Summary
In Deavers, we held that the trial court had erred in denying the accused permission to cross-examine an accomplice concerning whether the latter had been offered leniency in exchange for his testimony.
Summary of this case from Linwood Earl Briley v. CommonwealthOpinion
43820 Record No. 781348.
June 8, 1979
Present: All the Justices.
Denial of defendant's right to question accomplice who gave evidence for Commonwealth concerning possible leniency promised or given is harmless error when defendant's statements to police, properly admitted in evidence, conclusively establish guilt.
(1) Criminal Procedure — Evidence — Defendant's Right to Show Adverse Testimony of Accomplice Motivated by Favorable Treatment by Commonwealth.
(2) Criminal Procedure — Evidence — Exclusion of Testimony not Prejudicial.
Defendant, convicted by jury of two counts of grand larceny and one count of common-law burglary, was not allowed by the Trial Court to question an alleged accomplice to determine whether the accomplice had been promised leniency in exchange for his testimony on behalf of the Commonwealth. The Commonwealth did not object to this line of questioning, stating that it would prove that no agreement of any kind had been made in exchange for the testimony. Statements by defendant to police officers properly admitted in evidence clearly established his guilt of the crimes charged. Defendant's ground of appeal is the exclusion of his questioning of the accomplice concerning possible leniency offered or given.
1. The Trial Court should have permitted counsel for defendant to determine from the accomplice whether the accomplice had received or had been promised favorable treatment from the Commonwealth in exchange for his testimony. An accused has the right to attack the credibility of a witness by demonstrating prejudice and to show his true motive for giving adverse testimony.
2. Although the Trial Court ruled the accomplice's testimony concerning any promise or receipt of favorable treatment inadmissible (the Commonwealth not objecting to this line of questioning on the ground it would show there was no agreement for leniency), the defendant's guilt was clearly established by defendant's statements to police officers and the error complained of was harmless.
Appeal from a judgment of the Circuit Court of Warren County. Hon. Duncan C. Gibb, judge presiding.
Affirmed.
Eric E. Adamson (Michael L. Oddenino, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.
On February 14, 1975, James Ray Deavers was convicted by a jury of two counts of grand larceny and one count of common-law burglary. He escaped from custody and upon his eventual recapture was, on June 8, 1978, sentenced to confinement in the penitentiary for a term of seven years. The defendant appeals, arguing that he was denied the opportunity to question an alleged accomplice as to whether the accomplice had been promised leniency in exchange for his testimony on behalf of the Commonwealth.
The four-count indictment charged Deavers with the common-law burglary of two houses, one owned by Calvin Stride and one owned by Lawrence Rayburn, as well as grand larceny from each owner. Deavers was found guilty of all charges except the burglary of the Stride house.
On or about February 9, 1973, dwellings owned by Calvin Stride and Lawrence Rayburn, located in Warren County, Virginia, were burglarized. Among the items taken were a freezer, cabinets, assorted tools, a kitchen stove, a commode, a fireplace screen and plumbing supplies. The evidence establishes that the crimes were committed by Sam Souers, assisted by the defendant, James Ray Deavers, and Deavers' half-brother, Charles Parker. After being fully advised of his constitutional rights, Deavers made three statements detailing the part that he played in the commission of the offenses. The statements were admitted in evidence without objection. In them he claimed that Souers was the principal instigator of the larcenies, but admitted that he and Parker participated in the crimes.
The Commonwealth, in its case-in-chief, established that a number of the stolen items were found in the defendant's residence and in residences of his relatives. Additionally, it called Charles Parker as a witness, who testified as to his, Souers' and Deavers' involvement in the larcenies of the properties. Subsequently, Parker was called by the defendant who sought to determine whether Parker had been offered leniency in exchange for his testimony. Although the Commonwealth's Attorney did not object to this line of questioning, observing that the Commonwealth would "show that there was no agreement of any kind", the trial court ruled the testimony inadmissible.
It is well established that an accused has the right to attack the credibility of a witness by demonstrating prejudice, and to show his true motive for giving adverse testimony. In showing such a motive it is proper for a defendant to show that an adverse witness had received, or had been promised, favorable treatment from the Commonwealth in exchange for his testimony. Whittaker v. Commonwealth, 217 Va. 966, 234 S.E.2d 79 (1977); Davis v. Commonwealth, 215 Va. 816, 213 S.E.2d 785 (1975); Woody v. Commonwealth, 214 Va. 296, 199 S.E.2d 529 (1973); Moore v. Commonwealth, 202 Va. 667, 119 S.E.2d 324 (1961). The trial court should have permitted counsel for the defendant to determine from Parker if he had made any agreement with the Commonwealth or had been promised leniency in exchange for favorable testimony. However, it is argued by the Commonwealth, inter alia, that any error committed by the trial court in this regard was harmless error. We agree.
The statements given by Deavers to the police officers implicated himself along with Souers and Parker. He said that Souers "told me about a place up at Bentonville [the location of the Stride and Rayburn houses] he wanted to take some stuff out of. I knew the stuff was hot", and further "Sam [Souers] asked Charles [Parker] if he would keep his mouth shut about anything that happened". Deavers admitted "I knew what was going on but I did not say anything because I was afraid Sam would beat my a____". The defendant detailed how he assisted in removing the goods, and said: "I knew then for sure the stuff was hot [stolen] but I went on and put the kitchen cabinets in my house and also the fire place set." He further said that he gave Souers $25 for the refrigerator, "even though I knew it was stolen".
It is clear from the evidence in this case that the only conclusion which could have been reached by the jury was that the defendant committed the crimes of which he was convicted in the lower court. We therefore hold that the error complained of was harmless. Rozier v. Commonwealth, 219 Va. 525, 248 S.E.2d 789 (1978); Davis v. Commonwealth, supra. Affirmed.