Larry Dornell Palmer v. Commonwealth of Virginia, 835 S.E.2d 80

Palmer tried in a bench trial on charges including aggravated malicious wounding and abduction (malicious wounding nolle prossed); court convicted Palmer of aggravated malicious wounding and dismissed abduction.
Victim and wife Antoinette Felton initially announced she would "plead the Fifth," was sworn, and repeatedly refused to answer about the incident.
Commonwealth proffered Felton had pending felony child abuse/neglect charges and that prosecutors were present to observe her testimony.
Trial court declared Felton an adverse witness, allowed her to invoke the Fifth, deemed her unavailable, and admitted her preliminary-hearing transcript.
Evidence (from the transcript and other witnesses) showed Palmer left and returned with two knives, stabbed Felton 14 times, threatened to kill her if their child sought help, knives were recovered, and Felton suffered serious injuries.
On appeal Palmer argued (1) the court erred in permitting Felton to invoke the Fifth and admitting her preliminary-hearing testimony, and (2) the evidence was insufficient because the attack was committed in the heat of passion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the victim could invoke the Fifth and be declared "unavailable," permitting admission of her preliminary-hearing transcript	Palmer: Court failed to probe the basis for her claim; her assertion was a bare, generalized refusal like in Sapp, so she was not properly unavailable	Commonwealth: Felton faced pending felony charges and prosecutors were present; her testimony could incriminate her so Fifth was legitimately invoked	Court: Affirmed — Fifth invocation was justified given pending charges and prosecutors' presence; transcript admissible because witness was unavailable
Whether evidence was sufficient to support aggravated malicious wounding (vs. heat of passion)	Palmer: Attack grew from an earlier argument about an alleged affair; only an hour or two passed and Palmer was crying, so heat of passion negates malice	Commonwealth: Malice can be inferred from deliberate use of deadly weapons, 14 stab wounds, threats to kill, and conduct likely to cause great bodily harm	Court: Affirmed conviction — evidence (knives, multiple stab wounds, threat to kill) supports inference of malice; no reasonable factfinder compelled to find heat of passion

Hoffman v. United States, 341 U.S. 479 (U.S. 1951) (court must assess whether silence is justified; bare assertion insufficient)
Sapp v. Commonwealth, 263 Va. 415 (Va. 2002) (vague fears or generalized statements of discomfort do not suffice to establish unavailability)
Boney v. Commonwealth, 16 Va. App. 638 (Va. Ct. App. 1993) (declaring that invoking Fifth makes declarant unavailable)
Lilly v. Commonwealth, 255 Va. 558 (Va. 1998) (discussing unavailability and use of prior testimony)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of the evidence)
Canipe v. Commonwealth, 25 Va. App. 629 (Va. Ct. App. 1997) (malice may be inferred from conduct likely to cause death or great bodily harm)
Doss v. Commonwealth, 23 Va. App. 679 (Va. Ct. App. 1996) (malice may be inferred from deliberate use of a deadly weapon)