COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Frank and Petty 

Argued at Richmond, Virginia 

MANSOUR SALAHMAND, S/K/A 

 MANSOUR SALAHMOND 

 MEMORANDUM OPINION* BY 

v. Record No. 1745-08-4 JUDGE WILLIAM G. PETTY 

JULY 21, 2009 

COMMONWEALTH OF VIRGINIA 

 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

James H. Chamblin, Judge 

Lorie E. O’Donnell, Public Defender, for appellant. 

Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, 

Attorney General, on brief), for appellee. 

 

 On August 17, 2007, Mansour Salahmand was convicted of the malicious wounding of 

his wife in violation of Code § 18.2-51. On appeal, Salahmand argues that the trial court erred 

by considering, as substantive evidence, a copy of the warrant and criminal complaint containing 

hearsay statements made by his wife. He argued that the documents, which he asked to be 

admitted into evidence, violated his Sixth Amendment right of confrontation. In addition, 

Salahmand argues that the evidence was insufficient to prove malicious wounding beyond a 

reasonable doubt. For the following reasons, we disagree and affirm his conviction. 

I. BACKGROUND

Because the parties are fully conversant with the record in this case and this 

memorandum opinion carries no precedential value, we recite only those facts and incidents of 

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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On appeal, we view those facts and incidents in the “light most favorable” to the prevailing party 

below, the Commonwealth, Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 

(2003), and we grant to that party all fair inferences flowing therefrom. Coleman v. 

Commonwealth, 52 Va. App. 19, 21, 660 S.E.2d 687, 688 (2008). 

On October 26, 2006, Deputy Terry Daniel, Loudoun County Sheriff’s Department, went 

to the home of Salahmand and his wife, Azar Baradar Salahmand, in response to a 911 call. 

When he arrived at Salahmand’s home, the garage door was open. He entered and saw Azar 

Baradar pacing back and forth while holding her left side. Deputy Daniel noticed that she 

appeared to have a bloodstain on her blouse. Daniel testified that while he was in the garage 

talking to the victim, Salahmand “poked his head into the garage, stood there for approximately 

two minutes and then turned around and went right back inside the house.” 

Initially, Azar Baradar told Deputy Daniel that she was unhappy with her life and that she 

had stabbed herself. However, Deputy Daniel saw a “significant amount of blood spatter on the 

floor and on the counter.” The deputy also saw a watch with a broken band on the counter and 

broken necklace lying “in a puddle of blood” on the floor of the kitchen. In addition, a phone 

handset was on the floor and the cord was pulled out of the wall. 

Deputy Daniel went back into the garage to question Azar Baradar again because the 

scene was not consistent with her attempted suicide story. This time, she told Deputy Daniel that 

“her and her husband had an argument and the argument became heated and that he stabbed her 

with a knife.” She also told Deputy Daniel that there were two knives involved and they were in 

a drawer in the kitchen. After searching through the drawer, Daniel recovered two knives with 

bloodstains on them. 

Azar Baradar did not attend trial. To prove that Salahmand stabbed her, the 

Commonwealth attempted to introduce the statements she had made to Deputy Daniel. 
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Salahmand objected on the grounds that the admission of those statements violated his Sixth 

Amendment right to confrontation. The trial court stated that it was necessary for him to hear all 

of the statements and all of the evidence to determine if they were testimonial. 

Immediately after Salahmand’s cross-examination of Deputy Daniel and before the 

assistant Commonwealth’s attorney’s re-direct examination, Salahmand’s counsel offered into 

evidence the warrant and the criminal complaint prepared by Deputy Daniel. The complaint 

contained both the initial statement by Azar Baradar that she stabbed herself, and her subsequent 

statement that Salahmand stabbed her. Salahmand did not request the trial court consider the 

evidence only for a limited purpose. The trial court then asked the assistant Commonwealth’s 

attorney whether she had any objections, and she replied: “[a]s substantive evidence, absolutely 

not.” The trial court admitted the warrant and the criminal complaint as Defendant’s Exhibit #1, 

and it was received into evidence. 

After the trial court heard all of evidence and arguments from counsel, it ruled that Azar 

Baradar’s statements to Deputy Daniel were inadmissible. However, the court stated that 

because Salahmand admitted the warrant and criminal complaint without limitation, the court 

could consider the evidence contained in those documents. Therefore, viewing the warrant and 

the criminal complaint in conjunction with all of the other evidence at trial, the trial court found 

Salahmand guilty of malicious wounding.1

 Salahmand now appeals. 

1

 Salahmand’s trial counsel moved to strike the Commonwealth’s evidence; however, the 

trial judge stated: “Mr. Ghobadi, I’m afraid that you can’t make a motion to strike because you 

offered evidence . . . . You’re relying on the insufficiency of the Commonwealth’s evidence 

when you make a motion to strike. If you’ve offered your own evidence then you’re not relying 

upon that anymore.” Obviously, defense counsel can make a motion to strike regardless of what 

he does during cross-examination of the prosecution’s witnesses. After the defendant has moved 

to strike, and offers evidence on his own behalf, he cannot rely on that original motion to strike. 

Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1948). Indeed, offering 

evidence after the first motion to strike constitutes a waiver of that original motion to strike. Id. 

Rather, after the defendant puts on evidence, he must make a renewed motion to strike in order 

to preserve the issue of sufficiency of the evidence. Id.
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II. ANALYSIS

A. Due Process and Right to Confrontation 

Salahmand contends that the trial court erred in using the criminal complaint as 

substantive evidence against him because it contains hearsay statements from Azar Baradar that 

violate his Sixth Amendment right to confrontation. In addition, Salahmand argues that his due 

process rights were violated because he was denied a “fair opportunity to defend against the 

State’s accusations.” We conclude that Salahmand waived these arguments by offering the 

warrant and criminal complaint into evidence as substantive evidence without any limitation. 

The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const. amend. VI. 

In other words, the Confrontation Clause “secures the literal right to confront the witnesses at the 

time of trial . . . . [and] see[] the witness face to face, and subject[] him to the ordeal of 

cross-examination.” Magruder v. Commonwealth, 275 Va. 283, 298, 657 S.E.2d 113, 120 

(2008) (internal citations and quotation marks omitted). It ensures the reliability of the evidence 

presented because it requires the witnesses to be present and under oath, and it allows the jury to 

observe the “demeanor of the witness in making his statement.” Id. The Confrontation Clause, 

as recently interpreted by the Supreme Court of the United States, prevents the admission of 

hearsay statements that are testimonial in nature. Crawford v. Washington, 541 U.S. 36 (2004). 

The admission of nontestimonial statements does not violate the Confrontation Clause. Id. 

“This guarantee is enforced against the states through the Fourteenth Amendment.” Magruder, 

275 Va. at 298, 657 S.E.2d at 120 (citing Pointer v. Texas, 380 U.S. 400, 401 (1965). 

Like many other constitutional guarantees, the defendant’s right to confrontation can be 

waived. Id. at 300, 657 S.E.2d at 120; Bilokur v. Commonwealth, 221 Va. 467, 473, 270 S.E.2d 

747, 751 (1980). Nothing in our jurisprudence, however, requires that waiver to be an express 
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waiver; rather, the defendant’s attorney could waive that right by mere acquiesance. Bilokur, 

221 Va. at 472, 270 S.E.2d at 751 (stating that “an accused may waive his constitutional right of 

confrontation, not only by express personal consent but also by passive acquiescence in a tender 

by his attorney”). Indeed, “the defendant is bound by the acts of his lawyer-agent” regarding 

trial decisions such as “what arguments to pursue, . . . what evidentiary objections to raise, . . . 

and what agreements to conclude regarding the admission of evidence . . . . Absent a 

demonstration of ineffectiveness, counsel’s word on such matters is the last.” New York v. Hill, 

528 U.S. 110, 114-15 (2000). Therefore, the failure to object constitutes a waiver. 

A waiver can also occur “when an objection is made but counsel later takes some step 

inconsistent with the objection.” Charles. E. Friend, The Law of Evidence in Virginia 295 (6th 

ed. 2003). However, before we can say that Salahmand waived his objection to the admission of 

his wife’s out-of-court statements, “there must be some reasonable and just foundation for 

holding that there was in fact a waiver.” Whitman v. McClelland, 137 Va. 787, 801-02, 121 S.E. 

146, 150 (1923). 

“Generally, when a party unsuccessfully objects to evidence that he considers improper 

and then introduces on his own behalf evidence of the same character, he waives his earlier 

objection to the admission of that evidence.” Combs v. Norfolk & W. Ry. Co., 256 Va. 490, 

499, 507 S.E.2d 355, 360 (1998). However, neither the “mere cross examination of the witness 

nor the introduction of rebuttal evidence constitutes as waiver.” Friend, supra, at 296 (citing Va. 

Ry. & Power Co. v. Davidson’s Adm’r, 119 Va. 212, 89 S.E. 229 (1916)). It is only when the 

appellant’s use of the objectionable evidence goes beyond mere cross-examination or rebuttal, 

that his conduct provides a reasonable and just foundation for holding that there was a waiver. 

See Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 266 (1998) (stating that 

“[w]hen Jenkins’ counsel offered the document into evidence, he did not request that the 
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handwritten notation be excluded from the proffered exhibit. Thus, as the proponent of the 

discharge summary exhibit which was received in evidence, Jenkins has waived any later 

objection to its consideration by the trier of fact.”). 

 Here, Salahmand’s trial attorney objected and noted his continuing objection to every 

instance where the Commonwealth’s attorney asked and a witness attempted to testify about the 

out-of-court statements made by the victim that her husband stabbed her. However, during 

Salahmand’s cross-examination of Deputy Daniel, his trial counsel offered the warrant and 

criminal complaint into evidence. The trial court asked the assistant Commonwealth’s attorney 

if she had any objections and she responded: “[a]s substantive evidence, absolutely none your 

Honor.” Salahmand’s counsel remained silent. The trial court then marked the document as 

Defendant’s Exhibit #1 and admitted it into evidence. 

Salahmand argues that he intended to admit the complaint solely to impeach his wife by 

establishing that she had made two inconsistent statements.2

 However, Deputy Daniel, in both 

his direct testimony and during cross-examination, testified regarding Azar Baradar’s 

inconsistent statements without reference to the warrant or the complaint. It was not until 

Salahmand’s cross-examination was over, and as the assistant Commonwealth’s attorney was 

beginning her re-direct examination, that he offered the warrant and criminal complaint into 

evidence without any limitation. While Salahmand argues that the trial court considered the 

complaint as substantive evidence contrary to his intention, Salahmand did not limit the purpose 

for which he admitted the criminal complaint at the time it was admitted into evidence. 

2

 We note that “a person whose hearsay statement is admitted into evidence is subject to 

impeachment, though the declarant did not appear in court.” Friend, supra, § 4-11(a). Further, 

“the credibility of the declarant may be attacked by means of any evidence that would be 

admissible for impeachment purposes if the declarant had testified as a witness.” Id. § 4-11(e). 
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“‘The defendant, having agreed upon the action taken by the trial court, should not be 

allowed to assume an inconsistent position.’” Manns v. Commonwealth, 13 Va. App. 677, 679, 

414 S.E.2d 613, 615 (1992) (quoting Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 

784, 792 (1979), cert. denied, 444 U.S. 1049 (1980)). There is no question that, in our judicial 

system, “[n]o litigant, even a defendant in a criminal case, will be permitted to approbate and 

reprobate—to invite error . . . and then to take advantage of the situation created by his own 

wrong.” Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988) (citing Sullivan 

v. Commonwealth, 157 Va. 867, 878, 161 S.E. 297, 300 (1931)). Clearly, Salahmand’s use of 

the warrant and criminal complaint exceeds mere cross-examination and rebuttal evidence. See

Jenkins, 255 Va. at 521, 499 S.E.2d at 266. Therefore, we hold that Salahmand waived his right 

to challenge the admissibility of the criminal complaint as substantive evidence and the trial 

court did not err in admitting it into evidence. 

B. Sufficiency of the Evidence 

Salahmand argues that the evidence was insufficient to support his malicious wounding 

conviction. On appeal, we will not overturn the trial court’s judgment unless it is “plainly wrong 

or without evidence to support it.” Code § 8.01-680. “In making this assessment, we consider 

all admitted evidence, including illegally admitted evidence.” Hargraves v. Commonwealth, 37 

Va. App. 299, 312-13, 557 S.E.2d 737, 743 (2002) (emphasis added) (citing Lockhart v. Nelson, 

488 U.S. 33, 41 (1988)). 

To prove malicious wounding the Commonwealth must prove that the defendant did 

“maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, 

with the intent to maim, disfigure, disable, or kill . . . .” Code § 18.2-51. The evidence in this 

case established that Azar Baradar suffered multiple stab wounds to her abdomen, her lower 

back, and two of her fingers. When Deputy Daniel arrived at the scene, Azar Baradar was in the 
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garage and she was visibly injured. Salahmand was present in the garage when the deputy was 

attempting to question her and she responded that she had injured herself. However, Deputy 

Daniel went inside the house into the kitchen and saw blood splatter, a phone cord ripped from 

the wall, a broken necklace lying on the floor in a puddle of blood, and a broken watch. After 

Salahmand was separated from Azar Baradar, she told the deputy that Salahmand had stabbed 

her and that the knives he used were in the kitchen drawer. Deputy Daniel found the knives with 

her blood on them in the kitchen drawer. 

From this evidence, the trial court concluded that Salahmand was guilty of malicious 

wounding because he had stabbed Azar Baradar several times with steak knives in parts of her 

body that are not consistent with self-inflicted wounds; he did not offer any assistance with her 

injuries, medical or otherwise; and he watched her while she was talking to the police and did 

nothing. These circumstances, according to the trial court, are not consistent with an innocent 

person. The circumstances surrounding Azar Baradar’s injuries, and her statement, out of 

Salahmand’s presence, that Salahmand stabbed her, support the fact that Salahmand is guilty of 

malicious wounding. Accordingly, we hold that the trial court’s judgment was not plainly wrong 

or without evidence to support it. 

III. CONCLUSION

For the foregoing reasons, we affirm Salahmand’s conviction. 

Affirmed.