                       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


                               - 6 -
             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.



                                 - 7 -
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).


                                - 8 -
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



                                 - 9 -
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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