John Johnson, a/k/a John Junior Johnson v. Commonwealth ( 2006 )


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  •                                COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Fitzpatrick, Judge McClanahan and Senior Judge Willis
    Argued at Richmond, Virginia
    JOHN JOHNSON, A/K/A
    JOHN JUNIOR JOHNSON
    MEMORANDUM OPINION* BY
    v.     Record No. 2017-04-2                                     JUDGE JERE M.H. WILLIS, JR.
    MARCH 7, 2006
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
    William R. Shelton, Judge Designate
    Gail Starling Marshall for appellant.
    Richard B. Smith, Senior Assistant Attorney General (Judith
    Williams Jagdmann, Attorney General, on brief), for
    appellee.
    On appeal from his conviction of four counts of distributing cocaine and two counts of
    distributing cocaine, second or subsequent offense, in violation of Code § 18.2-248, three counts of
    distribution of cocaine within 1,000 feet of school property in violation of Code § 18.2-255.2, and
    one count of possession of cocaine with intent to distribute within 1,000 feet of school property in
    violation of Code § 18.2-255.2, John Johnson, a/k/a John Junior Johnson, contends the trial court
    erred (1) in prohibiting him from thoroughly cross-examining the Commonwealth’s cooperating
    witness, and (2) in admitting hearsay evidence. We agree. We reverse Johnson’s convictions and
    remand.1
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    Johnson was also charged with possession of cocaine in violation of Code § 18.2-250.
    He pleaded guilty and was convicted on that charge. His petition for appeal and our order
    granting the appeal embraced that conviction. However, because the issues raised on this appeal
    are not cognizable with respect to a conviction based on a guilty plea, we dismiss the appeal of
    Background
    Steven Owens, who had been convicted of numerous felonies and of misdemeanors
    involving lying, cheating, or stealing, worked as a confidential informant for the Farmville Police
    Department and the Prince Edward County Sheriff’s Department. Owens testified that he did so
    “[i]n the hopes to reduce the time for [his] pending charges,” which were fourth and fifth offenses of
    driving while under the influence of alcohol. He testified that he had received no promises or
    agreements concerning those charges.
    Owens testified that he purchased cocaine from Johnson on six occasions between July 24
    and August 18, 2003. During each transaction, he wore an audio transmitter, and during some
    transactions, he also wore a video recorder. Officer Chris Fishburne of the Farmville Police
    Department testified that law enforcement officers could not maintain constant visual surveillance
    of Owens during the transactions, but that the transmitter enabled them to maintain audio
    surveillance.
    On cross-examination, Johnson sought to ask Owens about other pending criminal
    investigations “that [Owens] may not have been charged with that he would be working with the
    police in order to get a lesser sentence.” The trial court ruled that Johnson could ask Owens about
    the number of his prior felony convictions and his misdemeanor convictions for lying, cheating, and
    stealing, but not about pending matters. The trial court noted that Owens had stated that “his
    involvement in this was to help himself.”
    The Commonwealth twice asked Officer Fishburne whether Owens had indicated a specific
    address or location where several of the transactions had occurred. These questions related to the
    charges involving offenses occurring within 1,000 feet of school property. It had been arranged that
    that conviction as improvidently granted. A guilty plea waives all objections to
    non-jurisdictional defects. Peyton v. King, 
    210 Va. 194
    , 196-97, 
    169 S.E.2d 569
    , 571 (1969);
    Terry v. Commonwealth, 
    30 Va. App. 192
    , 197, 
    516 S.E.2d 233
    , 236 (1999) (en banc).
    -2-
    during the transactions, Owens would speak observations identifying the locations. Fishburne’s
    answers were recitals of what he heard Owens say over the audio transmitter, and were not based on
    his own observations. Johnson objected to this evidence as hearsay. The trial court overruled the
    objections and allowed the testimony.
    Analysis
    I.
    The Commonwealth’s case depended almost totally on Owens’ testimony. Johnson sought
    to show that Owens was seeking to curry favor with the Commonwealth and thus had a bias that
    impeached his credibility. The trial court ruled that Johnson could not impeach Owens by a
    showing of criminal conduct, but could base impeachment only on criminal convictions. This was
    error.
    Where a defendant seeks to cross-examine a witness
    to impeach [the] witness’ veracity, cross-examination . . . is limited
    to prior felony convictions and convictions for misdemeanors
    involving moral turpitude. However, it is error to apply the
    principles governing cross-examination for purposes of
    impeaching a witness’ veracity to limit cross-examination designed
    to demonstrate a witness’ bias or motive to testify.
    Scott v. Commonwealth, 
    25 Va. App. 36
    , 41, 
    486 S.E.2d 120
    , 122 (1997) (citations omitted). “An
    accused has a right to cross-examine prosecution witnesses to show bias or motivation and that
    right, when not abused, is absolute. The right emanates from the constitutional right to confront
    one’s accusers.” Brown v. Commonwealth, 
    246 Va. 460
    , 463-64, 
    437 S.E.2d 563
    , 564-65 (1993).
    Evidence of specific acts of misconduct is generally not
    admissible in Virginia to impeach a witness’ credibility. However,
    where the evidence . . . is relevant to show that a witness is biased
    or has a motive to fabricate, it is not collateral and should be
    admitted. [A]ttempting to introduce evidence of prior misconduct,
    for which there has been no criminal conviction, to impeach a
    witness’ general character for truthfulness differs from attempting
    to introduce such evidence to show that a witness is biased or
    motivated by self-interest in a particular case.
    -3-
    Banks v. Commonwealth, 
    16 Va. App. 959
    , 962-63, 
    434 S.E.2d 681
    , 683-84 (1993) (citations and
    internal quotation marks omitted).
    Johnson sought “to lay the predicate for an inference that the testimony of the prosecution
    witness was biased and unreliable because induced by considerations of self-interest.” Whittaker v.
    Commonwealth, 
    217 Va. 966
    , 967, 
    234 S.E.2d 79
    , 81 (1977). Owens admitted on direct
    examination that he hoped his work with law enforcement would reduce the sentences for his
    pending DUI charges. Johnson sought to show that Owens had an additional bias inducing
    incentive to seek leniency from the Commonwealth with respect to misconduct as yet uncharged,
    but under investigation.
    In Woody v. Commonwealth, 
    214 Va. 296
    , 299, 
    199 S.E.2d 529
    , 531-32 (1973), the
    Supreme Court of Virginia held:
    With evidence of the other crimes as a foundation, [defendant]’s
    counsel would then be entitled to question [the prosecution’s
    witnesses] as to any hope for leniency or expectation of favorable
    consideration, whether based on agreements or otherwise, . . . that
    may have prompted them to testify against [defendant].
    Although Johnson’s proposed evidence involved uncharged offenses, it related to a point
    properly at issue in the case and was relevant. Therefore, it was admissible because “it ha[d] 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). Johnson was entitled to
    cross-examine Owens in an effort to establish that his testimony was biased and motivated by a
    hope for lenience related to potential uncharged offenses. The trial court erred in denying Johnson
    this effort.
    The Commonwealth argues that Johnson failed to make a proper proffer putting this issue
    before the trial court.
    -4-
    A proper proffer takes one of three forms: (1) a unilateral avowal of counsel, if
    unchallenged; (2) a mutual stipulation of the parties; or (3) the taking of testimony of the witness
    outside the presence of the jury. Lowery v. Commonwealth, 
    9 Va. App. 304
    , 307, 
    387 S.E.2d 508
    ,
    510 (1990).
    Appellant’s counsel proffered:
    The reason I was asking that was not so much for purposes of the
    same as the number of felonies and misdemeanors. I believe there
    are two other matters that are pending that he may not have been
    charged with that he would be working with the police in order to
    get a lesser sentence.
    In Whittaker, the testimony of only one witness, an inmate, implicated the defendant as a
    participant in the charged crime. On cross-examination, the witness admitted he had numerous
    felony convictions. Defense counsel questioned the witness about the total length of the sentences
    he was serving. The trial court ruled that the evidence was immaterial, and defense counsel made
    the following proffer:
    “I would like to show a motivation for this man testifying against
    Whittaker in that on all his other convictions he has been required
    to serve one year in the penitentiary or one year incarceration, and
    that upon that the Commonwealth attorney has extended leniency
    in cases for agreeing to testify.”
    
    Whittaker, 217 Va. at 967
    , 234 S.E.2d at 80.
    On appeal, the Court ruled: “[W]e are of opinion that defense counsel’s avowal, the truth of
    which was unchallenged by the Commonwealth, constituted a proper proffer . . . .” 
    Id. at 969,
    234
    S.E.2d at 81-82.
    Johnson’s proffer was sufficient to alert the trial court that he wanted to explore Owens’
    bias. The Commonwealth did not challenge the truth of Johnson’s avowal that Owens had other
    criminal investigations pending and that his testimony might be prompted by hope of leniency or
    favorable consideration in those matters. Under the circumstances, Johnson was not required to
    -5-
    know or to proffer Owens’ answers. It was enough that he alerted the trial court that he wanted to
    pursue a permissible line of inquiry. Accordingly, his proffer was sufficient.
    We do not accept the Commonwealth’s suggestion that, by failing to properly proffer the
    excluded evidence, Johnson has failed to demonstrate the error was not harmless.
    The test for nonconstitutional harmless error is as follows:
    “If, when all is said and done, the conviction is sure that the
    error did not influence the jury, or had but slight effect, the verdict
    and the judgment should stand . . . . 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) (citation omitted).
    Owens’ testimony was indispensable to the Commonwealth’s case. Evidence impeaching
    his credibility was material, and its erroneous exclusion was not harmless.
    II.
    Johnson was convicted of two counts of distribution of cocaine within 1,000 feet of
    school property and one count of possession of cocaine with intent to distribute within 1,000 feet
    of school property. He contends the trial court erred by allowing Officer Fishburne to testify
    concerning the precise locations of two of the transactions based on information provided by
    Owens over the audio transmitter. He argues the evidence was hearsay. We agree.
    “[T]he simplest definition of hearsay [is] ‘testimony of a witness in court about
    statements made out of court[,] by another person.’” Bryant v. Commonwealth, 
    39 Va. App. 465
    , 472, 
    573 S.E.2d 332
    , 335 (2002) (quoting Charles E. Friend, The Law of Evidence in
    Virginia § 18-1 (5th ed.1999)).
    Similarly, the Supreme Court of Virginia has defined hearsay as
    “‘[a] term applied to that species of testimony given by a witness
    who relates, not what he knows personally, but what others have
    -6-
    told him, or what he has heard said by others,’” and “testimony
    which consists [of] a narration by one person of matters told him
    by another.”
    
    Id. at 472-73,
    573 S.E.2d at 335-36 (citations omitted).
    The challenged evidence was clearly hearsay. Fishburne recited out-of-court statements
    made by Owens over the audio transmitter. This testimony was admitted to prove the truth of
    Owens’ assertions as to the locations of the drug transactions, an element of the offenses.
    The Commonwealth argues that Owens’ statements were excited utterances, impelled by
    his experience of contemporaneous events. We reject this argument. The statements were not
    spontaneous, but were reasoned compliance with prior arrangements between Owens and the
    police. Accordingly, this evidence was hearsay and the trial court erred in admitting it.
    We reverse the judgment of the trial court with respect to the ten convictions embraced
    by this opinion and remand for a new trial if the Commonwealth be so advised.
    Reversed and remanded.
    -7-
    McClanahan, J., concurring.
    I concur in the result reached by the majority but write separately because I disagree with
    the majority’s reasoning that “Johnson was not required to know or to proffer Owens’ answers”
    or that it is enough for counsel to show he “wanted to pursue a permissible line of inquiry.”
    On appeal, “we must examine the substance of the anticipated testimony to determine
    whether [the right to further questioning] has been violated.” Brown v. Commonwealth, 
    246 Va. 460
    , 464-65, 
    437 S.E.2d 563
    , 565 (1993) (emphasis added); see also Williams v. Harrison, 
    255 Va. 272
    , 277, 
    497 S.E.2d 467
    , 471 (1998) (stating that the litigant’s proffer should disclose the
    “testimony he expected to elicit”); Chappell v. Virginia Elec. & Power Co., 
    250 Va. 169
    , 173,
    
    458 S.E.2d 282
    , 285 (1995) (rejecting appellate challenge due to the absence of a “proper
    showing of what the testimony might have been”). An appellate court cannot competently
    determine error – much less reversible error – without “a proper showing of what that testimony
    would have been.” Holles v. Sunrise Terrace, Inc., 
    257 Va. 131
    , 135, 
    509 S.E.2d 494
    , 497
    (1999). See also Charles E. Friend, The Law of Evidence in Virginia, § 8-6, at 302-03 (6th ed.
    2003).
    On the facts presented in this case, the proffer adequately disclosed the testimony
    expected from the witness and was clearly more than an identification of the subject matter of the
    proposed inquiry. The line of inquiry was relevant, not purely speculative or cumulative, and
    admissible. See Woody v. Commonwealth, 
    214 Va. 296
    , 299-300, 
    199 S.E.2d 529
    , 532 (1973)
    (not cumulative); Banks v. Commonwealth, 
    16 Va. App. 959
    , 963, 
    434 S.E.2d 681
    , 683 (1993)
    (relevant evidence that is not collateral should be admitted). See also Lewis v. Commonwealth,
    
    269 Va. 209
    , 214-15, 
    608 S.E.2d 907
    , 910 (2005) (assertion of relevance cannot be speculative).
    The proffer indicated that the witness, if truthful, would admit to “two other matters” on which
    the witness “would be working with the police in order to get a lesser sentence.” The proffer
    -8-
    went to bias, was based on the witness’ own testimony, and was therefore admissible. Such a
    proffer is sufficient. Durant v. Commonwealth, 
    35 Va. App. 459
    , 466, 
    546 S.E.2d 216
    , 220
    (2001).
    -9-