Opinion
Record No. 2511-00-2.
March 30, 2004.
Upon Rehearing En Banc.
Appeal from the Circuit Court of the City of Richmond, Margaret P. Spencer, Judge.
Christopher J. Collins for appellant.
Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Felton and Kelsey.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Javon Lydell Booker appealed his convictions, after a jury trial, for shooting into an occupied vehicle, malicious wounding, using a firearm in the commission of malicious wounding, and possession of a firearm by a convicted felon, in violation of Code §§ 18.2-154, 18.2-51, 18.2-53.1, and 18.2-308.2, respectively. He contended that the trial court abused its discretion by refusing to allow defense counsel to question a Commonwealth's witness about charges pending against her. A divided panel of this Court disagreed and affirmed his convictions by memorandum opinion dated January 15, 2002. We granted Booker's petition for a rehearing en banc, stayed the mandate of the panel decision, and reinstated the appeal. Upon rehearing en banc, we affirm the convictions.
I. Background
On appeal, we view the evidence, and all reasonable inferences that may be drawn therefrom, in the light most favorable to the Commonwealth, the party prevailing below. Winckler v. Commonwealth, 32 Va. App. 836, 844, 531 S.E.2d 45, 49 (2000). So viewed, the record establishes that on October 9, 1999, Antonio Winston (Antonio) and Calvin Winston (Calvin) purchased heroin from Javon Lydell Booker. Antonio and Calvin then returned to their vehicle. Booker walked to the vehicle, pulled a chrome automatic handgun from his shirt, held it through the car window to Antonio's head, and pulled the trigger. Booker ran to the rear of the car and continued to shoot, striking Antonio in the knee, and shooting Calvin several times in the back. Booker fired approximately ten shots, stopping when his gun jammed. Antonio unequivocally identified Booker as the shooter.
The evening of the shooting, Orriania Harris was standing outside her home across the street from the crime scene. She saw Booker talking to two men. Harris knew Booker because he had grown up with her son. After the two men returned to the vehicle, Harris heard shots being fired. She turned and saw Booker shooting into the rear of the vehicle.
Harris identified Booker at the preliminary hearing as the shooter and testified that she never saw anyone else shoot. At a bench conference held during Booker's trial but out of the hearing of the jury, defense counsel stated his intent to cross-examine Harris about a May 5, 2000 charge against her for possession of cocaine with the intent to distribute. He contended that the charge affected her credibility and demonstrated that she dealt drugs in competition with Booker, which provided a motive to falsify her testimony against him. Defense counsel stated: "The fact she herself and her son are drug dealers or are alleged drug dealers goes tremendously toward her credibility . . . [and] the motive for her to make statements."
The trial court rejected Booker's contention, stating "[t]he Court will not allow you to ask any questions about her pending cases." The trial court based its decision on information provided by the Commonwealth which established that a preliminary hearing on Harris's charge had not yet been held and that she had not been offered a "deal" in exchange for her testimony. Defense counsel persisted, however, asking the court if he could ask the witness "if she uses drugs?" The trial court responded that "[y]ou may ask if she was under the influence or if she used drugs that night, because it would affect her ability to observe. Other than that, no questions [on her drug use] are relevant." The trial court further stated that "the issue of competition is not before the Court."
Booker contends that the trial court erred in refusing to permit him to question Harris about the charge. He argues that: (1) the use of pending charges against a witness to establish a motive to fabricate or bias is permitted as a matter of law; (2) the defendant's right to cross-examination of the witnesses presented against him to establish bias or a motive to fabricate is "absolute"; and (3) Harris's arrest for possession with intent to distribute is relevant for general impeachment purposes and that the trial court erred in refusing his attempt to challenge her credibility. For the following reasons, we find Booker's contentions to be without merit.
II. Analysis A. Impeachment to Show Motive to Fabricate or Bias
Booker argues that the law allows the use of pending charges against a witness to establish a motive to fabricate or bias. Although this principle is correct, see, e.g., Banks v. Commonwealth, 16 Va. App. 959, 963, 434 S.E.2d 681, 683 (1993), we cannot determine whether the evidence Booker sought to elicit was admissible because he failed to make an adequate proffer of Harris's testimony.
This Court's decision in Lockhart v. Commonwealth, 34 Va. App. 329, 542 S.E.2d 1 (2001), is determinative of the issue. In Lockhart, M.B. had accused the defendant of sexual molestation. Id. at 334, 542 S.E.2d at 3. Defense counsel attempted to impeach M.B. by asking his mother at trial if M.B. fabricated stories in school in order to avoid discipline.Id. at 339, 542 S.E.2d at 5. The trial court refused to allow defense counsel to impeach M.B.'s mother. Id. On appeal, we held that we could not review the trial court's rejection of the evidence because the defendant did not proffer
the [witness'] expected response . . . [or] any other evidence from other sources that, if believed, would allow the fact finder to reasonably infer that [the witness] had a motive to falsely implicate [the defendant]. . . . "[T]he party must proffer or avouch the evidence for the record in order to preserve the ruling for appeal; otherwise, the appellate court has no basis to decide whether the evidence was admissible."
Id. at 340, 542 S.E.2d at 6 (quoting Smith v. Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992)). Moreover, we found that statements by defense counsel were insufficient to provide a basis on appeal for determining the admissibility of the testimony. Id.
In the instant case, as in Lockhart, the proffer consists of an argument by defense counsel without a proffer of "the [witness'] expected responses . . . [or] any other evidence from other sources that, if believed, would allow the fact finder to reasonably infer that [the witness] had a motive to falsely implicate [the defendant]." Id. at 340, 542 S.E.2d at 6. Booker limited his argument to enunciating his theory that Harris was a competing drug dealer who would falsely testify against him to eliminate the competitive threat he posed. In the alternative, he posited the view that the witness hoped to "strike a deal" with the Commonwealth. Although a proffer of the requested evidence may be made by, inter alia, the avowal of counsel, see Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977), here, Booker proffered no evidence that would establish either hypothesis he sought to advance other than the charge of possession of cocaine with the intent to distribute that had been lodged against the witness. Because we have no basis for ascertaining the relevance of the testimony counsel hoped to elicit, we cannot review the claim on appeal. See id.; Lockhart, 34 Va. App. at 340, 542 S.E.2d at 6.
B. Impeachment to Show Lack of Credibility
Booker further argues that Harris's arrest for possession with intent to distribute is relevant for general impeachment purposes and that the trial court erred in refusing his attempt to challenge her credibility. We find that Booker's contentions are unsupported by the law.
The appellate courts of Virginia have consistently held that a litigant's right to impeach the credibility of a witness by showing her participation in criminal conduct is limited to questions about convictions. Ramdass v. Commonwealth, 246 Va. 413, 437 S.E.2d 566 (1993), vacated on other grounds, 512 U.S. 1217 (1994); Clark v. Commonwealth, 202 Va. 787, 790, 120 S.E.2d 270, 272 (1961); Smith v. Commonwealth, 155 Va. 1111, 1121, 156 S.E. 577, 581 (1931); Newton v. Commonwealth, 29 Va. App. 433, 449, 512 S.E.2d 846, 853 (1999); Dowell v. Commonwealth, 12 Va. App. 1145, 1147, 408 S.E.2d 263, 264-65 (1991),aff'd on reh'g en banc, 14 Va. App. 58, 414 S.E.2d 440 (1992). Ignoring this settled principle, Booker alleges that the trial court violated his constitutional right of confrontation. In Ramdass, the Supreme Court rejected a similar claim:
Ramdass contends that the court erroneously restricted his right of cross-examination in refusing to permit impeachment of [adverse witnesses] by questioning their involvement in several unadjudicated crimes. It is well settled in Virginia that a litigant's right to impeach the credibility of adverse witnesses by showing their participation in criminal conduct has been confined to questions about a conviction for a felony, perjury, and a misdemeanor involving moral turpitude. This limitation upon a defendant's impeachment rights is a reasonably necessary measure to restrict the scope of a criminal trial. . . . Admission of unadjudicated crimes for purposes of general impeachment of a witness would lead to confusion in directing the jury's attention to collateral matters and away from the issues of the case.
Nevertheless, Ramdass claims that the trial court's adherence to this settled practice violated his confrontation rights under the Sixth Amendment of the United States Constitution and Article I, § 8 of the Virginia Constitution. He cites no authority to support such an expansive application of these rights, and we have found none. Accordingly, we conclude that the trial court did not err in this limitation of Ramdass's cross-examination.
246 Va. at 423-24, 437 S.E.2d at 572 (internal quotation and citations omitted). Bound by this ruling, we reject Booker's claim and affirm the decision of the trial court.
For the reasons stated in this opinion, we affirm Booker's convictions.
Affirmed.
I would hold appellant made a proffer sufficient to show his entitlement to cross-examine Orriania Harris regarding bias which may have motivated her falsely to identify appellant as the shooter. Therefore, I respectfully dissent.
As we held in Banks v. Commonwealth, 16 Va. App. 959, 434 S.E.2d 681 (1993),
The right to cross-examine prosecution witnesses to show bias or motivation to fabricate, when not abused, is absolute.
* * * * * * *
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.
Id. at 962-63, 434 S.E.2d at 683-84 (citations and internal quotation marks omitted). Evidence relating to a point, such as bias, properly at issue in the case is relevant and, therefore, admissible "if it has 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) (emphasis added); see also Charles E. Friend, The Law of Evidence in Virginia § 11-1 (5th ed. 1999 Supp. 2001). A witness' bias, like a defendant's intent, may be proved by circumstantial evidence, such as the witness' conduct and statements. Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989); see also Lane v. Commonwealth, 190 Va. 58, 75, 55 S.E.2d 450, 458 (1949) (equating bias with intent in holding admissible evidence that chief prosecution witness had filed civil suit against defendant because "a [criminal] conviction may have been thought favorable to a successful prosecution of the civil action").
The Commonwealth's theory of the case was that the offenses with which appellant was charged occurred when the victims attempted to purchase drugs from him, and one of the victims testified to that effect. The Commonwealth called Harris to testify that she saw appellant shoot into the victims' car, and it asserted in its opening statement that "Harris has nothing to gain or to lose by coming here today. She has no reason to lie to you people. And I think her testimony is probably going to be the most important testimony you'll hear today." (Emphasis added).
When the Commonwealth called Harris to the stand, appellant's counsel proffered that Harris had pending against her a charge for possessing cocaine with an intent to distribute at a location "right across the street" from where the crimes for which appellant was on trial had taken place. This incident from which Harris' charge stemmed occurred on May 5, 2000, less than seven months after the offenses for which appellant was on trial and less than four weeks before appellant's May 30, 2000 trial. Appellant's counsel expressly asserted that Harris' pending charge "goes tremendously toward" Harris' "motive to make statements against [appellant], the competition."
Further, outside the presence of the jury, appellant offered the testimony of Officer James Hannah. Hannah testified that when he executed a search warrant on Harris' residence on May 5, 2000, he observed Harris attempt to flush approximately 45 "hits of crack cocaine" down the toilet and that these observations provided the basis for the charges pending against her at the time of appellant's trial. Hannah found "no sign of personal use in the house." Appellant herself had previously testified to the jury that she did not use drugs, further supporting appellant's theory that she was a drug dealer rather than a user.
This circumstantial evidence, if admitted for the jury's consideration, would have supported the inference that Harris and appellant both sold drugs in the same neighborhood and that Harris had a motive to testify falsely against appellant in order to reduce or eliminate her competition. Appellant was not required to proffer direct testimony that appellant routinely sold drugs or that Harris actually admitted a desire to eliminate appellant as a competitor before this evidence became relevant.
The majority's reliance on the holding in Lockhart v. Commonwealth, 34 Va. App. 329, 542 S.E.2d 1 (2001), to conclude appellant's proffer was insufficient fails to place the decision in Lockhart in the proper context. In Lockhart, which involved charges of child sexual abuse, the defendant claimed the victim fabricated the allegations of abuse to explain why the defendant had banished the victim from the defendant's farm. Id. at 339, 542 S.E.2d at 5-6. The defendant sought to ask the victim's mother whether the victim had disciplinary problems at school during the time of the alleged abuse and, if so, whether the victim "would make excuses for those problems." Id. at 339, 542 S.E.2d at 5. However, the defendant did not proffer how the victim's mother would have responded to the question about whether the victim had any disciplinary problems at school. Id. at 340, 542 S.E.2d at 6. He also did not proffer evidence from other sources that, if believed, would have allowed the fact finder to conclude that the victim had disciplinary problems at school. Id.
If the victim's mother had responded that the victim had not had any disciplinary problems at school, then the defendant would have had no basis upon which to pursue that line of questioning, and the mother's testimony would not have provided a basis for impeaching the victim. Under these circumstances, the trial court's ruling would not have constituted reversible error. Because no proffer of the mother's expected answer was made in Lockhart, we were unable to determine whether reversible error might have occurred.
In appellant's case, by contrast, his proffer regarding Harris' pending charge of possession with intent to distribute and his offer of Officer Hannah's testimony regarding the circumstances surrounding that charge were more than sufficient to permit us to conclude the trial court erred in prohibiting the cross-examination at issue.
Thus, I would reverse appellant's convictions and remand for retrial.