COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys 

Argued by teleconference 

QUY THI NGUYEN, S/K/A 

 QUI THI NGUYEN 

 MEMORANDUM OPINION* BY 

v. Record No. 0432-02-4 JUDGE ROBERT J. HUMPHREYS 

MARCH 25, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Joanne F. Alper, Judge 

 Jonathan Shapiro (Law Offices of Jonathan 

Shapiro, P.C., on briefs), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

Quy Thi Nguyen appeals her conviction, after a jury trial, 

for first-degree murder and for use of a firearm in the commission 

of murder. Appellant contends the trial court erred in allowing 

the Commonwealth's expert psychologist to testify: 1) that "the 

recognized defense of 'irresistible impulse' should not be 

considered"; 2) that "[appellant's] version of events could not be 

trusted"; and 3) as to statements made to him by appellant's 

estranged husband. Appellant further argues that the trial court 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. Further, because this opinion has 

no precedential value, we recite only those facts essential to 

our holding.
erred in refusing to allow her to present testimony concerning an 

incident she had witnessed, where the victim "order[ed] a third 

person to commit an assault." For the reasons that follow, we 

affirm the judgment of the trial court. 

A. 

 Appellant failed to preserve for appeal the issues she 

raises with regard to the testimony of the Commonwealth's 

psychologist, Dr. William J. Stejskal. Indeed, appellant 

concedes that she raised no objection to the testimony at trial.

 Rule 5A:18 provides that "[n]o ruling of the trial 

court . . . will be considered as a basis for reversal unless 

the objection was stated together with the grounds therefor at 

the time of the ruling, except for good cause shown or to enable 

the Court of Appeals to attain the ends of justice." Appellant 

thus asks us to consider these issues on appeal pursuant to the 

"good cause" or "ends of justice" exceptions to Rule 5A:18, 

contending that the admission of Dr. Stejskal's testimony served 

to negate her "recognized" defense of irresistible impulse. We 

disagree and find that we are unable to consider appellant's 

assigned errors in this regard. 

 We first note that, despite appellant's claim to the 

contrary, it is clear that she raises a claim of ineffective 

assistance of trial counsel on appeal to this Court. However, 

we have long recognized that claims of ineffective assistance of 

counsel may no longer be raised on direct appeal. In fact, Code 

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§ 19.2-317.1, which allowed direct appeal of such claims under 

certain circumstances, was repealed in 1990. Therefore, we do 

not consider this issue further. 

 Moreover, it is axiomatic that the "good cause" exception 

to Rule 5A:18 relates to the reason why an objection was not 

stated at the time of the ruling. See Townes v. Commonwealth, 

234 Va. 307, 319, 362 S.E.2d 650, 656-57 (1987) (holding that 

pro se representation is not "good cause" for failing to 

object), cert. denied, 485 U.S. 971 (1988); Snurkowski v. 

Commonwealth, 2 Va. App. 532, 536, 348 S.E.2d 1, 3 (1986) 

(holding that futility of an objection is not "good cause" for 

failing to object); see also Campbell v. Commonwealth, 14 

Va. App. 988, 996, 421 S.E.2d 652, 656-57 (1992) (Barrow, J., 

concurring). On this record, we see no reason for appellant's 

failure to object which would satisfy the "good cause" exception 

to Rule 5A:18. 

 Finally, as appellant recognizes, 

[u]nder Rule 5A:18 we do not notice the 

trial errors for which no timely objection 

was made except in extraordinary situations

when necessary to enable us to attain the 

ends of justice. The laudatory purpose 

behind Rule 5A:18, and its equivalent 

Supreme Court Rule 5:25, frequently referred 

to as the contemporaneous objection rules, 

is to require that objections be promptly 

brought to the attention of the trial court 

with sufficient specificity that the alleged 

error can be dealt with and timely addressed 

and corrected when necessary. The rules 

promote orderly and efficient justice and 

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are to be strictly enforced except where the 

error has resulted in manifest 

injustice. . . . 

 [In determining] [w]hether we apply the 

bar of Rule 5A:18 or invoke the ends of 

justice exception, we must evaluate the 

nature and effect of the error to determine 

whether a clear miscarriage of justice

occurred. We must determine whether the 

error clearly had an effect upon the outcome 

of the case. The error must involve 

substantial rights. 

Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 

(1989) (emphases added). "Thus, the 'ends of justice' provision 

may be used when the record affirmatively shows that a 

miscarriage of justice has occurred, not when it merely shows 

that a miscarriage might have occurred." Mounce v. 

Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). 

 Ordinarily, in the criminal context, 

application of the ends of justice exception 

is appropriate where "[the accused] was 

convicted for conduct that was not a 

criminal offense" or "the record 

affirmatively proves that an element of the 

offense did not occur." However, some 

procedures are so crucial that a court's 

failure to adhere to them constitutes error 

that is clear, substantial and material even 

in the absence of affirmative proof of error 

in the result. 

Herring v. Herring, 33 Va. App. 281, 287, 532 S.E.2d 923, 927 

(2000) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221-22, 

487 S.E.2d 269, 272-73 (1997)). 

 Accordingly, if the record before us proved that, under no 

circumstances, could the jury have convicted appellant of the 

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crimes charged, there would be a reasonable basis for this Court 

to consider these issues, raised for the first time on appeal. 

However, the record in this case does not clearly demonstrate 

that there was no evidence, absent Stejskal's testimony, upon 

which appellant could have been convicted of the crimes charged. 

Nor does the record reflect any "material" failure on the part 

of the trial court to adhere to "crucial procedure" as it 

pertained to Dr. Stejskal's testimony. Thus, we find that the 

ends of justice, likewise, do not require that we consider these 

issues for the first time on appeal. 

B. 

 Appellant next contends that the trial court erred by 

refusing to allow her to testify that, on an occasion prior to 

the shooting, she had witnessed the victim order another 

individual to physically harm another person. We once again 

disagree. 

 Here, appellant was charged with first-degree murder. 

Therefore, the Commonwealth had the burden of proving that 

appellant killed the victim and that the killing was willful, 

deliberate, and premeditated. See Stokes v. Warden, 226 Va. 

111, 117, 306 S.E.2d 882, 885 (1983). 

 "In determining whether evidence is admissible, much must 

be left to the sound discretion of the trial court." Spencer v. 

Commonwealth, 240 Va. 78, 99, 393 S.E.2d 609, 622 (1990) 

(citation omitted)). "As a general rule, a litigant is entitled 

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to introduce all competent, material, and relevant evidence 

tending to prove or disprove any material issue raised, unless 

the evidence violates a specific rule of admissibility." Tarmac 

Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458 

S.E.2d 462, 465 (1995). "'Evidence is admissible if it is both 

relevant and material,' and it is inadmissible if it fails to 

satisfy either of these criteria." Peeples v. Commonwealth, 30 

Va. App. 626, 640-41, 519 S.E.2d 382, 389 (1999) (quoting

Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 198, 361 

S.E.2d 436, 441, 442 (1987)). "Evidence is relevant if it has 

any logical tendency, however slight, to establish a fact at 

issue in the case." Ragland v. Commonwealth, 16 Va. App. 913, 

918, 434 S.E.2d 675, 678 (1993). "Evidence is material if it 

relates to a matter properly at issue." Evans-Smith, 5 Va. App. 

at 196, 361 S.E.2d at 441. 

 Here, the trial court refused to admit appellant's 

testimony pertaining to the incident in question, stating: 

because then it gets into the whole 

collateral issue of [the other individual] 

or what else happened. 

 . . . But that's not an issue of 

interpretation of what [the victim's], 

quote, order was, and this sort of thing. 

If it was physical action by [the victim] 

directly where he was doing the fighting or 

the hurting, that's one thing. But I think 

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when you get into an order to someone else, 

that's not. 

 Indeed, 

[i]t is well settled in Virginia that where 

an accused adduces evidence that he acted in 

self-defense, evidence of specific acts is 

admissible to show the character of the 

victim for turbulence and violence, even if 

the accused is unaware of such character. 

Barnes v. Commonwealth, 214 Va. 24, 197 

S.E.2d 189 (1973); Stover v. Commonwealth, 

211 Va. 789, 180 S.E.2d 504 (1971); Randolph 

v. Commonwealth, 190 Va. 256, 56 S.E.2d 226 

(1949). We held in Jones v. Commonwealth, 

196 Va. 10, 15, 82 S.E.2d 482, 485 (1954), 

that "[t]he evidence and inferences 

deducible therefrom may be such at times as 

to justify the submission of whether or not 

the killing was in self-defense, as well as 

whether or not it was accidental." 

Jordan v. Commonwealth, 219 Va. 852, 855, 252 S.E.2d 323, 325 

(1979). 

 However, 

"[s]uch evidence is admissible only when the 

defendant has interposed a plea of 

self-defense [. . .], and when a proper 

foundation is laid by proof of some overt 

act justifying such defense [. . .]. The 

trial court should exercise a sound legal 

discretion in determining whether or not the 

proper foundation has been laid for the 

introduction of the offered testimony." 

Burford v. Commonwealth, 179 Va. 752, 767, 20 S.E.2d 509, 515 

(1942) (omissions in original) (quoting State v. Jennings, 28 

P.2d 448 (1934)). 

The "crucial issues" in a plea of 

self-defense are the accused's "state of 

mind and the circumstances as they 

reasonably appeared to [the accused] at the 

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time of the shooting." Jones v. 

Commonwealth, [217 Va. 226, 230, 228 S.E.2d 

124, 125 (1976)]. The test of self-defense 

is whether the accused "reasonably fear[ed] 

death or serious bodily harm to himself at 

the hands of his victim." McGhee [v. 

Commonwealth, 219 Va. 560, 562, 248 S.E.2d 

808, 810 (1978)]. Thus, "[i]t is not 

essential to the right of self-defense that 

the danger should in fact exist." Id. 

However, when the accused fears that a 

person intends to murder or inflict serious 

bodily injury, and there is an "'overt act 

indicative of such an intent, . . . [the 

accused may be justified in] killing [or 

injuring] the party by way of prevention.'" 

Harper v. Commonwealth, 196 Va. 723, 731, 85 

S.E.2d 249, 254 (1955) (citation omitted). 

Peeples, 30 Va. App. at 643, 519 S.E.2d at 390. 

 In the case at bar, at the time appellant sought to 

introduce the evidence of the victim's prior violent conduct, 

although appellant had claimed that she shot the victim in 

self-defense, she had not yet testified as to her version of the 

events as they pertained to the shooting. Instead, the only 

version of the events that had been proffered at that point, was 

from the perspective of the Commonwealth's witnesses, who 

testified that the victim went to appellant's apartment to 

retrieve his belongings, that he walked over to appellant's car 

to speak with her when he saw her drive into the apartment 

complex parking lot, and that he was walking away from appellant 

when she shot him in the back. Thus, at the time appellant 

sought to introduce the evidence, there had been no "sufficient 

showing" of an overt act by the victim, which would have been 

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necessary for the trial court to properly admit the excluded 

evidence. 

 Furthermore, as alluded to by the trial court, the 

"specific instance" appellant sought to introduce was not a 

specific instance of violence committed by the victim, but a 

statement, amounting to hearsay, where the victim allegedly 

ordered a third party to commit an act of violence. See

Robinson v. Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476-77 

(1999) ("[H]earsay evidence is inadmissible unless it falls 

within one of the recognized exceptions to the hearsay rule, 

. . . [and] the party attempting to introduce a hearsay 

statement has the burden of showing the statement falls within 

one of the exceptions."). 

 Moreover, appellant failed to proffer the actual statement 

and circumstances of the event, leaving the trial court with 

only the ability to surmise whether or not the "order" was 

actually what appellant purported – an order to do violence – 

and/or whether the "order" was actually carried out. 

Accordingly, on this record, we find no error in the trial 

court's refusal to admit the evidence. 

 For these reasons, we affirm the judgment of the trial 

court. 

Affirmed.

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