PRESENT: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and McCullough, JJ., and
Millette, S.J.

CORDELL LIONEL CARTER
                                                                     OPINION BY
v. Record No. 160993                                           JUSTICE CLEO E. POWELL
                                                                     June 22, 2017
COMMONWEALTH OF VIRGINIA




                         FROM THE COURT OF APPEALS OF VIRGINIA


       Cordell Lionel Carter (“Carter”) was convicted by a jury in the Circuit Court of Amherst

County (“trial court”) of first-degree murder and use of a firearm in the commission of a felony,

in violation of Code §§ 18.2-32 and 18.2-53.1. On appeal, he argues that the trial court erred by

excluding testimony regarding the victim’s alleged acts of violence and threats. He also argues

that the trial court erred in refusing to set aside the verdict. For the following reasons, we will

affirm Carter’s convictions.

                                       I.      BACKGROUND

       “In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, the prevailing party at trial.” Scott v.

Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016).

       On January 14, 2014, Jennifer Johnson (“the victim”), was at home with her fourteen and

seven-year-old sons. 1 Carter, with whom the victim had an off-and-on romantic relationship,

came to the victim’s house and went into her bedroom where she was resting. From the living

room, her fourteen-year-old son heard Carter and the victim “arguing and bickering back and



       1
           Carter is the father of the seven-year-old child.
forth.” He then heard “something hit the floor. . . like, a boom or something dropped.” A few

seconds later, Carter walked out of the bedroom, made a comment to the children about an

ambulance, and left the residence. Carter was only in the victim’s bedroom for two to five

minutes.

       After Carter left, the victim’s fourteen-year old son went into her bedroom, where he

found her on the floor, shaking and speaking in “gibberish.” He looked for his mother’s cell

phone to call for help, but could not locate it. The victim’s son ran to Sonny Showalter’s house

about fifty yards away, and called 911. The police arrived eight minutes later, but the victim had

died in the interim. The police did not find any firearms at the house, but they did find a .38

shell casing on the bedroom floor.

       Through their investigation, the police determined that when the victim was shot, she was

standing in front of her bedroom window, directly across from the doorway to the room, at an

angle facing toward the right side of the room. The police concluded that the bullet traveled

“facing toward[] her at the same direction,” and then went through the window at an angle,

striking a post on the front porch. Medical Examiner Amy Tharp testified that the victim died

from a single bullet wound to her chest. Dr. Tharp concluded that the victim was shot from “an

intermediate range . . . within a few feet” because there was no visible soot or burns from use of

a firearm on her hands.

       The victim’s mother, Jessie Monaghan (“Monaghan”), testified that on the night before

the shooting, Carter told her that he was going to the victim’s house to give her money.

According to Carter, Johnson was blackmailing him regarding videos of Carter having sex with

Monaghan. During the course of the conversation, Carter told Monaghan that “[e]verything

would be okay.” Monaghan also spoke with the victim at some point the day prior to the




                                                 2
victim’s shooting. 2

       Immediately after the shooting, Carter called Monaghan and told her to get the children

from the victim’s house because “she was shot” and would be “dead.” Carter then called his

boss and resigned from his employment. He told his boss “that he did something bad” that

would be “on the news.”

       On the second day of trial, Carter moved for a continuance due to Monaghan’s sudden

hospitalization. Carter proffered that he intended to call Monaghan who would testify that hours

before the shooting the victim stated that Carter “wasn’t going to be around long.” He asserted

that, in light of his self-defense plea, this threat was admissible to show the victim’s propensity

for violence and that she was the initial aggressor. The trial court held that “even if [Monaghan]

was here,” the testimony would not be admissible because “the focus in self-defense is what the

defendant reasonably feared under the circumstances as they appeared to him at that time.” The

trial court reasoned that because the threat was never communicated to Carter, “it can’t go to

whether he reasonably feared.”

       Showalter testified for the defense. He testified that he did not know whether the victim

had a gun and that he never warned Carter to be careful with the victim. Carter then took the

stand, testifying on his own behalf. He stated that on the day of the shooting, he went to the

victim’s house to bring her money. He said that her son answered the door and let him in. The

victim came out to the living room and was “hollering and screaming,” so Carter and the victim




       2
          Carter claims that during Monaghan’s cross-examination, he attempted to elicit
testimony that hours before the shooting the victim said that Carter “wasn’t going to be around
long.” According to Carter, this testimony was excluded by the trial court during a sidebar.
While the transcript shows a sidebar at J.A. 68, Carter made no proffer or objection after this
sidebar to indicate an objection to any ruling. In fact, after the sidebar, he stated that he planned
to recall Monaghan “as [his] own witness later on.”


                                                  3
went into the bedroom. Carter testified that he gave the victim $500, but she wanted $1,000.

According to Carter, the victim then threatened to kill him and “reached like she had the gun.”

Carter said he then “hit her hand and her hand went up” and he heard a “pop” and the victim fell

against the wall. Carter also testified that he “tried to knock [the gun] out of her hand.” He said

that the victim fell against the wall and was “standing there” when he left. He did not see any

blood and did not think anything was wrong with her. He testified that he believed she was just

“acting out.” Carter admitted on cross-examination that the victim found sex tapes on his cell

phone of him “sleeping with” the victim’s sister and mother.

       Carter attempted to testify regarding several instances wherein the victim assaulted him

or Showalter. The trial court allowed Carter to testify to acts of violence committed by the

victim between 2012 and the date of her death. The trial court excluded testimony that the

victim stabbed a man ten years earlier, and that she had hit Carter in 2008 or 2009. The trial

court also excluded testimony that the victim allegedly broke her mother’s jaw in 2013.

       In its closing argument, the Commonwealth stated, “[t]here is a saying that says evil

triumphs when good men do nothing. Today is your chance to do something. Don’t let evil

triumph in this case, find [the defendant] guilty of first degree murder.” (See Commonwealth’s

Br. Appx. 10.) After the case was submitted to the jury, Carter objected to this statement as

purely emotional. Carter did not request a mistrial. However, the trial court found that the

Commonwealth’s statements were “not sufficient to inflame the jury. . . . So the motions are

overruled and your exceptions are noted for the record.”

       Carter then called Showalter for a proffer. Under oath, Showalter stated that he knew the

victim had a gun and that his previous testimony was not true. After the jury returned guilty

verdicts, Carter moved for a new trial based on Showalter’s proffer. The trial court denied the




                                                 4
motion.

       Carter appealed to the Court of Appeals, which affirmed his convictions in an

unpublished opinion. Carter v. Commonwealth, Record No. 2261-14-3, 2016 Va. App. LEXIS

177, at *17 (May 31, 2016) (unpublished). This appeal followed.

                                        II.      ANALYSIS

                                        A. Excluded Evidence

       “[W]e review a trial court’s decision to admit or exclude evidence using an abuse of

discretion standard and, on appeal, will not disturb a trial court’s decision to admit evidence

absent a finding of abuse of that discretion.” Avent v. Commonwealth, 279 Va. 175, 197, 688

S.E.2d 244, 256 (2010). “In evaluating whether a trial court abused its discretion, . . . ‘we do not

substitute our judgment for that of the trial court. Rather, we consider only whether the record

fairly supports the trial court’s action.’” Grattan v. Commonwealth, 278 Va. 602, 620, 685

S.E.2d 634, 644 (2009) (quoting Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906

(1997)). “The abuse-of-discretion standard [also] includes review to determine that the

discretion was not guided by erroneous legal conclusions.” Porter v. Commonwealth, 276 Va.

203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

                                          1. Threat Evidence

       Carter argues that the trial court erred in refusing to admit Monaghan’s proffered

testimony, offered during the presentation of the Commonwealth’s case-in-chief, that the victim

told her the day before her death that Monaghan had “better get [her] s*** from another n*****

because this n***** ain’t going to be around after tonight.” He asserts that the testimony was

relevant to support his claim of self-defense.

               To establish a claim of self-defense, a defendant must show that he
               reasonably feared death or serious bodily harm at the hands of his



                                                  5
               victim. Whether the danger is reasonably apparent is judged from
               the viewpoint of the defendant at the time of the incident. The
               defendant must also show that he was in imminent danger of harm,
               that is, a showing of an overt act or other circumstance that affords
               an immediate threat to safety.

Hines v. Commonwealth, 292 Va. 674, 679, 791 S.E.2d 563, 565 (2016) (citations omitted).

Evidence of a victim’s propensity for violence is relevant to determine “who was the aggressor

or what was the reasonable apprehension of the defendant for his safety.” Workman v.

Commonwealth, 272 Va. 633, 649, 636 S.E.2d 368, 377 (2006) (citation omitted). “Upon the

question of who was the aggressor, the issue is what the victim probably did,” and such evidence

is admissible even when the defendant is unaware of it. Id. (citations omitted).

       Assuming, without deciding, that the trial court erred by refusing to admit Monaghan’s

proffered testimony, we hold the error was harmless. We “will not reverse a trial court for

evidentiary errors that were harmless to the ultimate result.” Shifflett v. Commonwealth, 289 Va.

10, 12, 766 S.E.2d 906, 908 (2015). “Under the harmless error doctrine, if there was ‘a fair trial

on the merits and substantial justice has been reached, no judgment shall be arrested or reversed

. . . for any . . . defect, imperfection, or omission in the record, or for any error committed on the

trial.’” Id. (quoting Code § 8.01-678). “[W]e apply the standard for non-constitutional harmless

error, which is that such error is harmless if we can be sure that it did not ‘influence the jury’ or

had only a ‘slight effect.’” Id. (quoting Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d

728, 731-32 (2001)).

       Carter and the victim had been having a dispute about the videos of him having sexual

relations with other women, including Monaghan. Carter had a discussion with Monaghan

regarding the dispute. Recognizing that Monaghan was upset, Carter told her that “[e]verything

would be okay.” Carter then went to the victim’s home where an argument ensued. Upon

leaving the victim’s home, he made a comment to her children about an ambulance.


                                                  6
Immediately after Carter left the house, the victim’s cell phone and computer were missing.

Carter then called Monaghan and told her to go pick up the children because the victim would

“be dead, she was shot.” Carter next called his employer and resigned. During that conversation

he told his boss “that he did something bad” and that it “would be on the news.” He then took

the victim’s computer into the woods and destroyed it.

       The evidence against Carter demonstrated that the bullet traveled “facing toward[]” the

victim. The police determined that when the victim was shot she was standing in front of her

bedroom window directly across from the doorway to the room. The casing was found in the

bedroom and the bullet traveled through a window and struck a post outside.

       The medical examiner testified that the victim was shot from “an intermediate range

. . . within a few feet.” The bullet went through the victim’s chest, aorta, both lungs, and through

her spinal column which led to instant paralysis. The victim bled to death within a matter of

minutes. The medical examiner also testified that there was no visible soot or burns on the

victim’s hands from firing a gun.

       Carter’s testimony could not be reconciled with the other evidence in the case. Indeed,

Carter’s testimony of how the gun discharged changed multiple times and conflicted with the

physical evidence presented by the Commonwealth. First, Carter testified that he “hit her hand

and her hand went up . . . then [he] heard a pop.” Next, he testified that he “tried to knock [the

gun] out of her hand.” Later he testified that the victim “throwed [sic] her hand up, I seen [sic]

[the gun.] I hit her hand up in the air. Her hand came back down, then it went off.” Finally, he

testified that the victim’s “hand was on the gun before my hand was on the gun. . . . I hit her

hand up in the air. . . . But her hand evidently was twisted. If it shot her, it was twisted.” He

further testified that the victim was standing and appeared fine when he left her bedroom.




                                                 7
       We can conclude from the record “with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the judgment was not substantially

swayed by the error.” Adams v. Commonwealth, 275 Va. 260, 277-78, 657 S.E.2d 87, 97 (2008);

Clay, 262 Va. at 260, 546 S.E.2d at 731-32. Carter received a fair trial because the alleged error

in refusing to admit Monaghan’s proffered testimony was unlikely to sway the jury given the

overwhelming evidence of his guilt. Accordingly, such error was harmless.

                                        2. Character Evidence

       Carter next argues that the trial court erred in refusing to allow him to present evidence of

prior acts of violence allegedly committed by the victim. Carter argues that the trial court erred

in imposing a time limitation, only allowing testimony of specific acts that occurred since 2012.

He also argues that the trial court erred in not allowing evidence that the victim allegedly broke

her mother’s jaw in 2013. He asserts this evidence was relevant to show the victim’s character

for violence.

       “[W]here an accused adduces evidence that he acted in self-defense, evidence of specific

acts is admissible to show the character of the decedent for turbulence and violence, even if the

accused is unaware of such character.” Barnes v. Commonwealth, 214 Va. 24, 25, 197 S.E.2d

189, 190 (1973). Indeed, Virginia Rule of Evidence 2:404 provides that “evidence of a pertinent

character trait or acts of violence by the victim of the crime offered by an accused who has

adduced evidence of self-defense” is admissible.

                [T]he ultimate issue becomes whether such evidence of prior
                conduct was sufficiently connected in time and circumstances
                . . . as to be likely to characterize the victim’s conduct toward the
                defendant. Randolph[ v. Commonwealth], 190 Va. [256,] 265, 56
                S.E.2d [226,] 230[ (1949)]. Or stated alternatively, the test is
                whether the evidence of prior character is “so distant in time as to
                be void of real probative value in showing present character.” 3A
                Wigmore, Evidence § 928, at 755 (Chadbourn Rev. 1970).



                                                  8
Barnes, 214 Va. at 25, 97 S.E.2d at 190.

       However, we “will not disturb a trial court’s decision to admit evidence absent a finding

of abuse of that discretion.” Avent, 279 Va. at 197, 688 S.E.2d at 256. When a defendant alleges

that he acted in self-defense, “the number of specific acts of violence of the . . . victim which

might be introduced [is] a matter within the sound discretion of the trial court.” Burford v.

Commonwealth, 179 Va. 752, 767, 20 S.E.2d 509, 515 (1942) (citing Rasnake v. Commonwealth,

135 Va. 677, 699-700, 115 S.E. 543, 551 (1923)).

       Carter relies on Barnes in support of his arguments that the trial court erred. However,

Barnes differs from the present case in that the court in Barnes excluded all of the proffered acts

of violence evidence. To the contrary, Carter was allowed to present most of the evidence he

asked to present regarding the victim’s prior violent conduct. The trial court admitted evidence

of the victim’s violence directed toward Carter and Showalter for the two years immediately

preceding her death. It was well within the trial court’s discretion whether to admit or deny

additional evidence of the victim’s prior violent conduct. The evidence the trial court excluded

was either not relevant to the time and/or circumstances surrounding the victim’s death.

Testimony regarding a stabbing that occurred ten years prior and arose out of the victim’s

attempt to defend her sister was not relevant to the time or circumstances. Carter also admitted

he knew nothing regarding the circumstances of the victim’s alleged 2013 breaking of

Monaghan’s jaw. Therefore, he could offer no evidence as to whether the act was “likely to

characterize the victim’s conduct toward” him. Barnes, 214 Va. at 25, 97 S.E.2d at 190.

Accordingly, we hold that the trial court did not abuse its discretion in refusing to allow evidence

of these specific violent acts by the victim into evidence.




                                                  9
                                  B. Motion to Set Aside the Verdict

        Carter argues that the trial court erred in refusing to set aside the verdict because of false

testimony presented by defense witness Showalter. However, Carter did not timely proffer

Showalter’s conflicting testimony nor timely ask for a mistrial after the testimony was

proffered. 3

        Here, Carter called Showalter to testify as his own witness. Carter proceeded to ask

Showalter foundational questions, such as his relationship to the victim, whether he appeared for

trial the day before as summoned, and where he stayed the night before, all an apparent attempt

to establish Showalter as a hostile witness. During this examination, the Commonwealth

objected to the questioning stating, “[h]e’s trying to create a hostile environment instead of just

asking questions.” The trial court sustained the Commonwealth’s objection, stating: “If the

responses are evasive or nonresponsive on questions that are material to the case, that’s when the

issue or the party can be declared an adverse witness.” Carter thereafter responded that he

reserved “the right to make a proffer” on the issue of the potential bias of Showalter. During his

testimony, Showalter stated the victim did not have a gun in her house. Despite the fact that this

testimony appeared to be contrary to what he anticipated, Carter did not ask to treat Showalter as

an adverse witness in order to attack or clarify his false trial testimony at that time. Teleguz v.

Commonwealth, 273 Va. 458, 479, 643 S.E.2d 708, 722 (2007) (“[A] person may be considered

a hostile witness if his testimony surprises the party who called the person to testify at trial.”).



        3
          Carter argues, in reliance on Powell v. Commonwealth, 133 Va. 741, 112 S.E.2d 657
(1922), that the verdict should be set aside and a new trial granted when it was uncontradicted
that a material witness testified falsely at trial. However, in Powell, the conflicting evidence was
“after discovered evidence” which is not the case here. Id. at 750, 112 S.E.2d at 659. Carter was
aware of the testimony he sought to elicit and was aware that Showalter’s testimony on direct
differed from what he expected.



                                                  10
Moreover, Carter waited until the jury retired to deliberate to recall Showalter to elicit a proffer

regarding Showalter’s alleged bias. When Showalter’s proffered testimony contradicted his prior

trial testimony, Carter thereafter waited until the jury returned a guilty verdict to move for a new

trial based on Showalter’s proffered testimony.

        We will not consider Carter’s argument on appeal that the trial court erred in refusing to

set aside the verdict due to Showalter’s false testimony because such argument is waived. We

have repeatedly held that in order to preserve an issue for appeal a party must make known to the

trial court the action which he desires the court to take or his objections to the actions and the

grounds therefore “at a point in the proceeding when the trial court is in a position not only to

consider the asserted error, but also to rectify the effect of the asserted error.” Scialdone v.

Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (quotation marks and citation

omitted); Maxwell v. Commonwealth, 287 Va. 258, 267-68, 754 S.E.2d 516, 520-21 (2014)

(holding failure to make a timely motion for mistrial waives any error). Here, Carter’s motion to

set aside the verdict based on Showalter’s alleged false testimony came too late. Had Carter

raised the issue of Showalter’s differing testimony, at the time of the proffer, or earlier in the

trial, and made known what action he desired the trial court to take earlier in the trial, the trial

judge would have been in a position to address the asserted error prior to the jury returning its

verdict. Accordingly, we affirm the judgment of the trial court denying Carter’s motion to set

aside the verdict.

                                C. Commonwealth’s Closing Argument

        Carter argues that a statement made by the Commonwealth during closing argument was

inappropriate. The Commonwealth stated, “[t]here is a saying that says evil triumphs when good

men do nothing. Today is your chance to do something. Don’t let evil triumph in this case, find




                                                  11
[the defendant] guilty of first degree murder.” (See Commonwealth’s Br. Appx. 10.) After the

case was submitted to the jury, Carter objected to this statement as purely emotional. At no time

did Carter request a mistrial or a cautionary instruction. 4

       “We have repeatedly held that if a defendant wishes to take advantage on appeal of some

incident he regards as objectionable enough to warrant a mistrial, he must make his motion

timely or else be deemed to have waived his objection.” Yeatts v. Commonwealth, 242 Va. 121,

137, 410 S.E.2d 254, 264 (1991). “Making a timely motion for mistrial means making the

motion ‘when the objectionable words were spoken.’” Id. (quoting Reid v. Baumgardner, 217

Va. 769, 774, 232 S.E.2d 778, 781 (1977)). Having failed to timely raise his objection to the

Commonwealth’s closing argument, Carter is barred from doing so now on appeal. Rule 5:25;

Maxwell, 287 Va. at 267-68, 754 S.E.2d at 520-21.

                                       III.    CONCLUSION

       For the foregoing reasons, we affirm Carter’s convictions for first degree murder and use

of a firearm in the commission of first degree murder.

                                                                                         Affirmed.




       4
         The trial court found that the Commonwealth’s statements were “not sufficient to
inflame the jury. . . . So the motions are overruled and your exceptions are noted for the record.”



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