                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued by teleconference


QUY THI NGUYEN, S/K/A
 QUI THI NGUYEN
                                            MEMORANDUM OPINION * BY
v.   Record No. 0432-02-4                 JUDGE ROBERT J. HUMPHREYS
                                                MARCH 25, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                        Joanne F. Alper, Judge

             Jonathan Shapiro (Law Offices of Jonathan
             Shapiro, P.C., on briefs), for appellant.

             Michael T. Judge, Assistant Attorney General
             (Jerry W. Kilgore, Attorney General, on
             brief), for appellee.


     Quy Thi Nguyen appeals her conviction, after a jury trial,

for first-degree murder and for use of a firearm in the commission

of murder.    Appellant contends the trial court erred in allowing

the Commonwealth's expert psychologist to testify:       1) that "the

recognized defense of 'irresistible impulse' should not be

considered"; 2) that "[appellant's] version of events could not be

trusted"; and 3) as to statements made to him by appellant's

estranged husband.    Appellant further argues that the trial court


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
erred in refusing to allow her to present testimony concerning an

incident she had witnessed, where the victim "order[ed] a third

person to commit an assault."   For the reasons that follow, we

affirm the judgment of the trial court.

                                  A.

     Appellant failed to preserve for appeal the issues she

raises with regard to the testimony of the Commonwealth's

psychologist, Dr. William J. Stejskal.    Indeed, appellant

concedes that she raised no objection to the testimony at trial.

     Rule 5A:18 provides that "[n]o ruling of the trial

court . . . will be considered as a basis for reversal unless

the objection was stated together with the grounds therefor at

the time of the ruling, except for good cause shown or to enable

the Court of Appeals to attain the ends of justice."    Appellant

thus asks us to consider these issues on appeal pursuant to the

"good cause" or "ends of justice" exceptions to Rule 5A:18,

contending that the admission of Dr. Stejskal's testimony served

to negate her "recognized" defense of irresistible impulse.       We

disagree and find that we are unable to consider appellant's

assigned errors in this regard.

     We first note that, despite appellant's claim to the

contrary, it is clear that she raises a claim of ineffective

assistance of trial counsel on appeal to this Court.    However,

we have long recognized that claims of ineffective assistance of

counsel may no longer be raised on direct appeal.    In fact, Code

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§ 19.2-317.1, which allowed direct appeal of such claims under

certain circumstances, was repealed in 1990.     Therefore, we do

not consider this issue further.

     Moreover, it is axiomatic that the "good cause" exception

to Rule 5A:18 relates to the reason why an objection was not

stated at the time of the ruling.      See Townes v. Commonwealth,

234 Va. 307, 319, 362 S.E.2d 650, 656-57 (1987) (holding that

pro se representation is not "good cause" for failing to

object), cert. denied, 485 U.S. 971 (1988); Snurkowski v.

Commonwealth, 2 Va. App. 532, 536, 348 S.E.2d 1, 3 (1986)

(holding that futility of an objection is not "good cause" for

failing to object); see also Campbell v. Commonwealth, 14

Va. App. 988, 996, 421 S.E.2d 652, 656-57 (1992) (Barrow, J.,

concurring).   On this record, we see no reason for appellant's

failure to object which would satisfy the "good cause" exception

to Rule 5A:18.

     Finally, as appellant recognizes,

          [u]nder Rule 5A:18 we do not notice the
          trial errors for which no timely objection
          was made except in extraordinary situations
          when necessary to enable us to attain the
          ends of justice. The laudatory purpose
          behind Rule 5A:18, and its equivalent
          Supreme Court Rule 5:25, frequently referred
          to as the contemporaneous objection rules,
          is to require that objections be promptly
          brought to the attention of the trial court
          with sufficient specificity that the alleged
          error can be dealt with and timely addressed
          and corrected when necessary. The rules
          promote orderly and efficient justice and


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          are to be strictly enforced except where the
          error has resulted in manifest
          injustice. . . .

               [In determining] [w]hether we apply the
          bar of Rule 5A:18 or invoke the ends of
          justice exception, we must evaluate the
          nature and effect of the error to determine
          whether a clear miscarriage of justice
          occurred. We must determine whether the
          error clearly had an effect upon the outcome
          of the case. The error must involve
          substantial rights.

Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10

(1989) (emphases added).   "Thus, the 'ends of justice' provision

may be used when the record affirmatively shows that a

miscarriage of justice has occurred, not when it merely shows

that a miscarriage might have occurred."   Mounce v.

Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).

               Ordinarily, in the criminal context,
          application of the ends of justice exception
          is appropriate where "[the accused] was
          convicted for conduct that was not a
          criminal offense" or "the record
          affirmatively proves that an element of the
          offense did not occur." However, some
          procedures are so crucial that a court's
          failure to adhere to them constitutes error
          that is clear, substantial and material even
          in the absence of affirmative proof of error
          in the result.

Herring v. Herring, 33 Va. App. 281, 287, 532 S.E.2d 923, 927

(2000) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221-22,

487 S.E.2d 269, 272-73 (1997)).

     Accordingly, if the record before us proved that, under no

circumstances, could the jury have convicted appellant of the



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crimes charged, there would be a reasonable basis for this Court

to consider these issues, raised for the first time on appeal.

However, the record in this case does not clearly demonstrate

that there was no evidence, absent Stejskal's testimony, upon

which appellant could have been convicted of the crimes charged.

Nor does the record reflect any "material" failure on the part

of the trial court to adhere to "crucial procedure" as it

pertained to Dr. Stejskal's testimony.   Thus, we find that the

ends of justice, likewise, do not require that we consider these

issues for the first time on appeal.

                                 B.

     Appellant next contends that the trial court erred by

refusing to allow her to testify that, on an occasion prior to

the shooting, she had witnessed the victim order another

individual to physically harm another person.   We once again

disagree.

     Here, appellant was charged with first-degree murder.

Therefore, the Commonwealth had the burden of proving that

appellant killed the victim and that the killing was willful,

deliberate, and premeditated.    See Stokes v. Warden, 226 Va.

111, 117, 306 S.E.2d 882, 885 (1983).

     "In determining whether evidence is admissible, much must

be left to the sound discretion of the trial court."    Spencer v.

Commonwealth, 240 Va. 78, 99, 393 S.E.2d 609, 622 (1990)

(citation omitted)).   "As a general rule, a litigant is entitled

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to introduce all competent, material, and relevant evidence

tending to prove or disprove any material issue raised, unless

the evidence violates a specific rule of admissibility."      Tarmac

Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458

S.E.2d 462, 465 (1995).   "'Evidence is admissible if it is both

relevant and material,' and it is inadmissible if it fails to

satisfy either of these criteria."      Peeples v. Commonwealth, 30

Va. App. 626, 640-41, 519 S.E.2d 382, 389 (1999) (quoting

Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 198, 361

S.E.2d 436, 441, 442 (1987)).   "Evidence is relevant if it has

any logical tendency, however slight, to establish a fact at

issue in the case."   Ragland v. Commonwealth, 16 Va. App. 913,

918, 434 S.E.2d 675, 678 (1993).   "Evidence is material if it

relates to a matter properly at issue."      Evans-Smith, 5 Va. App.

at 196, 361 S.E.2d at 441.

     Here, the trial court refused to admit appellant's

testimony pertaining to the incident in question, stating:

          because then it gets into the whole
          collateral issue of [the other individual]
          or what else happened.

               . . . But that's not an issue of
          interpretation of what [the victim's],
          quote, order was, and this sort of thing.

          If it was physical action by [the victim]
          directly where he was doing the fighting or
          the hurting, that's one thing. But I think




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          when you get into an order to someone else,
          that's not.

     Indeed,

          [i]t is well settled in Virginia that where
          an accused adduces evidence that he acted in
          self-defense, evidence of specific acts is
          admissible to show the character of the
          victim for turbulence and violence, even if
          the accused is unaware of such character.
          Barnes v. Commonwealth, 214 Va. 24, 197
          S.E.2d 189 (1973); Stover v. Commonwealth,
          211 Va. 789, 180 S.E.2d 504 (1971); Randolph
          v. Commonwealth, 190 Va. 256, 56 S.E.2d 226
          (1949). We held in Jones v. Commonwealth,
          196 Va. 10, 15, 82 S.E.2d 482, 485 (1954),
          that "[t]he evidence and inferences
          deducible therefrom may be such at times as
          to justify the submission of whether or not
          the killing was in self-defense, as well as
          whether or not it was accidental."

Jordan v. Commonwealth, 219 Va. 852, 855, 252 S.E.2d 323, 325

(1979).

     However,

          "[s]uch evidence is admissible only when the
          defendant has interposed a plea of
          self-defense [. . .], and when a proper
          foundation is laid by proof of some overt
          act justifying such defense [. . .]. The
          trial court should exercise a sound legal
          discretion in determining whether or not the
          proper foundation has been laid for the
          introduction of the offered testimony."

Burford v. Commonwealth, 179 Va. 752, 767, 20 S.E.2d 509, 515

(1942) (omissions in original) (quoting State v. Jennings, 28

P.2d 448 (1934)).

          The "crucial issues" in a plea of
          self-defense are the accused's "state of
          mind and the circumstances as they
          reasonably appeared to [the accused] at the

                              - 7 -
          time of the shooting." Jones v.
          Commonwealth, [217 Va. 226, 230, 228 S.E.2d
          124, 125 (1976)]. The test of self-defense
          is whether the accused "reasonably fear[ed]
          death or serious bodily harm to himself at
          the hands of his victim." McGhee [v.
          Commonwealth, 219 Va. 560, 562, 248 S.E.2d
          808, 810 (1978)]. Thus, "[i]t is not
          essential to the right of self-defense that
          the danger should in fact exist." Id.
          However, when the accused fears that a
          person intends to murder or inflict serious
          bodily injury, and there is an "'overt act
          indicative of such an intent, . . . [the
          accused may be justified in] killing [or
          injuring] the party by way of prevention.'"
          Harper v. Commonwealth, 196 Va. 723, 731, 85
          S.E.2d 249, 254 (1955) (citation omitted).

Peeples, 30 Va. App. at 643, 519 S.E.2d at 390.

     In the case at bar, at the time appellant sought to

introduce the evidence of the victim's prior violent conduct,

although appellant had claimed that she shot the victim in

self-defense, she had not yet testified as to her version of the

events as they pertained to the shooting.   Instead, the only

version of the events that had been proffered at that point, was

from the perspective of the Commonwealth's witnesses, who

testified that the victim went to appellant's apartment to

retrieve his belongings, that he walked over to appellant's car

to speak with her when he saw her drive into the apartment

complex parking lot, and that he was walking away from appellant

when she shot him in the back.    Thus, at the time appellant

sought to introduce the evidence, there had been no "sufficient

showing" of an overt act by the victim, which would have been


                                 - 8 -
necessary for the trial court to properly admit the excluded

evidence.

     Furthermore, as alluded to by the trial court, the

"specific instance" appellant sought to introduce was not a

specific instance of violence committed by the victim, but a

statement, amounting to hearsay, where the victim allegedly

ordered a third party to commit an act of violence.    See

Robinson v. Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476-77

(1999) ("[H]earsay evidence is inadmissible unless it falls

within one of the recognized exceptions to the hearsay rule,

. . . [and] the party attempting to introduce a hearsay

statement has the burden of showing the statement falls within

one of the exceptions.").

     Moreover, appellant failed to proffer the actual statement

and circumstances of the event, leaving the trial court with

only the ability to surmise whether or not the "order" was

actually what appellant purported – an order to do violence –

and/or whether the "order" was actually carried out.

Accordingly, on this record, we find no error in the trial

court's refusal to admit the evidence.

     For these reasons, we affirm the judgment of the trial

court.

                                                             Affirmed.




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