COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Huff and Athey Argued at Norfolk, Virginia

LARRY DORNELL PALMER OPINION BY v. Record No. 1294

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- 1 JUDGE RANDOLPH A. BEALES NOVEMBER 26, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Glen n R. Croshaw , Judge
Richard C. Clark, Senior Assistant Public Defender , for appellant. Craig W . Stallard , Assistant Attorney General ( Mark R. Herring, Attorney General, on brief), for appellee.
Appellant Larry Dornell Palmer was convicted in a bench trial of aggravated malicious wounding

. On appeal , he argues that the trial court erred when it permitted the victim, Antoinette Felton, to invoke the Fifth Amendm en t’s protections against self

- incrimination and
when it thereby admitted into evidence the transcript of her preliminary hearing testimony. He also argues that the trial court erred in finding the evidence sufficient to convict him of aggravated maliciou s wounding.
I. B ACKGROUND 1 On May 1, 2018, Palmer was tried in a bench trial in the Circuit Court of the City of Virginia Beach. Palmer was charged with one count of malicious wounding, one count of abduction, and one count of aggravated malicio us wounding. Before trial, the court granted the

1 “I n accordance with established principles of appellate review, we state the facts in the light most favorable to the Commonwealth, the prevailing party in the trial court. ” Riner v. Commonwealth , 268 Va. 296, 303 (2004)

. PUBLISHED- 2

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Commonwealth’s motion to nolle prosequi the malicious wounding charge, and the trial proceeded on the remaining charges

. The Commonwealth called Antoinette Felton, the victim and Palmer’s wife, as its first
witness. Before taking the stand, Felton stated, “Judge, I plead the Fifth. I plead the Fifth.” Despite her declaration, Felton took the stand and was sworn in as a wi tness. Because of her marriage to Palmer , the trial court granted the Commonwealth’s motion for Felton to be declared
an adverse witness

. In response to questioning by the attorney for the Commonwealth , Felton
introduced herself and testified that she ha d been married to Palmer for a year. When asked to direct her attention to the date of the incident, Felton repeatedly stated, “I plead the Fifth.” The prosecutor then stated:

Well, Judge, I would love for her to answer my questions; but I don’t know if I in good faith really can say that she doesn’ t have an opportunity to invoke that right, I will tell the court, for a number of different reasons. I would just like to complete the record. This individual, Mrs. Felton

-- she does have pending felony ch arges in Virginia Beach for child abuse, slash, neglect. Those are pending with Ms. Sadler, who is present in the courtroom. Ms. Cunningha m is also present from the City Attorney’s office. They are both here to observe he r testimony today. I also think it’ s possible t hat based on her testimony here today, it c ould give rise to other charges given that she has testified previously; so I don ’ t kno w if I can really object to her pleading the Fifth Amendment at this point. 2 Palmer’s attorney objected to Felton pleading the Fifth if the purpose was “a way t o hav e her declared unavailable as a witness and try to use the transcript from the preliminary hearing .” The trial judge overruled the objection. He stated, “It is clear to me that she’s i n legal peril. Both existing and potentially, her testimony might in voke other legal peril; and, accordingly, I

2 The prosecutor also proffered that there were other potential legal issues that might arise for Felton if she were to testify, including potential “misdemeanor charges for filing a false police report.”- 3

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think that’s perfectly appropriate; so I am going to recognize t hat the witness has invoked the
Fifth Amendment of the U.S. C onstitution. ”
Aft er Felton was excused from the courtroom , the Commonwealth asked that she be declared unavailable to testify based on her in vocation of the Fifth Amendment. Palmer’s attorney objected , arguing that Felton was not “unavailable” and that she should not be p ermitted
to take the Fifth because Felton’s child abuse /neglect charges were unrelated to the facts surrounding Palmer’s attack on Felton. The trial court overruled the objection and deemed
Felton unavailable to testify

. The Commonwealth then sought to introduce the transcript of Felton’s testimony from Palmer’s preliminary hearing based on Felton’s unavailability to testify at trial . Palmer’s counsel again objected, relying on Sapp v. Commonwealth , 263 Va. 415 (2002), which he argued stood for the prop osition that “where a person is making a generalized statement that they want to take
the Fifth but there has been no determination if she is reall y in any kind of danger,” transcript s of prior testimony cannot be introduced. The trial court overruled the objection, finding that Felton
was “not expressing vagu e notions of discomfort or some sort of r eluctance” and admitted the transcript

. The transcript fr om the preliminary hearing sho wed that Felton tes tified that o n the evening of March 6 , 2017 or the early morning of March 7, 2017, she and Palmer got into an argument in which Palmer accused her of having an affair with a man named Keith Scott . She
testified that Scott was in the apartment earlier that day and that he had a gun with him wh ile present although he never displayed it. Felton admitted to drinking during the evening but
deni ed being intoxicated. Felton testified that after their argument, Palmer left the apartment for an hour or two. Whe n he returned, he kicked down the door, and she could smell alcohol on his breath

. She testified- 4

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that he pinned her down and cut her fourteen times. She also testified that he was crying during
the attack. She stated that, at one point when she “was cut and screaming , ” their young daughter walked in and begged Palmer not to kill or hurt her mother. Felton testified that Palmer told their daughter that , if she left to get help, he would kill Felton.
Felton testified that Palmer eventually stopped attac king her. She stated, “When he seen
that it was blood everywhere , I think he got scared and ran out and just left me there bleeding. ”
After the incident, Felton was unable to walk for three weeks , and she had scarring as a res ult of her injuries.
After the transcript of Felton’s testimony was admitted, the Commonwealth introduced
additional trial witnesses. Alyse Tolbert

- Quinonts, a neighbor of Palmer and Felton , testified that on March 7, 2017, she heard a knock on her door. She opened it to find Fel ton “on the floor in the hallway” where she was “crunched in a ball and crying and bleeding .” Tolbert

- Quinonts
stated that Felton “looked like she was cut

. ” She called 9

- 1

- 1 for help.
Jared Smolin ski, a forensic s pecialist, testified that he arrived at Felton’s and Palmer’s residence at 5:01 a.m. on March 7, 2017. He stated that he collected two knives “at about the tree line right off the road,” which was “several hundred yards” from the apartment building.
Phot ographs of the knives, the apartment building, the apartment’s interior, the victim, and the victim’s clothing

– all photographed by Smolinsk i

– were admitted into evidence. Felton’s
medical records from the night of the attack were also admitted into evi dence.
Master Police Of

ficer Scott J. Conklin, an officer of the canine unit of the Virginia Beach Police Department, testified that as he was traveling to the scene of the crime, he heard a description of the suspect on the radio. Conk l i n stated that , when he arrived at the scene, his police canine was able to “locate a track” which eventually led them to Palmer, who was then- 5

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taken into custody. Conklin also testified that he and his canine found the two knives that were
lat er photographed by Smolinsk i. After the Commonwealth rested, Palmer’s counsel moved to strike the evidence, in part because he claimed that the evidence showed that Palmer’s actions were triggered by the argument he had with Felton about her allegedly having an affair with Scott a nd by Scott ’s being in their apartment. Palmer’s counsel argued that this evidence, coupled with the testimony that Palmer was crying when he committed the attack, showed that the wounding was committed in the heat of passion and not with malice. The tri al court denied the motion to strike , and Palmer’s attorney declined to put on evidence. Palmer then renewed his motion to strike

. After hearing additional argument, the trial court granted the motion to strike the abduction charge but found Palmer guilt y of aggravated malicious wounding.
II. A NALYSIS Felton’ s Fifth Amendment P lea In his first assignment of error, Palmer argues , “ T he tria l court erred in allowing Antoinette Felton, the victim in the case, to plead the Fifth Amendment and refuse to testify at trial and erred in allowing the Commonwealth to introduce the transcript of her prior sworn testimony from the preliminary hearing in place of live testimony at trial.” With respect to the first component of Palmer’s assignment of error, he 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 to the United States Constitution provides, “ No person

. . . shall be compelled in any criminal case to be a witness against himself.” 3 This constitutional “privilege protects against real dangers [of prosecution] , not remote and speculative possibilities.” N. Am.

3 The Virginia Constitution also provides this protection. Va. Const., art. 1, § 8

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Mortg. Inv’ rs v. Pomponio , 219 Va. 914, 919 (1979) (quoting Zicarel li v. New Jersey State
Comm’ n of Investigation , 406 U.S. 472, 92 (1972) )

. A witness’ bare assertion that an answer
will incriminate him is insufficient to sustain the privilege. Hoffman v. United States , 341 U.S. 479, 486 (1951). Rather, “ [i] t is for the court to say wh ether his silence is justified.” Id. ; see also Cunningham v. Commonwealth , 2 Va. App. 358, 362 (1986) ( “ The question whether the privilege is properly invoked is one for the trial court.” ).

To sustain the privilege , it need only be evident from the implications of the question, in th e setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the clai m
“ must be governed as much by his personal perception of the peculiarities of the case as by t he facts actually in evidence.”
Hoffman , 341 U.S. at 486

- 87. We will not reverse the decision to allow a witness to invoke the
Fifth Amendment unless it is “ ‘ perfectly clear , from a careful consideration of all the circumstances in the case, that the witness is m istaken, and that the answer(s) cannot possibly have such tendency’ to incriminate.” Id. at 488 (quoting Temple v. Commonwealth , 75 Va. 892, 898 (1881 ) (emphasis in original ) )

. In this case, the Commonwealth proffered that Felton had pending charg es against her for felony child abuse /neglect . Because the charges were already pending, they cert ainly represented “real dangers, not remote and speculative possibilities .” See N. Am. Mortg. Inv’ rs , 219 Va. at 919 (quoting Zicarelli , 406 U.S. at 478 ). 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 prosecuto r anticipated that Felton’s testimony about the night of the attack c ould well assist the
Commonwealth in a prosecution of Felton for the child abuse /neglect charge. Furthermore,- 7

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g iving the required deference to the trial judge’s “ personal perception of t he peculiarities of the case,” we certainly cannot say that it is “ perfectly clear” that Felton’s Fifth Amendment claim
was mistaken and that her testimony could not possibly have a tendency to incriminate her. See
Hoffman , 341 U.S. at 486

- 88. 4 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

. He argues that “[w]ithout a legitimate reason to invoke the privilege, the facts in this case are
similar to the facts in Sapp v. Commonwealth .” In Sapp v. Commonwealth , 263 Va. 415, 424 (2002) , the Supreme Court held that the tria l court erred when it declared two witnesses

unav ailable 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

4 Allowing a witness to make a blanket assertion of the privi lege is generally not p ermitted

. Cunningham v. Commonwealth , 2 Va. App. 358, 361 (1986 ). Instead, “[o] nce a witness asserts his fifth amendment right, some investigat ive questioning must be allowed.” Id.

“ It does not necessarily follow, however, that the failure of the trial court to follow such a course in this case constituted reversible error.” Worrells v. Commonwealth , 212 Va. 270, 272 (1971) (fin d ing no error where the defense attorney did not proffer to the trial court the specific questions he intended to pose to the witness). While there may have been some questions which Felton could have answered beyond her name and relat ionship with Palmer that would not have called for an incriminating answer, appellant did not seek to perform any “investigative questioning. ” Instead, h e argued that nothing about Felton’s testimony was incriminating

. Because it is conceivable that some thing s about the nature of Felton’s turbulent relationship with Palmer could have assisted the attorney for the Commonwealth with the prosecution of Felton for the pending ch ild abuse / neglect charges, p ermi tting Felton to take the Fifth Amendment was in keeping with the principle “that the guarantee against testimonial compulsion must be liberally construed .” In re Grand Jury Proceedings , 562 F.2d 334, 335 (5th Cir. 1977) (h olding that the witness, who was “nationally reputed to be a leader of organized crime” could invoke the Fifth Amendment although he made no in camera showing of his specific fears of incrimination and the prosecutors disavowed their belief that he had tak en criminal action relating to the case). In this situation, requiring Felton to say more would require her “ to prove the hazard in the sense in which a claim is usually requi red to be established in court” and “compel[] [her] to surrender the very protection which the privilege is designed to guarantee .” Hoffman , 341 U.S. at 486.- 8

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Court stated, “ Vague assertions of discomfort or generalized s tatements of fear or concern cannot rise to the same level of significance as evidence of specific threats. ” Id. at 425. Palmer
contends that Felton’s unsupported plea against self

- incrimination is similar to the “ vague assertions of discomfort and generalized statements of fear ” made by the witnesses in Sapp

. 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, as
discussed supra , Felton’s fears were not vague or generalized . She was facing pending charges
for child abuse / neglect

– not the remote possibil ity that she might be indicted for some uncertain crime. In addition, there was a prosecutor from the Office of the Commo nwealth’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 c ould be used to incriminate her in the child
abuse / neglect case.

“ T he law is firmly established in Virginia that a declarant is unavailable if the declarant invokes the Fifth Amendment privilege to remain silent. ” Boney v. Commonwealth , 1 6 Va. App. 638, 643 (1993) ; see also Lilly v. Commonwealth , 255 Va. 558, 573 (1998), rev’d on other grounds sub nom. Lilly v. Virginia , 527 U.S. 116 (1999)

. 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. 5

Sufficiency of the Evidence for Agg ravated Malicious Wounding In his second assignment of error, Palmer argues the evidence was insufficient to support his conviction for aggravated malicious wounding

. He contends that the evidence shows he acted in the heat of passion when he wounded Felt on, negating the malice element necessary for

5 Palmer does not , on appeal, challenge the admissibility of the transcript of Felton’s preliminary hearing testimony for any reason other than the determination that Fel ton was unavailable to testify at trial

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a malicious wounding conviction. 6 He argues that he and Felton were fighting over her alleged
affair with Scott and that he did not have time for his “passions to cool as only an hour or two had passed since t he initial argument.” He also claims that Felton’s testimony about how Palmer was crying during the attack is evidence that it was committed in the heat of passion. When considering the sufficiency of the evidence on appeal, “a reviewing court does not
‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Crowder v. Commonwealth , 41 Va. App. 658, 663 (2003) (quoting Jackson v. Virginia , 443 U.S. 307, 318

- 19 (1979)). “Viewing the evidence in the l ight most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,” Riner v.
Commonwealth , 268 Va. 296, 330 (2004), “[w]e must instead ask whether ‘ any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt, ’” Crowder , 41 Va. App. at 663 (quoting Kelly v. Commonwealth , 41 Va. App. 250, 257 (2003) ( en banc )). “This familiar standard gives full play to the re sponsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” Jackson , 443 U.S. at 319. “Whether or not an accused acted with malice is gener ally a question of fact and may be proved by circumstantial evidence.” Canipe v. Commonwealth , 25 Va. App. 629, 642 (1997).

“ Implied malice may be inferred from ‘conduct likely to cause death or great bodily harm, wilfully or purposefully undertaken.’” Id. (quoting Essex v. Commonwealth , 228 Va. 273, 281 (1984)). Malice may also “ be inferred ‘from the deliberate use of a deadly weapon.’” Doss v.

6 Code § 18.2

- 51.2(A) provides in pertinent part: “If any person maliciously . . . stabs . . . any other person . . . with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.”- 10

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Commonwealth , 23 Va. App. 679, 686 (1996) (quoting Perricllia v. Commonwealth , 229 Va. 85, 91 (1985)).
Alt hough Palmer argues he was acting in the heat of passion , the record in this case is replete with evidence that Palmer acted with malic e. Palmer claims that his passions were ignited by his argument with Felton over her alleged relationship with Scot t. H owever, “ [w] ords
alone , no matter how insulting, are never sufficient to constitute heat of passion

. ”
Rhodes v. Commonwealth , 41 Va. App. 195, 201 (2003)

. 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. U se of tho se deadly weapons would certainly allow the factfinder to infer malice. In addition, when Palmer’s and Felton’s young daughter wal ked 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. Given the totality of this evidence, we certainly cannot say that no rational factfinder could have found that Palmer acted with the requisite malice to support his conviction for aggravated malicious wounding.
III. C ONCLUSION The trial court did not err in permitting Fel ton to invoke the Fifth Amendm ent where it was proffered that Felton had charges pending against her for felony child abuse /neglect and
where individuals involved in possibly prosecuting her on those charges were present in the courtroom for the purpose of observing her testimony. Under these circumstances, and allocating the trial judge the deference required by the proper standard of review, we cannot say that it was “ perfectly clear ” that Felton’s testimony about the event cou ld not possibly have
incrim inated her. Moreover, because the trial court did not err in permitting Felton to plead the Fifth Amendment, it also did not err in deeming her unavailable to testify at trial and , consequently, in admitting the transcript of her testimony from the preliminary hearing.- 11

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T he trial court also did not err in finding the evidence sufficient to convict Palmer of aggravated malicious wounding. After Palmer and Felton had an argument, Palmer left the apartment and return ed an hour o r two later armed with two knive s which he used to stab Felton fourteen times, injuring her to the point that she was unable to walk for three weeks. In addition to using deadly weapons in the attack, from which use the trial court could infer malice, Palm er also demonstrated his malicious intent when he told the couple’s young daughter that he would
kill Felton if his daughter sought help for her mother . Given the totality of this evidence, we certainly cannot say that no rational factfinder could have fo und the necessary malice to convict Palmer of aggravated malicious wounding. For all of these reasons, we affirm the trial court’s conviction of Palmer.
Affirmed

.