THE COURT OF APPEALS OF VIRGINIA
Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and
McCullough, JJ., and Millette, S.J.
E. POWELL, JUSTICE
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.
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
January 14, 2014, Jennifer Johnson ("the victim"),
was at home with her fourteen and seven-year-old
sons. 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 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.
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.
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.
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
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."
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
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 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.
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.
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."
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 ...