                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia

CECIL ADRIAN ALLISON

v.       Record No. 0792-94-4           MEMORANDUM OPINION * BY
                                     JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA                   OCTOBER 17, 1995

             FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                      Thomas D. Horne, Judge

           Alexander N. Levay, Public Defender (Lorie E.
           O'Donnell, Assistant Public Defender; Office
           of the Public Defender, on briefs), for
           appellant.
           Steven A. Witmer, Assistant Attorney General
           (James S. Gilmore, III, Attorney General;
           Robert B. Condon, Assistant Attorney General,
           on brief), for appellee.


     Cecil Adrian Allison (appellant) was convicted in a jury

trial of first-degree murder, use of a firearm in the commission

of a felony, malicious wounding, possession of a firearm by a

convicted felon, and possession of a sawed-off shotgun.    On

appeal, he argues that the trial court erred in:   (1) denying his

motion to sever the possession of a firearm by a convicted felon

charge from the other charges; (2) denying his motion to set

aside the verdict when the jury considered evidence aliunde; and

(3) prohibiting his psychological expert from testifying about

appellant's statements during the clinical interview.     We reverse

and remand because the trial court erred in denying appellant's

motion to sever.   We affirm on the expert testimony issue.     We do
     *
      Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
not address the jury issue because it is not likely to arise on

retrial, and thus, our remand renders it moot.
                             BACKGROUND

     Appellant and his wife, Juanita Allison (decedent),

separated in the spring of 1992.       On June 4, 1992, decedent

attended a party at the home of David Pollen (Pollen).      At 10:30

p.m., decedent and other guests left the party and went to

Magpie's, a restaurant in Middleburg.      Pollen stayed home and

went to bed.    Shortly after going to bed, Pollen awoke to find

appellant inside his residence.    Appellant struck Pollen on the

head, rendering him temporarily unconscious.      When Pollen

regained consciousness, appellant was dragging him by his feet

across the floor.   Pollen struggled free and ran outside.

Appellant chased him and shot at him with a sawed-off shotgun.
Appellant then went to Magpie's, where he shot his wife once in

the back of the head using a .22 caliber rifle with a telescopic

sight.   At trial, the jury found appellant guilty on all counts

and sentenced him to life plus fourteen years in the state

penitentiary.
                           MOTION TO SEVER

     Appellant argues that the trial court erred in denying his

motion to sever the charge of possession of a firearm by a

convicted felon from the remaining charges.

     Rule 3A:10(b) provides as follows:
               The court may direct that an accused be
          tried at one time for all offenses then
          pending against him, if justice does not



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           require separate trials and (i) the offenses
           meet the requirements of Rule 3A:6(b) or (ii)
           the accused and the Commonwealth's attorney
           consent thereto.


"Justice often requires separate trials where highly prejudicial

evidence of one of the crimes is not admissible in the trial of

the other."    Long v. Commonwealth, 20 Va. App. 223, 226, 456

S.E.2d 138, 139 (1995).   "Generally, evidence of other offenses

is inadmissible if it is offered merely to show that an accused

was likely to commit the crime for which he is being tried."
Cheng v. Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599, 603

(1990).   The exceptions to the general rule allow evidence of

other offenses where the evidence "tends to prove any relevant

element of the offense charged . . . [or] where the motive,

intent or knowledge of the accused is involved."    Id. at 34, 393

S.E.2d at 603 (quoting Kirkpatrick v. Commonwealth, 211 Va. 269,

272, 176 S.E.2d 802, 805 (1970)).

     In Long, the defendant was charged with possession of

heroin, possession of a firearm while in the possession of

heroin, and possession of a firearm after having been convicted

of a felony.   20 Va. App. at 225, 456 S.E.2d at 138-39.   The

trial court denied Long's motion to sever the possession of a

firearm after having been convicted of a felony charge.    This

Court reversed the trial court:
               When the jury hears that a defendant has
          been convicted of a felony, a fact not
          probative of an element of the offense being
          tried, the evidence has a tendency to
          prejudice the defendant in the minds of the
          jurors. The admission of the felony


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             conviction is suggestive of the defendant's
             criminal propensity and tends to adversely
             affect his presumption of innocence.


Id. at 227, 456 S.E.2d at 139.

        This Court's recent decision in Long controls this case.

The trial court erred when it denied appellant's motion to sever

the possession of a firearm by a convicted felon charge.

Appellant's prior felony was an element of the firearm possession

charge but not an element of the murder charge.    The prior felony

was not relevant to the murder charge and the fact that appellant

was a felon only served to prejudice the jury.    As in Long,
despite an abundance of evidence to support the conviction, the

error cannot be deemed harmless because of the effect on the

length of the sentence imposed by the jury.
                           EXPERT TESTIMONY

        Appellant also argues that the trial court erred in

excluding statements he made to Dr. John Wires, a clinical

psychologist, during an evaluation.    Because this issue is one

that is likely to arise on retrial, we must address it.

        During a pretrial hearing, appellant argued that the trial

court should allow Dr. Wires to testify about statements

appellant made during a clinical interview and then render an

opinion based on those statements.     The statements reflected

appellant's version of what he did and observed the night he

killed his wife, and what circumstances caused him to kill his

wife.    Appellant sought to have Dr. Wires testify about:    (1) his



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wife's taunting concerning his sexual performance; (2) his wife's

infidelity; (3) the couple's alcoholism; and (4) the

circumstances surrounding the couple's separation.   The trial

court held that it would allow Dr. Wires and other experts to

testify, "subject to a proper limiting instruction and to the

rule of relevancy, as to the history which they took in the

course of their examinations."   However, the trial court ruled

that "any opinions which they will render must be based upon

their own personal observations or on the evidence adduced at

trial."   (Emphasis in original).

     "'The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion.'"     Crews v.

Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)

(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d

838, 842 (1988)).   "[E]xperts in criminal cases must testify on

the basis of their own personal observations or on the basis of

evidence adduced at trial."   Buchanan v. Commonwealth, 238 Va.

389, 416, 384 S.E.2d 757, 773 (1989), cert. denied, 493 U.S. 1063

(1990).   "As a general rule in this Commonwealth in a criminal

case, an expert may not 'base his opinion on facts not in

evidence.'"   Papuchis v. Commonwealth, 15 Va. App. 281, 283-84,

422 S.E.2d 419, 421 (1992) (quoting Simpson v. Commonwealth, 227

Va. 557, 565, 318 S.E.2d 386, 391 (1984)).

     In this case, the trial court correctly found that



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appellant's statements to Dr. Wires regarding the details of the

offenses and his state of mind were inadmissible hearsay.

Appellant's statements to Dr. Wires were not the doctor's

"personal observations" from the testing and evaluation of

appellant, but statements of fact by appellant.    The statements

were also not "evidence adduced at trial" because appellant did

not testify.   Additionally, the trial court allowed Dr. Wires to

express an opinion regarding appellant's insanity in response to

hypothetical questions by appellant.    We hold that no abuse of

discretion occurred.
     Appellant argues that the trial court should have allowed

Dr. Wires to "give testimony and render an opinion or draw

inferences from facts, circumstances or data made known to or

perceived by . . . [him] at or before the hearing or trial."

Code § 8.01-401.1. 1   However, numerous cases have reaffirmed the

principle that experts in criminal cases may only testify based
     1
      Code § 8.01-401.1 provides as follows:

               In any civil action any expert witness
          may give testimony and render an opinion or
          draw inferences from facts, circumstances or
          data made known to or perceived by such
          witness at or before the hearing or trial
          during which he is called upon to testify.
          The facts, circumstances or data relied upon
          by such witness in forming an opinion or
          drawing inferences, if of a type normally
          relied upon by others in the particular field
          of expertise in forming opinions and drawing
          inferences, need not be admissible in
          evidence.

(Emphasis added).




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upon their personal observations or facts in evidence.   See,

e.g., Wright v. Commonwealth, 245 Va. 177, 197, 427 S.E.2d 379,

392 (1993), cert. granted and judgment vacated on other grounds,

___ U.S. ___, 114 S. Ct. 2701 (1994).   We conclude that the trial

court's ruling in this case was correct.

     Accordingly, we reverse because of the failure to sever the

possession of a firearm by a convicted felon charge and remand

for further proceedings consistent with this opinion.
                                             Affirmed in part,
                                             reversed in part,
                                             and remanded.




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