James Edward Johnson, s/k/a, etc. v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
JAMES EDWARD JOHNSON, S/K/A
JAMES EDWARDS JOHNSON, JR.
MEMORANDUM OPINION * BY
v. Record No. 3023-00-3 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Robert M. D. Turk, Judge
Joseph Graham Painter, Jr.; Scott Weber
(Painter Weber, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
A jury convicted James Edward Johnson of attempted rape,
forcible sodomy, and animate object penetration. On appeal, he
contends the trial court erred in excluding an overheard
statement offered to contradict a witness by prior inconsistent
statement. Finding no error, we affirm.
The thirteen-year-old victim testified the defendant
sexually assaulted her when she spent the night with a friend,
Shamika Bishop. Shamika lived with her mother (Teresa Bishop),
her mother's boyfriend (the defendant), and her brother (Chris
Bishop). On cross-examination, the defendant asked the victim
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
if she had ever made the statement to Shamika Bishop, "our
little secret." The victim denied making that statement.
Shamika testified and corroborated the victim's testimony. On
cross-examination, the defendant asked her if she had ever said,
"this is our little secret, we've got to keep it." She denied
making that statement.
The defense called Teresa Ford as a witness. She was a
friend and neighbor of the Bishops and had overheard Shamika and
the victim talking on the telephone after the incident. When
asked to repeat what she had heard, the Commonwealth objected
because it was hearsay. The defendant proffered that Ford heard
Shamika say: "it's our secret we can't tell nobody," and "well
he's out of the house now, he can't spend no more of our money."
She only heard Shamika's part of the conversation and did not
know the topic of the girls' conversation.
The trial court sustained the objection and excluded the
statements. It acknowledged that the defendant could impeach
the witness, "but it has to with something relevant." Noting
that no evidence indicated the girls were talking about the
incident, the trial court ruled the defendant needed to
establish "some link that they were actually talking about this
particular incident." Defense counsel conceded he had not laid
a good foundation and responded, "taken by themselves . . . [the
statements] may not mean anything and I agree with your Honor as
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to relevance." Shortly thereafter, the defendant excused Ford
as a witness.
The statement that Ford overheard was offered to impeach
Shamika by showing she made a statement inconsistent with her
testimony at trial. When the defendant asked Shamika if she had
ever said "our little secret," he raised the issue for the first
time on cross-examination. Whether he could use extrinsic
evidence to contradict her denial depended on whether the
question elicited a collateral fact.
"No question respecting any fact irrelevant
to the issue can be put to a witness on
cross-examination for the mere purpose of
impeaching his credit by contradicting him.
And if any such question be inadvertently
put and answered the answer of the witness
will be conclusive . . . . he cannot be
asked as to any collateral independent fact
merely with a view to contradict him
afterwards by calling another witness."
Seilheimer v. Melville, 224 Va. 323, 326-27, 295 S.E.2d 896, 898
(1982) (quoting Allen v. Commonwealth, 122 Va. 834, 842, 94 S.E.
783, 785-86 (1918)).
If a question calls for a collateral fact, the
cross-examiner must take the witness' answer because
"[e]xtrinsic evidence of collateral statements is not
admissible." A Guide to Evidence in Virginia Rule 613(a)(ii),
63 (2001); Charles E. Friend, The Law of Evidence in Virginia
§ 4-3(f), 122-23 (5th ed. 1999). The rule, known as the
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"collateral facts" rule, is purely a matter of relevance.
Seilheimer, 224 Va. at 327, 295 S.E.2d at 898.
Whether Shamika had ever uttered the words "our little
secret" bore no relation to the issues at trial. It was no more
relevant than whether she had ever recited the alphabet. The
fact that Teresa Ford heard Shamika make the statement "our
little secret" had no purpose other than for contradiction. At
the time the trial court ruled on the objection, the fact was
irrelevant. When the trial court made its ruling, it clearly
indicated the statement could become relevant if other evidence
established the topic of the girls' conversation. The defendant
acquiesced in the ruling. 1
Later in the trial, Chris Bishop testified that he
overheard a telephone conversation between the victim and
Shamika. The defendant concedes he did not overhear the same
conversation Teresa Ford overheard. Chris Bishop testified the
victim said, "Jimmy didn't do nothing to her and that was her
and Shamika's secret." That testimony impeached the victim by a
prior inconsistent statement.
1
The defendant maintains on brief that the statement Ford
overheard provided exculpatory evidence by bolstering his theory
that Shamika and the victim fabricated their testimony against
the defendant. Disregarding the fact the testimony was hearsay
if offered as substantive evidence, it was not admissible as
substantive evidence because it was not relevant when proffered.
Boggs v. Commonwealth, 199 Va. 478, 486, 100 S.E.2d 766, 772
(1957) (irrelevant evidence is not admissible).
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Chris Bishop's testimony also served to give essential
definition to the phrase "our little secret" when uttered by the
two girls. That distinctive definition gave meaning to what
Teresa Ford overheard and connected it to the issues at trial.
However, the defendant never suggested that the trial court
reconsider its earlier ruling and never recalled Teresa Ford to
tender her testimony in light of Chris Bishop's subsequent
testimony.
The defendant called Teresa Bishop, who also overheard
conversations between the victim and Shamika. Teresa Bishop
testified that she believed the girls' allegations against the
defendant until she heard two conversations between the victim
and Shamika. 2 The defendant never proffered the content of the
conversation. As with Chris Bishop's testimony, the defendant
never suggested that the conversations Teresa Bishop overheard
supplied facts that made Teresa Ford's earlier testimony
relevant.
When the defendant offered the testimony of Teresa Ford, he
offered extrinsic evidence of a collateral fact. The trial
court did not err in excluding evidence not relevant to the
issues at trial. The admissibility of evidence is left to the
2
In his reply brief, the defendant contends for the first
time that the conversation Teresa Bishop overheard impeached the
girls' credibility. We do not consider this argument for the
first time on appeal. Rule 5A:18.
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sound discretion of the trial court, and its "ruling will not be
disturbed on appeal absent an abuse of discretion." Coe v.
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)
(citation omitted). Accordingly, we affirm the convictions.
Affirmed.
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Elder, J., concurring in the result.
I would hold that the defendant acquiesced in the trial
court's refusal to allow Teresa Ford to testify about two
statements she overheard Shamika Bishop make to the teenaged
victim. Thus, I would hold that the defendant waived any
objection to the exclusion of this testimony, and I would affirm
the convictions without reaching the merits of the appeal.
The defendant's theory of the case was that he did not
commit the charged acts and that the victim and Shamika lied
about his actions. Defense counsel asserted in his opening
statement the evidence would establish that the victim and
Shamika talked about the lie as "their little secret[]" and
discussed "[getting the defendant] out of [the Bishops'
residence]" when Shamika's mother, Teresa Bishop, "threw [him]
out" following the victim's report of sexual abuse.
When defense counsel cross-examined the victim at trial,
she denied that Shamika made the statement to her over the
telephone that "this is our little secret." Shamika likewise
denied telling the victim over the telephone that "this is our
little secret, we've got to keep it." Shamika also denied
telling the victim, "[W]ell, we got [the defendant] out of the
house, he's not going to take any [of] my Mom's money any more."
When defense counsel attempted to establish through the
testimony of Teresa Ford, the Bishops' neighbor, that Shamika
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had, in fact, made these statements to the victim, the
Commonwealth objected, and the following exchange took place
outside the presence of the jury:
THE COURT: I guess the concern I've
got[, defense counsel,] is even if [Shamika]
made those statements[,] what were those
statements in reference to, I mean there's
been no testimony that [Shamika and the
victim] were discussing this particular
incident at the time that [Teresa Ford]
overheard, and I don't know whether [Ford]
can state that or not because obviously I
don't think she heard [the victim] on the
other end of the phone.
[DEFENSE COUNSEL]: I understand
. . . . I have done a poor job establishing
[a] foundation . . . .
. . . .
THE COURT: . . . [Y]ou can impeach
. . . , but it has to be with something
relevant[,] and I don't think that you can
establish the relevancy unless there is some
link that they were actually discussing this
particular incident at the time those two
statements were made.
[DEFENSE COUNSEL]: I can ask [Ford]
the questions[,] Your Honor, maybe I can
establish, I think I can establish
relevance.
Defense counsel proffered through examination of Ford that
Ford heard Shamika say, during a telephone conversation with the
victim, "[it's] our secret[,] we can't tell nobody," and
"well[,] he's out of our house now, he can't spend no more of
our money." Defense counsel then inquired if "[Ford] hear[d]
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anything in that conversation that led [her] to believe [the
victim and Shamika] were talking about their allegations
[against the defendant]," saying "I'm trying to see if there was
a link that why . . . these statements stand out in her mind, I
mean taken by themselves they may not mean anything and I agree
with Your Honor as to relevance." (Emphasis added). Thus,
defense counsel agreed, whether correctly or erroneously, that
Ford's testimony about Shamika's statements was irrelevant and
inadmissible unless Ford could provide specific testimony
connecting the statements to the victim's allegations of sexual
abuse.
The court then questioned Ford about whether she could
"hear [the victim] on the other line" during that conversation
or whether she could "hear what [Shamika and the victim] were
talking about." Ford indicated that she heard only the
statements Shamika had made, to which Ford already had
testified. Defense counsel then said, "I think I have a witness
that can," referring to a witness who could testify about the
victim's responses to Shamika's statements in order to give them
the context he and the trial court believed was necessary to
establish their relevance. The trial court then sustained the
Commonwealth's objection to the admissibility of Ford's
testimony without opposition from defense counsel, who said he
would "not go into those statements." Thus, assuming without
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deciding that the ruling was erroneous, defendant's counsel
acquiesced in that ruling. See, e.g., Spruill v. Commonwealth,
221 Va. 475, 478-79, 271 S.E.2d 419, 421 (1980) (holding
defendant "acquiesced in the court's [ruling that a specific
clinical psychologist was not qualified to give the opinion
proffered] by responding, 'Very well' to the court's statement
and by saying he would not 'pursue' the issue but would call the
psychiatrist as a witness" in lieu of the psychologist).
The defendant subsequently offered testimony from Shamika's
brother, Chris Bishop, about a telephone conversation he
overheard between Shamika and the victim. In that conversation,
the victim told Shamika "that [the defendant] didn't do nothing
to her and that was her and Shamika's secret." Chris testified
that he was listening on an extension and heard the statements
and responses of both girls. The evidence established that this
conversation could not have been the one Ford overheard, because
it took place on a telephone at the Bishop residence, whereas
the conversation Ford overheard took place on a telephone at
Ford's residence. Thus, the defendant did not attempt to use
Chris's testimony to provide a foundation for Ford's previously
excluded testimony.
The defendant also offered testimony from Shamika's mother,
Teresa Bishop. She testified that she believed Shamika's and
the victim's allegations "until [she] heard a conversation on
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the telephone," and she subsequently testified that she
overheard her daughter's conversation "on two different
occasions." Defense counsel did not attempt to elicit any
further details about the two conversations, such as what
Shamika said or to whom Shamika was speaking. Defense counsel
also did not attempt to use Teresa Bishop's testimony to provide
a foundation for Ford's previously excluded testimony.
The defendant offered no additional testimony about
Shamika's and the victim's conversations and made no additional
attempt to present to the jury Ford's testimony about Shamika's
statements.
For these reasons, I would hold that the defendant
acquiesced in the trial court's ruling excluding Ford's
testimony about Shamika's statements, and I would affirm the
defendant's convictions without reaching the merits of the
appeal. Therefore, I concur in the result.
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Benton, J., dissenting.
The evidence proved that James Johnson lived in the
residence of Teresa Bishop, his romantic friend, and that
Bishop's daughter was the friend of the teenage girl who made
the complaint of sexual abuse. On the night in question, the
teenager stayed overnight at Bishop's residence and slept in the
living room with Bishop's daughter on a sofa that was converted
into a bed. The morning after the alleged incident, Bishop
awoke both girls. Bishop testified the girls "were just fine,
talking, laughing in the car" when she took them to school that
morning. They made no complaint to her.
On direct examination, the teenager testified that after
Johnson was arrested, she had an in-person conversation with
Bishop's daughter. On cross-examination, the teenager admitted
she also had telephone conversations "maybe two times" with
Bishop's daughter after Johnson had been arrested. The teenager
denied discussing with Bishop's daughter in those telephone
conversations that "this is our little secret."
Bishop's daughter testified on cross-examination that she
talked to the teenager every day by telephone for eight months
after Johnson's arrest. She denied saying to the teenager in a
telephone conversation that "this is our little secret."
Although she admitted talking to the teenager from the telephone
in Teresa Ford's residence when her brother and Ford were
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present, she denied saying to the teenager that they had gotten
Johnson out of her mother's house and that Johnson would not
take any more of her mother's money.
Johnson's theory of the case was that the girls concocted
their story of sexual abuse. He testified that he had not
touched either the teenager or her friend in any sexual way. He
acknowledged passing through the living room where they slept
when he came home at 3:00 a.m. He testified, however, that the
passage in the living room of the mobile home is so narrow that
he likely bumped the converted sofa bed as he passed through the
room. In her testimony, the teenager confirmed that when the
sofa opens to a bed the passage is "about two and a half feet."
Johnson's witness, Teresa Ford, resides next to Bishop's
residence. She testified that Bishop's daughter often came to
her residence to receive telephone calls from the teenager or to
make telephone calls to the teenager. Ford testified that on
one occasion, when the teenager called and spoke to Bishop's
daughter, she heard Bishop's daughter's conversation. The
prosecutor objected when Ford sought to testify that Bishop's
daughter said in the telephone conversation, "its our secret we
can't tell nobody" and "he's out of our house now he can't spend
no more of our money." The prosecutor argued that the testimony
was hearsay. Johnson contended, however, that he was entitled
to impeach the teenager and Bishop's daughter by Ford's
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testimony. The trial judge sustained the prosecutor's
objection.
The Commonwealth argued at trial that the testimony was
hearsay. Now on appeal, the Commonwealth abandons that claim
and argues, for the first time, only that Johnson failed to lay
a proper foundation for the testimony. 3 Because the Commonwealth
made no objection at trial that the proper foundation was not
laid, we are limited to the issue presented at trial and ruled
on by the judge, i.e., whether the evidence was hearsay. See
Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963);
Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,
313-14 (1992).
Notwithstanding the prosecutor's failure to assert this
issue at trial, the evidence clearly established that the
foundation was sufficient and proper. The Commonwealth
acknowledges the following rule applies to this case:
3
The Commonwealth also does not contend that Johnson's
attorney acquiesced in the trial judge's refusal to allow Ford
to testify about the statements she overheard. Indeed, the
record establishes that when Johnson's attorney said that he
"agree[d] with [the judge] as to relevance," he was making a
proffer of Ford's testimony. He made that statement as a
response to the prosecutor's further objection that Ford's
proffered testimony should be limited because "that calls for
speculation." After that exchange, the trial judge questioned
Ford and then ruled that "[b]ased upon the Commonwealth's
objection I will sustain the objection." The trial judge
certainly did not consider Johnson's attorney's response to the
prosecutor's objection to be an acquiescence in a comment the
judge made before he heard the proffer. In view of the manner
in which the record developed, we have no basis to preclude this
issue by invoking Rule 5A:18.
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It is fundamental to the right of
cross-examination that a witness who is not
a party to the case on trial may be
impeached by prior statements made by the
witness which are inconsistent with his
present testimony, provided a foundation is
first laid by calling his attention to the
statement and then questioning him about it
before it is introduced in evidence.
Pugh v. Commonwealth, 233 Va. 369, 374, 355 S.E.2d 591, 594
(1987). When testimony is offered for this purpose, it is not
hearsay. Id. at 374, 355 S.E.2d at 595.
The rejected testimony of Ford was offered for the purpose
of impeachment. Johnson's attorney questioned both girls and
gave them an opportunity to admit or deny the statements.
Clearly, Ford's testimony was admissible to impeach the
testimony of both girls so as to assist the jury in reaching a
determination founded on truth.
The majority opinion rules, however, that Ford's testimony
impeaches the witness by a collateral fact. This issue, which
also was not raised by the Commonwealth at trial or on this
appeal, is not properly before us. Id.Moreover, Ford's testimony does not raise a collateral
fact.
A fact is wholly collateral to the main
issue if the fact cannot be used in evidence
for any purpose other than for
contradiction. "Evidence of collateral
facts, from which no fair inferences can be
drawn tending to throw light upon the
particular fact under investigation, is
properly excluded for the reason that such
evidence tends to draw the minds of the jury
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away from the point in issue, to excite
prejudice and mislead them." . . .
Spurlin, Administratrix v. Richardson, 203
Va. 984, 990, 128 S.E.2d 273, 278 (1962).
Conversely, if the evidence tends, even
slightly, to throw light upon the main fact
in issue, it is not collateral, but
probative. Every fact, however remote or
insignificant, that tends to establish the
probability or improbability of a fact in
issue, is admissible. Stamper v.
Commonwealth, 220 Va. 260, 269, 257 S.E.2d
808, 815 (1979). See also Railway Company
v. Golladay, 164 Va. 292, 309, 180 S.E. 400,
407 (1935). As Professor Friend points out,
the "collateral facts" rule is purely a
question of relevancy. C. Friend, The Law
of Evidence in Virginia, § 137 (1977). See
Hemming v. Hutchinson, 221 Va. 1143, 1146,
277 S.E.2d 230, 233 (1981).
Seilheimer v. Melville, 224 Va. 323, 327, 295 S.E.2d 896, 898
(1982).
Johnson's theory is that the girls fabricated their
testimony to cause him to be removed from Bishop's residence.
On direct examination by the prosecutor, the teenager implied
she had limited contact with Bishop's daughter after Johnson's
arrest. The questions posed to the teenager and Bishop's
daughter were probative of fabrication and, thus, cannot be
excluded under the doctrine of collateral facts. Ford's
testimony that Bishop's daughter told the teenager that "its our
secret we can't tell nobody" and "he's out of our house now, he
can't spend no more of our money" clearly is not collateral to
the issue in the case. The exposure of fabrication and
collusion by witnesses is designed to "assist the finder of fact
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in its quest to ascertain the truth." Motley v. Tarmac Am.,
Inc., 258 Va. 98, 102, 516 S.E.2d 7, 9 (1999). Proof that two
witnesses colluded to lie about the facts of a case is always
germane. "There is no gainsaying that arriving at the truth is
a fundamental goal of our legal system." United States v.
Havens, 446 U.S. 620, 626 (1980).
The Commonwealth further argues that in any event, the
exclusion of Ford's testimony was harmless error. It points to
the testimony of Johnson's witness, Chris Bishop, who is
Bishop's minor son. He was on the telephone when the teenager
and Bishop's daughter talked, and he heard their conversation.
He testified the teenager said to Bishop's daughter that Johnson
"didn't do nothing to her and that it was [the teenager's] and
[Bishop's daughter's] secret."
Non-constitutional error is harmless only "[w]hen it
plainly appears from the record and the evidence given at the
trial" that the error did not affect the jury's sentence. Code
§ 8.01-678.
But if one cannot say, with fair assurance,
after pondering all that happened without
stripping the erroneous action from the
whole, that the judgment was not
substantially swayed by the error, it is
impossible to conclude that substantial
rights were not affected. . . . If so, or
if one is left in grave doubt, the
conviction cannot stand.
Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32
(2001).
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The erroneous exclusion of evidence raises concerns about
the jury's truth finding function. We have said that the
admission of "[o]ther evidence of a disputed fact, standing
alone, does not establish that an error is harmless." Hooker v.
Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345 (1992).
Ford's testimony, if believed by the jury, tended to impeach the
testimony of both girls. Although the jury apparently
considered and rejected the testimony of Chris Bishop, we cannot
say that the jury would have rejected Ford's testimony. Ford's
testimony was less susceptible to being viewed, as Bishop's
son's might have been, as subject to the influence of Bishop,
who was Johnson's romantic friend. Moreover, her testimony was
qualitatively different and more significant than the evidence
that was admitted. Ford's testimony intrinsically establishes
both impeachment and a motive bearing on the impeached
testimony. Error is not harmless when "the disputed testimony
may well have affected the jury's decision." Cartera v.
Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978).
I would hold that the trial judge erred in sustaining the
prosecutor's objection that the evidence was hearsay.
Accordingly, I would reverse the convictions and remand for a
new trial.
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