Welsh v. Commonwealth

78 Va.App. 287

890 S.E.2d 845

Brian Kuang-Ming WELSH v. COMMONWEALTH of Virginia

Record No. 0860-21-4

Court of Appeals of Virginia, Fredericksburg.

August 15, 2023

Meghan Shapiro, Senior Assistant Public Defender (Indigent Defense Commission, on briefs), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Beales, O'Brien and Athey

OPINION BY JUDGE RANDOLPH A. BEALES

Following a jury trial, Brian Kuang-Ming Welsh was convicted of two counts of first-degree murder and two counts of using a firearm in the commission of a felony for killing Rishi Manwani and Rishi's mother, Mala Manwani, in the Manwanis’ home on January 29, 2018. On appeal, Welsh argues that the trial court erred by admitting the testimony of the Commonwealth's expert witness in firearm and toolmark identification, and he also argues that the trial court erred by limiting his cross-examination of that expert witness. Welsh then argues that the trial court erred by excluding the testimony of Welsh's own expert witness. Next, Welsh argues that his constitutional and statutory speedy trial rights were violated. Finally, Welsh contends that the evidence was insufficient to uphold his two convictions for first-degree murder and his two convictions for using a firearm in the commission of a felony. ¹

I. BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, [as] the prevailing party at trial." Scott v. Commonwealth , 292 Va. 380, 381, 789 S.E.2d 608 (2016). In doing so, the Supreme Court has stated that we must "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755 (1980) (quoting Wright v. Commonwealth , 196 Va. 132, 137, 82 S.E.2d 603 (1954) ).

Between July 2017 and January 2018, Brian Kuang-Ming Welsh spent over fifteen thousand dollars of his family's savings on drugs that he purchased from Rishi Manwani. On January 23, 2018, Welsh's financial situation worsened when he was fired from his job due to "attendance issues and performance issues." Welsh reacted so poorly to his termination that the human resources director from his former employer called the police to conduct a welfare check on Welsh. The human resources director told Welsh that she was worried about him, to which Welsh responded, "You should be worried about me." Welsh waited more than a week to tell his wife that he had been fired from his job.

On the morning of January 29, 2018, Welsh met Rishi Manwani and Rishi's long-time friend C.R. ² at the Manwanis’ home. C.R. testified that Rishi referred to Welsh as his "dumb-ass friend" and that Rishi was talking down to Welsh throughout their time together that morning. The three men then drove to the bank, with Rishi and Welsh riding together and C.R. driving separately. While they waited for the bank to open, Rishi walked into a convenience store to purchase coffee for Welsh and himself. The store's surveillance footage shows Rishi wearing a black hat, a black jacket, and black fingerless gloves at 9:54 a.m. C.R. then went inside the bank as soon as it opened at 10:00 a.m., while Welsh waited inside the car. During a police interview, Welsh stated that he noticed that Rishi had "at least three grand" in Rishi's wallet.

Welsh and Rishi then returned to the Manwanis’ home while C.R. left and went elsewhere. Welsh later told the police that he and Rishi exchanged money and that he then went straight to his mother-in-law's home. At 10:31 a.m., Mala Manwani, who was working from home, sent an email to her coworkers using her home computer, but she did not respond to emails for the rest of that day or the following days. Welsh told the police in an interview that he left the Manwanis’ home between 10:20 a.m. and 10:30 a.m. At 10:57 a.m. and 10:58 a.m., Welsh made two outgoing phone calls near Welsh's home. After going home, Welsh then drove to his mother-in-law's home to pick up his children. At 11:10 a.m., Welsh spoke with a job recruiter over the phone who wanted to send Welsh's application materials to an employer.

Welsh then texted his brother, Michael Welsh ("Michael"), at 12:40 p.m., stating, "Call me when you can." Nine minutes later, Welsh texted Rishi about a potential job opportunity for Rishi that Welsh allegedly learned about from the recruiter. Welsh never contacted Rishi again—either by phone call or text message—after sending this last message. Welsh eventually called his brother Michael and told Michael that "he wanted [him] to pick up a handgun that belonged to [their] father." Later that same evening, Michael came to Welsh's home to pick up a Browning Buck Mark .22 caliber pistol. Michael testified that Welsh wanted to get rid of the firearm "because his wife Amy didn't feel comfortable with guns in the house."

The next day, January 30, 2018, Welsh visited his friend K.M., who also regularly bought drugs from Rishi. K.M. testified that Welsh called her in a panic and that Welsh insisted on visiting her on very short notice. Welsh said he was concerned about Rishi's safety, and he asked K.M. if she "knew anybody that would hurt Rishi." Welsh claimed that he tried to call Rishi but said that it appeared Rishi's phones were turned off. Welsh then deleted the call log on his cell phone for January 29-30, 2018, but call records from the cellular service provider show that Welsh never actually called Rishi on either day.

On January 31, 2018, the Loudoun County police entered the Manwanis’ home to conduct a welfare check on Mala Manwani because her coworkers reported that she had not shown up for work and that no one had heard from her for the last two days. When the police entered the home, they found Mala Manwani dead on the floor near the front door with four gunshot wounds in the back of her head. The police went downstairs to the Manwanis’ basement, where Rishi lived, and they found Rishi lying dead in an unfinished portion of the basement. ³ Rishi was still wearing the same black jacket, black hat, and black fingerless gloves that he wore to the convenience store and the bank two days before. An examination of Rishi's body showed that he was shot seven times in the head and once in the leg. The police then saw "pieces of paper that appeared to be owe sheets" around Rishi's body and Rishi's empty wallet on his chest. They also found numerous .22 caliber GemTech shell casings scattered near both Rishi's and Mala's bodies.

The police interviewed Welsh on a number of occasions prior to his arrest. On February 8, 2018, the police searched Welsh's home and found "an assault-type rifle" and a nine-millimeter handgun. In Welsh's and his wife's bedroom, the police found a significant amount of ammunition. The police also found a pack of GemTech .22 caliber subsonic ammunition. The police also saw gun cleaning supplies and various tools that could be used to work on firearms.

Shortly after the police searched Welsh's home, Welsh spoke with his brother Michael and directed Michael to give the Buck Mark .22 caliber pistol to their father because their father actually owned the firearm. Michael delivered the Buck Mark .22 caliber pistol to his parents. In the meantime, Welsh was arrested and taken into custody. While in jail, Welsh spoke on the phone with his father, and Welsh directed his father to "get rid of the soda can." Welsh's father responded by saying, "Yeah, I did. I threw it out. I took it apart and threw it out." The police later retrieved the Buck Mark .22 caliber pistol from Welsh's parents, and later testing showed Welsh's DNA on the firearm's magazine. While the police were searching the home of Welsh's parents, they found an ammunition can locked in a gun safe that contained discarded gun barrels inside of the can. None of the gun barrels inside the ammunition can matched the barrel of Welsh's Buck Mark .22 caliber pistol.

Welsh was initially released from jail when the Commonwealth moved to nolle prosequi his charges, but the Commonwealth then brought the same charges against Welsh on October 24, 2019, after forensic examiner Cara McCarthy ("McCarthy") examined Welsh's Buck Mark .22 caliber pistol using firearm identification testing. McCarthy also examined the GemTech shell casings found at the Manwani residence and observed the microscopic markings left on those discarded shell casings. Through her examination of the Buck Mark .22 caliber pistol and the discarded shell casings, McCarthy was able to determine with "a very high level of certainty" that Welsh's Buck Mark .22 caliber pistol was the firearm that was used to kill the Manwanis.

As trial approached, the Commonwealth indicated that Cara McCarthy would testify as an expert witness in firearm and toolmark identification. Welsh moved to exclude McCarthy's testimony at a pretrial hearing and argued that her methodology was not sound. At the pretrial hearing, McCarthy explained how her identification methodology followed the procedures dictated by the Association of Firearm and Toolmark Examiners ("AFTE"). The AFTE's firearm and toolmark methodology involves a trained examiner viewing the microscopic "individual characteristics" that a firearm leaves on a shell casing after the casing is ejected from the gun's firing chamber. These individual characteristics are unique to that specific firearm and often differentiate that specific firearm from other firearms from the same class. In addition, McCarthy explained how one specific firearm can also leave a particular mark on a shell casing when the firing pin of the firearm strikes the shell casing.

At the same hearing, Cara McCarthy also testified that she has extensive experience in firearm and toolmark...