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Victim properly allowed to invoke Fifth Amendment

The trial court correctly allowed a malicious wounding victim to invoke her Fifth Amendment privilege against self-incrimination at appellant’s trial. Further, there was no error in allowing the prosecutor to introduce a transcript of the victim’s testimony at appellant’s preliminary examination.

Overview

The victim, Felton, is appellant Palmer’s wife. She was called to testify at Palmer’s trial but invoked the Fifth Amendment. The prosecutor proffered that Felton was facing child abuse/neglect charges, and the prosecutor in that case was in the courtroom to observe Felton’s testimony. Over Palmer’s objections, the court excused Felton and allowed the prosecutor to introduce a transcript of Felton’s testimony at Palmer’s preliminary hearing.

The transcript showed that Felton and Palmer argued about Felton’s alleged affair with Keith Scott. Palmer left the apartment but returned an hour or two later. He kicked in the door and began cutting her with a knife. He stopped his attack and fled the scene.

The prosecutor also presented additional witnesses. A neighbor said she found Felton bleeding on the floor in a hallway and called 911. An evidence specialist photographed two knives a police officer found several hundred yards from the scene. The specialist’s photographs of the knives and the crime scene, along with his medical records from the attack were admitted into evidence. The police officer and a tracking dog found Palmer, who was taken into custody.

After a bench trial, the court convicted Palmer of aggravated malicious wounding. The court rejected counsel’s argument that Palmer was acting in the heat of passion when he attacked Felton. Palmer appealed.

Fifth Amendment

Palmer asserts the trial court erred by allowing Felton to invoke the Fifth Amendment and refuse to testify, and then allowing the prosecutor to use the transcript of Felton’s testimony at Palmer’s preliminary examination.

Palmer argues “that the trial court did not properly determine if Felton could plead the Fifth because ‘the trial court did not inquire of the witness what the actual reason was for her assertion.’”

The Fifth Amendment privilege against self-incrimination “‘protects against real dangers [of prosecution], not remote and speculative possibilities. …

“[T]he Commonwealth proffered that Felton had pending charges against her for felony child abuse/neglect. Because the charges were already pending, they certainly represented ‘real dangers, not remote and speculative possibilities.’ … The Commonwealth also proffered that the attorney for the Commonwealth who was prosecuting Felton on the pending child abuse/neglect charge and an individual from the City’s Attorney’s Office were present in the courtroom ‘to observe her testimony.’

“This proffer and the presence of these individuals indicated that the prosecutor anticipated that Felton’s testimony about the night of the attack could well assist the Commonwealth in a prosecution of Felton for the child abuse/neglect charge Therefore, the trial court did not err in permitting Felton to assert her Fifth Amendment right against self-incrimination.

“The second component of Palmer’s assignment of error challenges the introduction of the transcript of Felton’s preliminary hearing testimony because he claims she was not unavailable.” Palmer cites Sapp v. Commonwealth, 263 Va. 415 (2002). In Sapp, “the Supreme Court held that the trial court erred when it declared two witnesses unavailable and permitted the introduction of their prior testimony where one witness stated that he refused to testify out of fear and the other cited his fear and memory loss.

“In so holding, the Court stated, ‘Vague assertions of discomfort or generalized statements of fear or concern cannot rise to the same level of significance as evidence of specific threats.’ … We find that Sapp is distinguishable on several grounds.

“First, unlike the witnesses in Sapp, Felton asserted the Fifth Amendment as a basis for her refusal to testify. Second, … Felton’s fears were not vague or generalized. She was facing pending charges for child abuse/neglect – not the remote possibility that she might be indicted for some uncertain crime.

“In addition, there was a prosecutor from the Office of the Commonwealth’s Attorney in the courtroom present for the specific purpose of listening to her testimony, strongly suggesting that Felton’s testimony about the night of the attack could be used to incriminate her in the child abuse/neglect case. ‘The law is firmly established in Virginia that a declarant is unavailable if the declarant invokes the Fifth Amendment privilege to remain silent.’ … Because the trial court did not err in allowing Felton to plead the Fifth Amendment, Felton was unavailable to testify at Palmer’s trial and the introduction of her testimony from the preliminary hearing was not error.”

Malice

Palmer argues he should not have been convicted of aggravated malicious wounding because he acted in the heat of passion, which negates the malice element of the crime.

“Palmer claims that his passions were ignited by his argument with Felton over her alleged relationship with Scott. However, ‘[w]ords alone, no matter how insulting, are never sufficient to constitute heat of passion.’ …

“After the argument, Palmer left the apartment. When he returned an hour or two later, he had two knives, which he then used to attack and stab Felton fourteen times. Use of those deadly weapons would certainly allow the factfinder to infer malice.

“In addition, when Palmer’s and Felton’s young daughter walked into the room, Palmer showed his malicious intent when he told his daughter that he would kill Felton if his daughter left to get help.”

Affirmed.

Palmer v. Commonwealth, Record No. 1294-18-1, Nov. 26, 2019. CAV (Beales) from Virginia Beach Cir. Ct. (Croshaw). Richard C. Clark for appellant, Craig W. Stallard for appellee. VLW 019-7-217, 11 pp. Unpublished.

VLW 019-7-217

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