.2-90 and malicious wounding in violation of Code Sec. 18.2-51. On this appeal, he contends that the trial judge erred in sustaining the prosecutor's objections to evidence Felix sought to prove in his insanity defense. Because the record fails to contain a proffer of the evidence, we find no error.

I.

The Commonwealth's evidence proved that Felix and James A. Taylor knew each other for four or five years. Their relationship initially was friendly, but it badly deteriorated. Because of their disagreements Felix and Taylor had to go to court on occasions to resolve various disputes. One month prior to the incidents that led to the indictments, Taylor was convicted of threatening bodily harm against Felix, and Taylor was placed under constraints of a peace bond. On July 23, 1992, Felix and Taylor's parents were in court to resolve a disagreement between Felix and Taylor's parents. Following the court appearance, Felix broke a neighbor's windows and later went to Taylor's residence. At Taylor's residence, Felix broke into the residence and stabbed Taylor.

II.

To address Felix's contention that the trial judge erred in limiting his proof, we review several sequences of testimony. During the direct examination of the neighbor whose windows Felix broke, the prosecutor asked whether the neighbor had trouble with Felix prior to July 23. Felix's counsel objected on the ground that such evidence was "a little removed in time and place from July 23rd." On cross-examination of that witness's husband, however, Felix's counsel asked about "unpleasantnesses" between him and Felix that occurred during the three or four years they had known each other. The trial judge sustained the Commonwealth's objection and stated:

[W]e're not going back and try every [prior] incident . . . between the parties. Unless there's some other purpose in it, I'll have to sustain the objection.

No other purpose was proffered.

Later, during Felix's direct testimony in his own defense, Felix's counsel asked Felix whether Taylor had threatened him. Without any intervention by the trial judge or the prosecutor, Felix's counsel directed Felix to confine his remarks to "threats . . . near in time to" July 23, 1992. When Felix responded by stating that he would "give . . . a little bit of the story," the prosecutor objected and stated that her witnesses were not permitted to give a similar history. In response to the trial judge's observation that Felix "ought to be able to get into [threats that occurred proximate to July 23]. . . . Some of that," Felix's lawyer responded as follows:

Yes, sir. I would hope . . . that we would confine this to time and place close to July 23rd. It's my intent, your Honor.

Felix contends that the trial judge erred in not allowing him to prove events that occurred prior to July 23. Citing Farris v. Commonwealth, 209 Va. 305, 163 S.E.2d 575 (1968), and Taylor v. Commonwealth, 208 Va. 316, 157 S.E.2d 125 (1967), Felix argues that an accused who pleads not guilty by reason of insanity is entitled to present evidence of other acts committed by him that have a tendency to show his mental condition at the time of the offense.

Although the legal principle is a sound one, the record in this case does not establish that the evidence, if any, that was excluded bore on any relevant issue. Even if we were to conclude that Felix's lawyer did not acquiesce in the rulings, see Kelly v. Commonwealth, 8 Va. App. 359, 367, 382 S.E.2d 270, 274 (1989) (issue conceded at trial may not be raised on appeal), "[w]hen cross-examination is limited by the court and the accused challenges the . . . ruling on appeal, [the accused] must make a proper proffer of the excluded testimony." Stewart v. Commonwealth, 10 Va. App. 563, 568, 394 S.E.2d 509, 512 (1990). No proffer was made on the record of the additional evidence that might have been proved.

III.

Dr. William Lee, a psychiatrist employed by Central State Hospital, testified as a rebuttal witness that he had examined Felix and believed that Felix was sane at the time he committed the offenses. On cross-examination, after Felix's counsel established that the hospital had 120 to 130 beds for patients, the following occurred:

[DEFENSE COUNSEL]: How many of these beds, these 120 to 130 beds, are filled at this time?

[PROSECUTOR]: Your Honor, I've been waiting to see where this is going. I'm objecting at this point because I do not see the relevance of this.

[JUDGE]: It's irrelevant.

[DEFENSE COUNSEL]: Your Honor, I'm seeking to find out if this witness has a vested interest in the outcome of this case. If he's biased. I would ask the court to allow me to go just one more step.

[JUDGE]: Sustain the objection.

[DEFENSE COUNSEL]: Now sir, how many accuseds have you examined for insanity in the last twelve months?

Absent a proffer on the record, the trial judge was left to speculate concerning the import of the seemly irrelevant matter. We have no basis upon which to conclude that the trial judge erred. See McGann v. Commonwealth, 15 Va. App. 448, 451, 424 S.E.2d 706, 708-09 (1992).

For these reasons, we conclude that the record does not establish that the trial judge erred. Therefore, we affirm the convictions.

Affirmed.


Summaries of

Felix v. Commonwealth

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Mar 28, 1995
Record No. 1792-93-1 (Va. Ct. App. Mar. 28, 1995)
Case details for

Felix v. Commonwealth

Case Details

Full title:DANIEL E. FELIX, S/K/A DANIEL ERROL FELIX v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Argued at Norfolk, Virginia

Date published: Mar 28, 1995

Citations

Record No. 1792-93-1 (Va. Ct. App. Mar. 28, 1995)