Michael Anthony Starr, etc. v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
MICHAEL ANTHONY STARR, A/K/A MICHAEL SAUCERE,
A/K/A MICHAEL SAUCIER, A/K/A KEITH SHEPPARDSON,
A/K/A JUNO IRVING
MEMORANDUM OPINION * BY
v. Record No. 2294-93-2 JUDGE LARRY G. ELDER
AUGUST 15, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Betty Layne DesPortes (Steven D. Benjamin;
Steven D. Benjamin and Associates, on briefs),
for appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Michael Anthony Starr (appellant) appeals his convictions
for attempted robbery in violation of Code §§ 18.2-26 and 18.2-58
and two counts of use of a firearm in commission of a felony in
violation of Code § 18.2-53.1. Appellant contends that the trial
court improperly limited the scope of cross-examination of a
prosecution witness. Because the trial court committed no
reversible error, we affirm appellant's convictions.
As the parties are well-acquainted with the relevant facts,
we repeat only those facts necessary to our discussion. On
August 10, 1992, a manager of a McDonald's in Henrico County was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
shot once in the head. Minutes later, Patricia Justice was
accosted in front of her house, which was approximately one-
quarter-mile from McDonald's.
On October 20 and 22, 1993, appellant was tried before a
jury and was convicted of attempted robbery and two firearms
charges stemming from these incidents. George Bond and Alfred
Robinson testified for the prosecution and implicated appellant
in the incidents. Bond provided many of the details supporting
appellant's convictions, including the whereabouts on the night
in question of himself, appellant, and Robinson; the clothing
they wore; the weapons they carried; and the crimes they
committed.
Appellant wished to cross-examine Robinson on aspects
relating to his flight from the jurisdiction after he had been
released on bond in an unrelated grand larceny to which he pled
guilty. Appellant theorized that Robinson agreed to testify in
appellant's trial to gain release from jail and flee; that
Robinson was aware that his version of the McDonald's events were
untrue; and that Robinson's flight constituted a consciousness of
guilt. The trial court prevented appellant from establishing
specific facts relating to Robinson's non-compliance with his
release.
Appellant also asked the court for permission to cross-
examine Robinson on certain issues tending to show bias.
Appellant theorized that Robinson hoped to gain leniency in his
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sentencing on the grand larceny charge and a separate show-cause
hearing on a ten-year suspended sentence, after he testified
favorably for the prosecution in appellant's case. Appellant
tried to introduce Robinson's presentence report, which contained
details of the grand larceny crime and the evidence of possible
flight. However, the trial court prevented appellant from asking
Robinson details concerning the grand larceny conviction and did
not allow the presentence report to be introduced into evidence,
ruling that any details contained within the plea agreement were
irrelevant and collateral.
Robinson admitted on cross-examination that the Commonwealth
offered him concessions in exchange for his testimony in
appellant's case. Robinson, whose testimony at trial generally
corroborated Bond's testimony, also acknowledged five felony
convictions.
We hold that the trial court did not err in limiting
appellant's cross-examination of Robinson. We are guided by
certain well-accepted principles.
Cross-examination of prosecution witnesses is
fundamental to the truth-finding process and is an
absolute right guaranteed to an accused by the
confrontation clause of the sixth amendment. . . .
Subject to such reasonable limitations as the trial
court may impose, a party has an absolute right to
cross-examine his opponent's witness on a matter
relevant to the case . . . .
Maynard v. Commonwealth, 11 Va. App. 437, 444, 399 S.E.2d 635,
639-40 (1990)(en banc)(citations omitted); see Whittaker v.
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Commonwealth, 217 Va. 966, 967, 234 S.E.2d 79, 79 (1977)(trial
court erred in ruling that defendant could not cross-examine
prosecution witness about lenient sentences witness received in
exchange for his testimony at defendant's trial, where witness
was the only one who directly implicated defendant).
While an inquiry into bias is always relevant, a "trial
court has discretion to limit the scope of cross-examination
which is for the purpose of establishing bias." Norfolk & W. Ry.
v. Sonney, 236 Va. 482, 488, 374 S.E.2d 71, 74 (1988). As the
United States Supreme Court has stated:
It does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial judge
from imposing any limits on defense counsel's inquiry
into the potential bias of a prosecution witness. On
the contrary, trial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on
concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only
marginally relevant. And as we observed . . . "the
Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent,
the defense might wish." Delaware v. Fensterer, 474
U.S. 15, 120 (1985)(per curiam).
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986); see Scott v.
Commonwealth, 18 Va. App. 692, 694, 446 S.E.2d 619, 620
(1994)(stating that the liberties of a cross-examiner to show a
witness' bias are not unlimited); Williams v. Commonwealth, 4 Va.
App. 53, 77-78, 354 S.E.2d 79, 93 (1987)(stating that a trial
court "'may exercise discretion to see that the right of cross-
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examination is not abused once the right to cross-examine has
been fairly and substantially exercised.'")(citation omitted).
Appellant was permitted to cross-examine Robinson concerning
his past felony convictions for crimes involving lying, cheating,
and stealing. Appellant was also allowed to cross-examine
Robinson regarding the outstanding grand larceny conviction for
which he had not yet been sentenced. During extensive
questioning, Robinson specifically admitted that he had been
granted bond and released from jail while awaiting sentencing on
that charge, and that he was testifying in exchange for the
Commonwealth recommending a twelve-month sentence on that charge.
Furthermore, Robinson conceded that he was charged in the
attempted robbery of McDonald's and that his trial on that charge
had been continued. Finally, appellant elicited from Robinson
the fact that a show-cause hearing had not yet been held to
determine whether Robinson's ten-year suspended sentence would be
revoked.
In light of these facts, this case can be distinguished from
other cases, such as Whittaker, where the defendant's right to
show a witness' bias was abused. In Whittaker there was only one
prosecution witness whose testimony directly implicated
defendant, whereas in this case, at least two prosecution
witnesses provided credible evidence that implicated appellant in
the crimes with which he was charged. Furthermore, in Whittaker,
the defense was prohibited from cross-examining the prosecution
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witness on any aspect of the lenient sentences he received in
exchange for his testimony in defendant's trial. In this case,
appellant cross-examined Robinson at length about various "deals"
that had been struck between Robinson and the Commonwealth in
exchange for Robinson's testimony.
As we have explained, the trial court's decision to exclude
cumulative evidence is entitled on review to a presumption of
correctness. Harrison v. Commonwealth, 244 Va. 576, 585, 423
S.E.2d 160, 165 (1992). Adhering to this standard of review, we
believe that the trial court set reasonable limitations on
appellant's right to question Robinson, while still protecting
appellant's right to confront Robinson and explore his
credibility and bias. Given the extent to which Robinson's
credibility was impeached, "it is doubtful that additional
evidence in this regard would have made a difference in the
jury's opinion of his credibility." Fitzgerald v. Bass, 6 Va.
App. 38, 55, 366 S.E.2d 615, 625 (1988), cert. denied, 493 U.S.
945 (1989). Allowing the introduction of further evidence
detailing specific aspects of Robinson's presentence report would
have been repetitive and marginally relevant at best.
Furthermore, the trial court did not err in refusing to
admit evidence that allegedly showed Robinson's flight, from
which appellant hoped the jury would conclude that Robinson knew
his version of the crimes lacked credibility and knew that he was
"more guilty" than appellant. Appellant's theories as to
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Robinson's alleged flight and its impact on his testimony were
irrelevant and speculative, and the trial court did not abuse its
discretion in excluding certain evidence to support these
theories. Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d
838, 842 (1988)("The admissibility of evidence is within the
broad discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion.").
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
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BENTON, J., dissenting.
"[A] primary interest secured by [the Sixth Amendment to the
Constitution] is the right of cross-examination." Douglas v.
Alabama, 380 U.S. 415, 418 (1965). Emphasizing the primacy of
that interest, the Supreme Court of the United States has stated
that the denial of the right to conduct a proper cross-
examination to develop a witness' bias "'would be constitutional
error of the first magnitude.'" Smith v. Illinois, 390 U.S. 129,
131 (1968) (citation omitted). "The very integrity of the
judicial system and public confidence in the system depend on
full disclosure of all the facts, within the framework of the
rules of evidence." United States v. Nixon, 418 U.S. 683, 709
(1974).
Invoking the Constitution of Virginia and statutory law, the
Supreme Court of Virginia has also recognized that "[o]ne of the
most zealously guarded rights in the administration of justice is
that of cross-examining an adversary's witnesses." Moore v.
Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961). The
Court so zealously guards that right because "[o]ne purpose of
cross-examination is to show that a witness is biased and his
testimony is unreliable because it is induced by considerations
of self-interest." Barker v. Commonwealth, 230 Va. 370, 376, 337
S.E.2d 729, 733 (1985).
The witness whom the trial judge refused to allow the
defendant to fully cross-examine at the trial of this case had
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admitted his own guilt in the offenses for which the defendant
had been charged and was assisting the Commonwealth in its
prosecution. The trial judge refused to allow the defendant to
cross-examine the confessed accomplice regarding the accomplice's
flight from prosecution and a pending criminal charge that had
been held in abeyance while the accomplice cooperated in the
defendant's prosecution. That ruling was error.
The principle is well established that in exploring the
depths of a witness' self-interest, "the cross-examiner is not
only permitted to delve into the witness' story to test the
witness' perception and memory, but the cross-examiner has
traditionally been allowed to impeach, i.e., discredit, the
witness." Davis v. Alaska, 415 U.S. 308, 316 (1974). Moreover,
because a testifying accomplice is exposed to great temptation to
curry favor, the examination of that witness' testimony is
generally of critical importance in a criminal trial.
Recognizing the danger of such testimony, the Supreme Court has
stated that "[a]ny evidence is admissible which tends to affect
the credibility of accomplices or the weight of their testimony
by showing what influences, if any, were brought to bear upon
them." Woody v. Commonwealth, 214 Va. 296, 297-98, 199 S.E.2d
529, 531 (1973).
In order to give effect to the principle that "the exposure
of a witness' motivation in testifying is a proper and important
function of the constitutionally protected right of cross-
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examination," Davis, 415 U.S. at 316-17, a trial judge may not
limit the right of defense counsel to cross-examine an accomplice
unless the record clearly establishes that counsel has fully
exercised the right to cross-examine and has begun to abuse the
right.
It is only after the right of cross-
examination has been substantially and fairly
exercised that the allowance of further
cross-examination becomes discretionary with
the court. The right, when not abused, is an
absolute right and not a mere privilege of a
party against whom a witness testifies.
Moore, 202 Va. at 669, 119 S.E.2d at 327. Moreover, the rule is
well established that "[d]efense counsel should be afforded great
latitude in cross-examining accomplices testifying against a
defendant." Woody, 214 Va. at 98, 199 S.E.2d at 531.
The trial judge's ruling that these issues were collateral
and irrelevant was plainly wrong. An accomplice's conduct for
which the prosecution has shown leniency is always relevant.
Hewitt v. Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114
(1984). Bias may always be shown by facts that prove that an
accomplice had "a motive for favoring the prosecution in his
testimony." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
"The bias of a witness . . . is not a collateral matter . . .
[and] is always a relevant subject of inquiry." Henson v.
Commonwealth, 165 Va. 821, 825-26, 183 S.E. 435, 437 (1936).
Indeed, "a defendant is entitled to show that testimony of a
prosecution witness was motivated by an expectation of leniency
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in a future trial." Whittaker v. Commonwealth, 217 Va. 966, 968,
234 S.E.2d 79, 81 (1977).
The defendant was entitled to establish the details of the
inducements in order "to reveal to the jury the full weight of
any pressures brought to bear on [the accomplice], at the time he
testified, which might motivate him to depart from the truth."
Hewitt, 226 Va. at 623, 311 S.E.2d at 114. Defense counsel's
attempt to do so was not cumulative but rather was an effort to
cause the accomplice "to admit the complete details of the
inducement." Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429
S.E.2d 881, 884 (1993). The refusal to permit that line of
inquiry on cross-examination was error. Id.
We have a long line of established precedent to emphasize
the principle that the jury is the sole judge of the credibility
of the witnesses. E.g., Mitchell v. Commonwealth, 141 Va. 541,
558, 127 S.E. 368, 374 (1925); Brooks v. Commonwealth, 15 Va.
App. 407, 414, 424 S.E.2d 566, 571 (1992); Estes v. Commonwealth,
8 Va. App. 520, 524, 382 S.E.2d 491, 493 (1989). When the trial
judge refused to allow defense counsel to fully cross-examine the
witness to test his bias and self interest, the jury was deprived
of the ability to fully and fairly discharge its function as the
finder of fact. See Andrews v. C. & O. Ry., 184 Va. 951, 957, 37
S.E.2d 29, 31-32 (1946). That ruling was not based upon any
showing of abusive cross-examination. Because the limitation on
cross-examination was improperly invoked, the trial judge
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undermined the defendant's constitutional right to cross-
examination and subverted the proper functioning of the
adversarial process.
For these reasons, I would reverse the conviction and remand
for a new trial. I dissent.
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