                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Alexandria, Virginia


TEDDY WOLDELASSIE ARAYA
                                         MEMORANDUM OPINION * BY
v.   Record No. 0044-02-4       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                            DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                  Benjamin N. A. Kendrick, Judge

          Mark S. Thrash for appellant.

          Leah A. Darron, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     A jury convicted Teddy Woldelassie Araya (appellant) for the

murder of his ex-wife, Minat Habte (Habte), in violation of Code

§ 18.2-32, and for use of a firearm in the commission of a murder,

in violation of Code § 18.2-53.1.   Appellant contends that the

trial court abused its discretion by admitting into evidence an

affidavit in which Habte predicted that appellant would kill her. 1

For the reasons that follow, we affirm.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       On brief, appellant also contended that the trial court
erred by failing to give a cautionary instruction but withdrew
this ground at oral argument.
                                 I.

     On July 10, 2000 appellant had a chance encounter with his

ex-wife, Habte.    Appellant later told police that Habte insulted

him, told him to stop following her, and left.   Appellant became

angry, followed Habte and a high-speed car chase ensued.

Habte's eyes were "really big and wide and she was gripping the

steering wheel."   Appellant "was scowling" while he gave chase.

Shortly after seeing the two cars pass, witnesses heard "popping

noises" and saw Habte's car roll backwards downhill; it crashed

into a retaining wall.   "[S]omebody . . . appeared to be chasing

the car from the front."

     After the shooting, appellant returned to his apartment,

called 911 and told the dispatcher he just shot his wife.   He

gave the dispatcher his name; told her where the shooting

occurred, including directions; and gave her a description of

Habte's car.   Police went to both the scene of the shooting and

appellant's apartment.   Appellant told police he followed Habte

"for about one or two blocks" and shot her "eight or nine times,

until he ran out of ammunition in the gun."   Habte suffered "a

number of gunshot wounds," at least two of which were fatal.

One of Habte's wounds indicated the shooting was from "close

range."

                                 II.

     Appellant admitted that he killed Habte; but he argued that

he did so as a result of an "irresistible impulse."   At trial,

                                - 2 -
Dr. Neil Blumberg, appellant's expert, opined "to a reasonable

degree of medical certainty, that [appellant] does suffer from

. . . actually two serious mental diseases, . . . and that as a

result of those disorders he was unable to resist the impulse to

commit the crime."     Specifically, he stated that appellant

suffered from

          a major depressive disorder, single episode,
          severe with psychotic features. And . . .
          post traumatic [sic] stress disorder,
          chronic. . . . In fact these two disorders
          had been present for some time prior to the
          offense, but certainly were present at the
          time of the offense and, in my opinion,
          directly led to his being unable to control
          the impulse to commit the crime.

Dr. Blumberg also stated that appellant was "a pretty

non-violent person" and a "peaceful law-abiding citizen."

Dr. Blumberg opined that the shooting was "so grossly out of

character for [appellant]" that he viewed the shooting as "an

explosive outburst."

     During cross-examination of Dr. Blumberg, the Commonwealth's

attorney sought to introduce into evidence an affidavit made by

Habte in September 1998 as the basis for a protective order

against appellant. 2   The Commonwealth argued the affidavit, which

the expert conceded he had reviewed, was admissible to show the

expert's bias.   The affidavit states:


     2
       The trial court had already admitted into evidence a
redacted version of the affidavit during the Commonwealth's
case-in-chief over appellant's hearsay objection. Whether the
redacted version was properly admitted is not before us.

                                 - 3 -
          On 9/24/98 my husband came in evening at
          8:00 p.m. and he was staying in his own
          bedroom until 10:30 p.m. After he calls me
          in the bedroom and he starting [sic]
          fighting and hitting me in my heart surround
          and I was fented [sic] so that quickly I
          called the police they came at 11:30 and
          they asked him and he says this is not true.
          After the police said this the 1st time we
          just live [sic] him like that if there is
          anything happened please call us they said.
          But after them left he started fighting and
          insult.

               *      *     *     *     *     *     *

          Secondly I would like to request if there is
          any thing [sic] happened he is the one he
          killed me because after the police depart "I
          will show you I will kill you said to" so
          that please give him the first and last
          warning.

               *      *     *     *     *     *     *

          He said I will show you he might be kill me.

               *      *     *     *     *     *     *

          1) I am so afraid because he is in the house
          so that he will [sic] hitting me or kill me.

          2) He has to be far from my house and around
          my job.

          3) For the last and the end the government
          may asked to far away from my surround.

     Habte signed the affidavit under oath before the intake

officer of the Arlington County Juvenile and Domestic Relations

District Court. 3   Over appellant's objection, the trial court


     3
       The Juvenile and Domestic Relations District Court for
Arlington County granted a protective order for one year on
October 13, 1998 after a hearing at which both appellant and
Habte appeared. Police found a copy of the protective order in
the glove compartment of appellant's car after the shooting.

                                - 4 -
admitted the affidavit in evidence and permitted the

Commonwealth to question appellant's expert about the contents

to establish his bias.

     The jury convicted appellant of murder and use of a firearm

in committing murder.    The trial court sentenced appellant to

twenty-two years for the murder and three years for the use of

the firearm, in accord with the jury's recommendation.

                                 III.

     Appellant contends the trial court abused its discretion in

admitting the affidavit into evidence.    Appellant argues the

affidavit and the statements contained therein were not

probative of the expert's bias.    We disagree.

     "Justice does not require exclusion of evidence that is

probative of the central issue on trial and that the accused

himself chooses to interject."     Kirk v. Commonwealth, 21

Va. App. 291, 298, 464 S.E.2d 162, 165-66 (1995).    Dr. Blumberg

testified on direct that appellant was "a pretty non-violent

person" and that, but for the shooting, he was "an otherwise

peaceful law-abiding citizen."    When appellant elicited these

statements, he opened the door for the Commonwealth to

cross-examine Dr. Blumberg on instances of appellant's violence

toward the victim.   See, e.g., Satcher v. Commonwealth, 244 Va.

220, 252, 421 S.E.2d 821, 840 (1992); Newton v. Commonwealth, 29

Va. App. 433, 456, 512 S.E.2d 846, 856-57 (1999).



                                 - 5 -
            Once a party has "opened the door" to
            inquiry into a subject, the permissible
            scope of examination on the subject by the
            opposing party is "a matter for the exercise
            of discretion by the trial court," and we
            will not disturb the court's action on
            appeal unless it plainly appears that the
            court abused its discretion.

Savino v. Commonwealth, 239 Va. 534, 545, 391 S.E.2d 276, 282

(1990) (quoting Bunch v. Commonwealth, 225 Va. 423, 438, 304

S.E.2d 271, 279-80 (1983)).   "In determining the weight to be

given the testimony of an expert witness, the fact finder may

consider the basis for the expert's opinion.   The credibility

and weight of witnesses' testimony is determined by the fact

finder."    Parrish v. Commonwealth, 38 Va. App. 607, 613, 567

S.E.2d 576, 578-79 (2002) (internal citations and quotations

omitted).   The trial court did not abuse its discretion in

permitting the Commonwealth to cross-examine Dr. Blumberg on

appellant's "peaceful" nature, as this testimony was probative

of Dr. Blumberg's bias and whether he properly considered it in

the formulation of his expert opinion at trial. 4

     "The bias of a witness . . . is always a relevant subject

of cross-examination."    Goins v. Commonwealth, 251 Va. 442, 465,

470 S.E.2d 114, 129 (1996) (citing Norfolk & Western Railway Co.

v. Sonney, 236 Va. 482, 488, 374 S.E.2d 71, 74 (1988); Brown v.


     4
       "[E]xperts in criminal cases must testify on the basis of
their own personal observations or on the basis of evidence
adduced at trial." Wright v. Commonwealth, 245 Va. 177, 197,
427 S.E.2d 379, 392 (1993) (citing Buchanan v. Commonwealth, 238
Va. 389, 416, 384 S.E.2d 757, 773 (1989)).

                                - 6 -
Commonwealth, 246 Va. 460, 464, 437 S.E.2d 563, 564-65 (1993)).

"The issue whether a particular question may be asked about a

witness' bias is a matter submitted to the trial court's

discretion."   Id. (citing Shanklin v. Commonwealth, 222 Va. 862,

864, 284 S.E.2d 611, 612 (1981)).     Here, the Commonwealth had

the right to test Dr. Blumberg's bias by attempting to show the

jury that Dr. Blumberg improperly discounted the information

contained in the affidavit regarding appellant's prior acts of

violence.

                                IV.

     Moreover, even assuming admission of the affidavit was

error, we hold that any error was harmless.    "The effect of an

error on a verdict varies widely depending upon the

circumstances of the case.   Each case must, therefore, be

analyzed individually to determine if an error has affected the

verdict."   Lavinder v. Commonwealth, 12 Va. App. 1003, 1009, 407

S.E.2d 910, 913 (1991) (internal citations and quotations

omitted).   "In this case, in order to determine if it plainly

appears that the error did not affect the verdict, we must

review the record and the evidence and evaluate the effect the

error may have had on how the finder of fact resolved the

contested issues."   Id. at 1007, 407 S.E.2d at 912.    "An error

does not affect the verdict if we can determine, without

'usurping the jury's fact finding function, that, had the error

not occurred, the verdict would have been the same.'"     Hanson v.

                               - 7 -
Commonwealth, 14 Va. App. 173, 190, 416 S.E.2d 14, 24 (1992)

(quoting Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 911).

     Erroneously admitted evidence may be harmless when it tends

to prove an undisputed fact that is also proven by other

independently derived evidence.     Hooker v. Commonwealth, 14

Va. App. 454, 457-58, 418 S.E.2d 343, 345 (1992).    The decisive

issue in this case was whether appellant's mind was "so impaired

by disease that he [was] totally deprived of the mental power to

control or restrain his act."     Godley v. Commonwealth, 2

Va. App. 249, 251, 343 S.E.2d 368, 370 (1986) (citing Thompson

v. Commonwealth, 193 Va. 704, 718, 70 S.E.2d 284, 292 (1952)).

     Appellant's expert opined that appellant suffered from two

mental defects and that these conditions "directly led to his

being unable to control the impulse to commit the crime."     The

Commonwealth's expert, on the other hand, stated that appellant

did "not meet the criteria for either a cognitive impairment or

a volitional impairment that would rise to the level that's

typically associated with a finding of insanity" even if he had

a mental disease.   Thus, the question before the jury was

whether appellant suffered from an irresistible impulse at the

time of the shooting, not whether the victim feared him.

     "'Even though testimony is objectionable as hearsay, its

admission is harmless error when the content of the

extra-judicicial declaration is clearly established by other

competent evidence.'"   West v Commonwealth, 12 Va. App. 906,

                                - 8 -
911, 407 S.E.2d 22, 25 (1991) (quoting Schindel v. Commonwealth,

219 Va. 814, 817, 252 S.E.2d 302, 304 (1979)).    See also Bowman

v. Commonwealth, 28 Va. App. 204, 212, 503 S.E.2d 241, 245

(1998); Ferguson v. Commonwealth, 16 Va. App. 9, 12, 427 S.E.2d

442, 444 (1993).   Thus, we must review the evidence to determine

whether the affidavit was merely cumulative and whether the

information it contained was clearly established by other

evidence.    Extensive other evidence established that the victim

feared appellant and was afraid he intended to kill her.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.    See Juares v. Commonwealth, 26 Va. App. 154, 156,

493 S.E.2d 677, 678 (1997).    So viewed, the evidence proved that

appellant had many violent confrontations with Habte during their

marriage and after their divorce in December 1999.     Habte told at

least three people at different times that appellant hit her.

Habte's sister testified appellant came home one evening and "he

started arguing with [Habte] . . . he's pulling . . . and he

wanted to hit her again. . . . And she was running."     Appellant

also "insulted her that she is sleeping with a man — with

different men in front of me."    Habte also told her sister that

appellant "hit her . . . in her breast."    Similarly, the

parties' neighbor stated that the police were called to the

marital home twice.    On one occasion, Habte appeared at the

                                 - 9 -
neighbor's door claiming appellant hit her.    Habte stayed with

the neighbor until the police arrived.    When the neighbor later

asked appellant why he hit Habte, appellant replied he had not

hit her; rather, "he merely threw a book at her."    Appellant

also told the neighbor "that [Habte's] family is a family of

whores."    After Habte went to stay with a family friend for a

week, appellant admitted to the friend he had hit Habte, "he say,

The way I hit her, it wasn't that big, or a big issue to make of

it."

       In September 1998, after one of these confrontations, Habte

sought and received the protective order that required appellant

to "refrain from committing further acts of family abuse."

Numerous witnesses, including Habte's sister and members of

appellant's family, testified about the protective order.

Police found copies of the protective order and Habte's affidavit

in support of the order in appellant's glovebox and among his

personal papers.    Under these circumstances, we find that the

affidavit was merely cumulative of other evidence that appellant

had a history of violence toward Habte and that she sought the

help of others, including the courts, for protection.

       Additionally, the evidence showed that appellant was in

control of his actions immediately after he shot Habte.

Appellant called the 911 dispatcher and told her he killed his

wife, provided the dispatcher with directions and a description

of Habte's car, and was still on the phone with the 911

                               - 10 -
dispatcher when police arrived at his apartment.    He later

revised his version of how the shooting occurred, claiming he

"blacked out."   Appellant told the Commonwealth's expert:

            He remembered that she was insulting to him,
            . . . that she called him an obscene name
            . . . . He remembers getting very angry
            with her at this. He remembers that she
            took something and threw it and hit him in
            the face, some type of small white object.
            He's not sure what it was.

            And then he said that is really the last
            thing that he remembered, that there was
            then a blank in his memory, a complete
            blank, and that the next thing that he
            remembered is that he was sitting in his own
            apartment, . . . with his handgun, and that
            he noticed that his handgun was empty when
            previously it had been fully loaded.

These actions support the Commonwealth's expert's opinion that

appellant's actions were not the product of an "irresistible

impulse."

     Lastly, Dr. Blumberg testified that the content of the

affidavit was "entirely consistent with my assessment of

[appellant's] mental state."   He stated that the affidavit

showed appellant "was out of touch with reality and delusional

about their relationship, viewing [Habte] as cheating on him,

conspiring against him when in fact he was having major

difficulties controlling his behavior with her."    Thus,

appellant's expert conceded that the affidavit merely supported

his theory of irresistible impulse.     Clearly, the record

supports that "[t]he parties have had a fair trial on the merits


                               - 11 -
and substantial justice has been reached."   Lavinder, 12

Va. App. at 1010, 407 S.E.2d at 914.   Accordingly, the judgment

of the trial court is affirmed.

                                                            Affirmed.




                             - 12 -
