                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia


MICHAEL C. McCORMICK, II
                                           MEMORANDUM OPINION * BY
v.   Record No. 3058-01-2                 JUDGE SAM W. COLEMAN III
                                                MAY 20, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          Craig S. Cooley for appellant.

          Margaret W. Reed, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     The trial court convicted Michael C. McCormick, II,

appellant, of malicious wounding and using a firearm in the

commission of a felony.    On appeal, McCormick contends the trial

court erred by (1) permitting firearms expert Wendy Gibson to

testify and give her opinion about the scarcity and availability

of Kahr brand firearms in the Richmond area and (2) limiting the

cross-examination of Commonwealth's witness Stacy Hicks concerning

the extent and frequency of her drug use.   Finding no error, we

affirm the trial court's judgment.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                Facts

     Sasha Leadbetter was socializing with friends when they

heard gunshots some distance away.      Moments later, they heard

more gunshots which sounded closer.     The third set of gunshots

was so close they "dropped down" as a precaution.     Leadbetter

was shot in the head.   Her eyes were damaged and her injuries

required surgery, including the removal of a portion of her left

frontal brain lobe.

     Earlier that evening, appellant had been with Stacy Hicks

and Angela Piland at a nearby bar.      When they left the bar, a

man approached them and asked for money.     Appellant refused to

give the man money and said "[F]uck you, nigger, get a job."

The man ran, and appellant chased him.     Hicks and Piland

returned to Piland's apartment.

     Raylonzo Blathers testified that at the date and location

of the shooting he saw a white man walking down the side of the

street shooting his gun across the street and saw a black man

backing up across the street.   Blathers heard the white man,

whom he identified as appellant, say, "I'm tired of you

motherfuckers taking my money."   When the black man turned the

corner, the white man got into a black truck with a camper

shell, "sped" to the corner, stopped, and fired a shot down the

street.

     Robert Vaughn testified that on the same date and location

he saw a black truck skid to a stop at the intersection where
                              - 2 -
the shooting occurred.   Vaughn saw a man extend his arm out of

the truck window and fire shots.   After the man drove away,

Vaughn "snuck" down the block and saw a girl lying wounded in

the street.

     After appellant and Hicks and Piland separated following

their encounter with the panhandler, appellant went to Steven

McNear's party.   Appellant climbed over McNear's six-foot high

fence in order to get to McNear's backyard.    According to

McNear, appellant was "jumping" around and appeared anxious.

Appellant told McNear he had gotten into an argument with a man

who had asked for money and had shot the man.    McNear recalled

that appellant carried a Kahr brand pistol.    McNear testified

appellant told him, in a later conversation, that none of what

he previously had told McNear about the shooting was true and

that he was only trying to shock McNear.

     After leaving McNear's party, appellant went to Piland's

apartment and yelled for her to let him inside.    When neither

Piland nor Hicks answered the door, appellant climbed in through

a window.   Hicks testified that appellant told them he was

moving to Africa and said "he shot the man who asked us for some

change in the stomach three times."     Appellant said, "I made the

nigger dance."    When Hicks and Piland said they were going to

call the police, appellant said he was just "joking."    Appellant

grabbed the phone from Hicks and broke it, and eventually left

Piland's apartment.
                                - 3 -
     The next day, Hicks noticed an article in the newspaper

about Leadbetter being shot in the area where the encounter had

occurred.   When Hicks mentioned the article to appellant,

appellant became "flush" and denied knowing anything about the

shooting.

     At trial, firearms expert Wendy Gibson concluded that based

on the rifling characteristics on the cartridge casings found

near the shooting the shots "probably" were fired from a Kahr

firearm.    Gibson testified that based on her experience with the

sale of guns at local gun stores in the Richmond area, few Kahr

pistols are sold there.   She also explained that in the four

offices of the statewide forensics laboratory, only five Kahr

pistols had come through for examination.    Gibson did not

specify the time frame or total number of weapons included in

the statewide database, but testified that the Richmond office

alone examined approximately 1,500 to 2,000 firearms a year.

Appellant had a permit to carry a concealed weapon and had a

black Ford Ranger pickup truck registered in his name.

                          Expert Testimony

     "Where the admissibility of expert testimony is challenged

on appeal, the standard of review is whether the trial court

abused its discretion."    Currie v. Commonwealth, 30 Va. App. 58,

64, 515 S.E.2d 335, 338 (1999).   "Expert testimony is

appropriate to assist triers of fact in those areas where a

person of normal intelligence and experience cannot make a
                              - 4 -
competent decision."   Utz v. Commonwealth, 28 Va. App. 411, 423,

505 S.E.2d 380, 386 (1998).   "The expert testimony must be

relevant, and the trial judge must determine whether the subject

matter of the testimony is beyond a lay person's common

knowledge and whether it will assist the trier of fact in

understanding the evidence or in determining a fact in issue."

Id.

      Gibson, a forensic scientist in the field of firearm and

tool mark identification, qualified, without objection, as an

expert in the area of firearms.    Gibson testified that the

rifling characteristics on the cartridge casings found in the

street were consistent with and similar to those of a Kahr

pistol.   Test results indicated that all of the cartridge

casings collected at the scene were fired from the same weapon.

Based on her experience and knowledge about gun sales in local

gun shops, Gibson knew that few Kahr firearms were sold in the

Richmond area, and so testified.   Gibson knew that the data

recorded in the NIBIN system for firearms examined in forensic

laboratories in Virginia, Maryland, and Washington, D.C., showed

that only five of the 1,500 to 2,000 that were examined in the

Richmond laboratory had been Kahr brand firearms.   The trial

court allowed Gibson to testify as to "her familiarity in this

area based on the information that she has received as a firearm

expert, and that information includes the NIBIN information."

Gibson's testimony was within her area of expertise, was not
                              - 5 -
within the range of the jury's common experience, was relevant,

and assisted the trier of fact in understanding the evidence.

See Velazquez v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213,

218 (2002).    The trial court did not abuse its discretion in

admitting this expert testimony.

                       Cross-Examination Issue

     "Limitation of cross-examination is a matter within the

sound discretion of the trial court and is subject to review

only for abuse of discretion."     Naulty v. Commonwealth, 2

Va. App. 523, 529, 346 S.E.2d 540, 543 (1986).    Once the right

to cross-examine has been fairly and substantially exercised,

the trial court may exercise its discretion to prevent the right

from being abused.    Maynard v. Commonwealth, 11 Va. App. 437,

444, 399 S.E.2d 635, 639 (1990) (en banc).    "[T]he defendant's

right to cross-examine witnesses does not extend to collateral

and irrelevant matters.    A witness cannot be impeached by

evidence of a collateral fact which is not relevant to the

issues of the trial, even though to some extent it has a bearing

on the issues of credibility."     Id.

     At trial, appellant's counsel asked Hicks several questions

about her drug use during the time frame surrounding the crime. 1

     1
         The following dialogue occurred:

            [DEFENSE COUNSEL:] Now, let me ask you
            this. Either before that date of July 21 or
            this discussion that you indicated that you
            had
                                - 6 -
or that you heard Mike have, had you used
controlled substances?

[HICKS:]   Yes.

[DEFENSE COUNSEL:] And how long had you
used control [sic] substances?

[HICKS:]   About two months, two or three
months.

[DEFENSE COUNSEL:]    And what were you using?

[HICKS:]   Heroin.

[DEFENSE COUNSEL:]    And how frequently were
you using?

[COMMONWEALTH'S ATTORNEY]: Judge, objection
at this time. Relevancy. The question may
be posed if she was using heroin at the time
of the offense, but not anything else.

THE COURT: Sustained. You may ask her, her
condition at the time this happened, but the
fact she could have been using substances
three months before or how often she was
using the three months before are simply not
relevant. Let's narrow down the time.

[DEFENSE COUNSEL:] On this date, what were
you using? How frequently?

[HICKS:]   Nothing.

[DEFENSE COUNSEL:] Nothing this particular
date. You were an addict the day before but
didn't use –-

[COMMONWEALTH'S ATTORNEY]:    Judge, objection
to –-

[HICKS:]   I was not an addict.

THE COURT:   Sustained.

[DEFENSE COUNSEL:]    You were never an
addict?


                      - 7 -
[HICKS:] No, I was an addict later on, but
it doesn't happen overnight.

[DEFENSE COUNSEL:] So it didn't happen in
two months, I take it?

[HICKS:]   No.

[COMMONWEALTH'S ATTORNEY]:   Judge, my
continued objection.

THE COURT:   Sustained.

[DEFENSE COUNSEL:]   Had you used the day
before?

[COMMONWEALTH'S ATTORNEY]:   Objection,
again, to relevance.

THE COURT:   Sustained.

[DEFENSE COUNSEL:] Judge, the impact of
drugs over a period of time is certainly
relevant -–

THE COURT: I've sustained the objection.
Let's move on, counsel. She said she was
using nothing that day.

[DEFENSE COUNSEL:]   And you continued to use
after that?

[COMMONWEALTH'S ATTORNEY]:   Judge –-

THE COURT:   Sustained.

[DEFENSE COUNSEL:] You made a statement
subsequent to all of this, correct, to the
police?

[HICKS:]   Yes.

[DEFENSE COUNSEL:]   Were you using heroin at
that time?

THE COURT: On the date she made the
statement to the police?

[DEFENSE COUNSEL:]   That's correct.

                     - 8 -
Hicks testified that she had been using heroin for two or three

months at the time of the crime.     When appellant's counsel asked

how frequently Hicks was using the heroin, the Commonwealth's

attorney objected on the basis of relevancy, and took the

position that counsel could only ask about Hicks's drug use at

the time of the crime, but not about her frequency of drug use

months before the crime.   The court sustained the objection and

ruled that, "You may ask her, her condition at the time this

happened, but the fact she could have been using substances

three months before or how often she was using [the substances]

. . . are simply not relevant.    Let's narrow down the time."



          THE COURT: All right. On the date you made
          the statement to the police, were you using
          heroin on that date?

          [HICKS:]   Probably not.

          [DEFENSE COUNSEL:]     Probably not?

          [HICKS:] I wouldn't imagine I would talk to
          the police when I was using heroin.

          [DEFENSE COUNSEL:] Why would you imagine
          that you wouldn't be using heroin when you
          were talking to the police?

          [HICKS:]   Well, they could lock you up.

          [DEFENSE COUNSEL:] I see. And your
          recollection of what you're telling these
          folks today is based in part on your
          discussions that you've described to us with
          Ms. Piland?

          [HICKS:] What I'm discussing today is what
          I heard and what I saw.

                                 - 9 -
Hicks testified that she had not used heroin on the day of the

crime.

     Appellant's counsel was permitted to prove that Hicks had

used heroin for two or three months prior to the shooting and to

cross-examine Hicks about her drug use on the day of the

shooting.   We cannot say that the trial court abused its

discretion by limiting the testimony about Hicks's drug use to

the time frame of the day of the crime.    Whether Hicks used

drugs months before the crime and how frequently she used drugs

months before the crime are collateral and of little or no

relevance other than to portray her as a drug addict.   No

evidence was introduced or proffered that heroin use for two or

three months prior to an event would prevent a person from

perceiving or recalling events.   The appellant sought to suggest

by innuendo that the prior drug use rendered Hicks's testimony

unworthy of belief.   On the record, the trial court did not

abuse its discretion by limiting the cross-examination of Hicks.

     For these reasons, we affirm McCormick's convictions for

malicious wounding and use of a firearm.

                                                         Affirmed.




                               - 10 -
Benton, J., dissenting.

     I would hold that defense counsel was deprived of the

opportunity to fully cross-examine the witness and that the

record did not contain a factual basis to support the firearms

expert's testimony about the popularity and scarcity of the

handgun.

                                 I.

     "[A] primary interest secured by [the Sixth Amendment to

the Constitution] is the right of cross-examination."     Douglas

v. Alabama, 380 U.S. 415, 418 (1965).    "Cross-examination . . .

[is] fundamental to the truth-finding process."     Barrett v.

Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194 (1986).      In

order to further these interests, "the cross-examiner is . . .

permitted to delve into the witness' story to test the witness'

perceptions and memory, [and] the cross-examiner has

traditionally been allowed to impeach, i.e., discredit the

witness."   Davis v. Alaska, 415 U.S. 308, 316 (1974).   "Although

a trial [judge] may exercise discretion to see that the right of

cross-examination is not abused, the discretion may be employed

only after the right to cross-examine has been fairly and

substantially exercised."   Barrett, 231 Va. at 108, 341 S.E.2d

at 194.

     After testifying on direct examination about events that

occurred a year earlier, Stacy Hicks testified on

cross-examination as follows:
                                - 11 -
Q Now, let me ask you this. Either before
that date of July 21 or this discussion that
you indicated that you had or that you heard
Mike have [after July 21], had you used
controlled substances?

A   Yes.

Q And how long had you used control
substances?

A   About two months, two or three months.

Q   And what were you using?

A   Heroin.

Q   And how frequently were you using?

[PROSECUTOR]: Judge, objection at this
time. Relevancy. The question may be posed
if she was using heroin at the time of the
offense, but not anything else.

THE COURT: Sustained. You may ask her, her
condition at the time this happened, but the
fact she could have been using substances
three months before or how often she was
using the three months before are simply not
relevant. Let's narrow down the time.

           *   *     *      *     *   *   *

Q   Had you used the day before?

[PROSECUTOR]:      Objection, again, to
relevance.

THE COURT:     Sustained.

[DEFENSE ATTORNEY]: Judge, the impact of
drugs over a period of time is certainly
relevant --

THE COURT: I've sustained the objection.
Let's move on, counsel. She said she was
using nothing that day.

Q   And you continued to use after that?


                         - 12 -
             [PROSECUTOR]:    Judge --

             THE COURT:    Sustained.

     I would hold that the trial judge impermissibly narrowed

trial counsel's ability to demonstrate by cross-examination that

the witness' heroin use was substantial.      In determining the

extent to credit the witness' ability to remember and perceive

the events to which she testified, the jury was entitled to know

the severity of the witness' heroin addiction.         Indeed, the

significance of the witness' heroin addiction was sufficient for

the trial judge to permit the prosecutor to ask the witness the

following question on redirect:

             Q    . . . [H]ow long have you been clean now?

             [DEFENSE ATTORNEY]:    Objection to the
             relevance of that.

             THE COURT:    Overruled.

             A    Almost two months.

     What the jury did not learn, however, as contained in the

proffer of the witness' testimony, was that she had used heroin

two to three times a week prior to July 21, 2000; that, although

she denied using heroin on July 21, 2000, she used it every day

after July 21, 2000 for almost a year; that she sometimes used

five bags of heroin each day; and that she also used cocaine and

marijuana.       This evidence was relevant because it bore on the

jury's obligation to determine the credibility of the witness.

The jury was entitled to consider this evidence in weighing the


                                   - 13 -
value of the witness' testimony concerning her purported

recollection and perception of the events.

                                 II.

     Hicks, who was with Michael C. McCormick on the night of

July 21, 2000 when he chased a man near the bar, testified that

McCormick had a concealed weapon permit.     Although she did not

see McCormick with a weapon that night, she knew he often

carried "a small, black handgun."      Another witness, who was a

former police officer and was familiar with McCormick's gun use,

testified that when McCormick first received his gun permit he

owned "a Glock .45 caliber but later possessed a shiny,

chrome-plated "Kahr pistol, either .9 millimeter or .40

caliber."

     The record establishes that the police did not recover the

gun that fired the bullet that wounded Sasha Leadbetter.     The

evidence proved, however, that the police discovered six

cartridge cases in the area of the shooting and recovered from

the hospital the bullet that wounded Leadbetter.

     On direct examination, Wendy Gibson, a firearms expert,

testified that she examined the bullet that wounded Leadbetter

and the six cartridge cases found near the area of the shooting.

She testified as follows concerning the bullet:

                 It is a caliber .9 millimeter Luger.
            It's a jacketed bullet. I was able to
            determine that it had been fired from a
            firearm that had six lands and grooves
            inclined to the right with a polygonal type
                                - 14 -
          of rifling, which means the rifling in that
          firearm has been suaged into the firearm as
          opposed to being cut.

          Q Now, when you say polygonal, is that a
          unique characteristic, by any means?

          A It's a type of rifling that manufacturers
          choose to use, and there are a few that do
          use them.

     In addition, Gibson testified that all the cartridges had

been "fired in one firearm."   She also testified as follows

concerning her examination of one of those cartridges:

          Q And based on those characteristics, what
          was your conclusion as to what type of gun
          fired that cartridge case?

          A In my certificate of analysis, I listed a
          Kahr firearm.

                 *    *    *     *      *   *   *

               We have a computer system in our
          laboratory called NIBIN. It's similar to
          the system used for fingerprinting. And in
          our system, we can put an image of a
          cartridge case in and we can compare them
          through electronic means to other cartridge
          cases trying to connect possible cartridge
          cases from crime scenes.

               In this particular case, here I have an
          image of the . . . cartridge case on the
          right, and this is from a testfire from a
          Kahr K .9 pistol that had been in our
          laboratory. This is a known testfire that
          we produce at our laboratory. And during my
          examination, based on these characteristics
          when I conducted this search there were
          similar characteristics between the two, the
          [cartridge case] and the known Kahr pistol.
          This was part of what was able to bring me
          to the conclusion that the cartridge cases
          may have been fired in a Kahr pistol.


                               - 15 -
     On cross-examination, however, Gibson testified as follows:

          Q That's not the only type of pistol, brand
          of pistol, make of pistol that would also
          cause this same appearance, correct?

          A There's a possibility, yes, that's
          correct.

          Q In fact, while you picked out the name
          Kahr to put into your report, in fact, the
          . . . bullet that you found, I believe the
          actual language is firearms that produce
          class characteristics on the . . . bullet
          include but are not limited to pistols with
          the brand name Kahr chambered to fire
          caliber .9 millimeter Luger cartridges,
          correct?

          A   That is correct.

          Q So there are other types of weapons,
          brands of weapons that also would give the
          very same appearance as this Exhibit 16,
          correct?

          A   There may be.   That's true.

          Q   And you can't exclude that?

          A   That's correct.

          Q Indeed, you did not list that the items
          -- let me rephrase that. Can you say with
          certainty that the . . . bullet . . . that
          was recovered came from the very same weapon
          that these cartridge casings were fired
          from?

          A   No, I cannot.

Indeed, the certificate of analysis contained the following

conclusion about the bullet and the cartridges:

          Firearms that produce class characteristics
          like those present on the . . . cartridge
          cases and the . . . bullet include, but are
          not limited to, pistols with the brand name

                                 - 16 -
          Kahr chambered to fire caliber 9 mm Luger
          cartridges.

     Despite the equivocal nature of this report and Gibson's

testimony, the prosecutor sought to establish "how popular [the

Kahr pistol] may be" on redirect examination of Gibson.    After

the witness testified that she was "slightly familiar with it,"

the Commonwealth was permitted, over McCormick's objection, to

ascertain the expert's personal view of the scarcity and

popularity of the Kahr pistol.

          Q And what is your opinion as to it being a
          popular firearm or it being very scarce?

                  *      *   *    *       *   *   *

          A   Could you please repeat that.

          Q With regards to the Kahr pistol, brand
          name Kahr, you have been able to do some
          research -- well, in your training and
          experience, you've had access to
          documentation about brand names of guns,
          correct?

          A   Correct.

          Q And you also, in your training and
          experiences, you have contact with the
          individuals who sell firearms in the area;
          is that correct?

          A   Correct.

          Q And so you have knowledge about how
          popular the sale of a Kahr pistol is; is
          that right?

          A   Personal knowledge, yes.

          Q Okay. And what do you know, in terms of
          it being a popular gun, as in is it sold a
          lot relative to other brands or not?

                                 - 17 -
           A My personal experience at local gun
           stores is that there are few Kahr pistols
           sold in this local area. And statistically
           from our laboratory, I know that we have
           statewide between our four offices, five
           Kahr pistols come into our laboratory for
           examination.

     Expert testimony "cannot be speculative or founded upon

assumptions that have an insufficient factual basis."

Tittsworth v. Robinson, 252 Va. 151, 154, 475 S.E.2d 261, 263

(1996).   A review of portions of Gibson's proffered testimony,

which was put in the record in support of the objection,

establishes the lack of basis for her testimony concerning the

popularity or scarcity of the Kahr pistol.

           Q . . . . Can you tell the Judge or could
           you have told this jury how many Kahr
           pistols have been manufactured in the United
           States?

           A   No, sir, I cannot.

                   *    *    *      *     *   *    *

           Q There is no record keeping of movement of
           guns from one state to the other, legally
           possessed and purchased guns, correct?

           A   As far as I know, that's correct.

           Q You do not know how many Kahr pistols are
           in the Commonwealth of Virginia?

           A   That's correct.

           Q And you do not know how many Kahr pistols
           might be in the Richmond vicinity?

           A   That's correct, sir.

           Q Not only don't you, you have no idea
           whether there's 10,000? You have no idea?

                                 - 18 -
          A     That's correct, sir.

          Q All you can answer to is the number of
          Kahr pistols that have come through either
          for evaluation or some form of assessment by
          the office at which you work as a forensic
          scientist; is that correct?

          A     Yes, sir.   That's correct.

     I would hold that Gibson's redirect testimony concerning

her personal knowledge of the popularity or scarcity of the Kahr

pistol was inadmissible.     I would also hold that this error was

not harmless.    The harm in this evidence comes from the effect

the jury may have given to it in assessing the prosecutor's

other arguments about this evidence -- that the "Kahr .9

millimeter [is] a rare gun"; that "they are so rare that in [the

expert's] experience she knows of 5 out of 2000 that have come

up in Richmond."    This evidence was used to provide a necessary

link between McCormick, a gun the prosecutor alleged was rare,

and the bullet removed from Leadbetter.

     For these reasons, I would reverse the convictions and

remand for a new trial.




                                  - 19 -
