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Sluss v. Commonwealth

Court of Appeals of Virginia. Argued at Salem, Virginia
Jan 10, 1995
Record No. 1252-93-3 (Va. Ct. App. Jan. 10, 1995)

Opinion

Record No. 1252-93-3

Decided: January 10, 1995

FROM THE CIRCUIT COURT OF WISE COUNTY, James C. Roberson, Judge

David L. Scyphers (Johnson, Scyphers Austin, P.C., on brief), for appellant.

Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.

Present: Chief Judge Moon, Judge Coleman and Senior Judge Hodges


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Appellant, Scott Ray Sluss, was convicted of two counts of statutory rape of a child under thirteen years old. See Code Sec. 18.2-61. On appeal, he argues that six errors occurred before or at trial. We disagree and affirm the convictions.

I.

In his first alleged error, appellant contends that the Commonwealth's attorney failed to disclose exculpatory evidence as required under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, appellant argues that the prosecutor had a duty to tell defense counsel that Angelo Swann was a possible witness. The contention is based on the fact that the complaining witness told the Commonwealth's attorney before trial that Swann was present at appellant's home when the first incident occurred. During a post-trial hearing, the Commonwealth's attorney represented to the trial judge that Swann was summoned to testify before an October 1992 grand jury but that he was not asked any questions concerning the rape charges because the grand jury inquiry was limited to an unrelated contempt charge against appellant. Swann testified, however, that he testified before the grand jury in the prosecutor's presence that he was not there and had not seen the complaining witness at the appellant's house. The prosecutor denied that Swann so testified in his presence. The prosecutor represented to the trial court that the complaining witness did not mention details about which she testified, namely Swann's possible presence, until "a week or so before trial."

In order to establish a Brady violation requiring reversal, the record must show that undisclosed evidence was both exculpatory and material. See MacKenzie v. Commonwealth, 8 Va. App. 236, 244, 380 S.E.2d 173, 177 (1989).

Exculpatory evidence is material if there is a reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense. A "reasonable probability" is one which is sufficient to undermine confidence in the outcome of the proceeding.

Bowman v. Commonwealth, 248 Va. 130, ___, 445 S.E.2d 110, 112 (1994) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). See also Lemons v. Commonwealth, 18 Va. App. ___, ___, 446 S.E.2d 158, 160 (1994) (defendant must show that a reasonable probability exists that disclosure would have resulted in different outcome).

Evidence that impeaches the credibility of a Commonwealth witness is exculpatory evidence. Robinson v. Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986). Assuming without deciding that the Commonwealth knew that Swann would testify that he was not present as the complaining witness had said, even if that evidence is exculpatory, the trial court did not err in holding the information was not material because it would not have produced a different outcome.

At trial, the appellant denied having sexual intercourse with the complaining witness. He called six witnesses to impeach her testimony. Their testimony suggested that the complaining witness had a motive to fabricate her complaint because she was angry at appellant for forcing her off his property and not letting her attend his parties. They also testified that she had a reputation in the community for not telling the truth and that on numerous occasions, she denied having had sexual intercourse with appellant. During post-trial hearings, the Commonwealth's attorney represented to the court that Sara Lawson told him during an interview that she was with the complaining witness at appellant's home when Swann was present. This was consistent with the complaining witness's testimony that Lawson was in the room with Swann, appellant, and her just before appellant and the complaining witness went to appellant's bedroom. Investigator Robinson testified that, during an October 1992 interview, Lawson stated that she was with the complaining witness at a party at appellant's home and that Swann was also present.

Based on the entire record, the trial judge did not err in holding, based upon a reasonable degree of probability, that even if the Commonwealth had exculpatory evidence that Swann would testify that the complaining witness was not present at appellant's home, such evidence would not have affected the outcome of the case. See Lemons, 18 Va. App. at ___, 446 S.E.2d at 161; Humes v. Commonwealth, 12 Va. App. 1140, 1144, 408 S.E.2d 553, 555 (1991). Accordingly, the trial court did not err in refusing to set aside the verdict.

II.

A court has the responsibility to determine when a prosecutor is disqualified to act in a case. Hall v. State, 210 S.E.2d 852 (Ala.Ct.App. 1968); State v. Harris, 477 S.W.2d 42, 45 (Mo. 1972). "[M]ere prejudice of the prosecuting attorney against defendant . . . will not disqualify him." Hall, 210 S.E.2d at 854.

Appellant sought the disqualification of the Commonwealth's attorney and his entire staff because of a pending complaint appellant filed against the prosecutor with the State Bar. The complaint was based on a holding by this Court in an unrelated criminal case involving appellant. There, we affirmed the trial court's decision to suppress statements made by appellant under an agreement of immunity with the Commonwealth's attorney. See Commonwealth v. Sluss, 14 Va. App. 601, 419 S.E.2d 263 (1992).

In his motion, appellant requested that the Commonwealth's attorney "and any of his assistants" be disqualified because the pending "ethical conduct charge" against the prosecutor "makes for an appearance of impropriety" and because the prosecutor "cannot be impartial in prosecuting this case as required by the canons of ethics."

In overruling appellant's motion, the trial judge found that the mere filing of an ethics complaint against a prosecutor in a prior unrelated case was not sufficient to disqualify that prosecutor in a later, unrelated criminal case against the same defendant. The trial judge stated:

I'm going to protect the defendant here, declare that if Mr. McAfee is going to be an overzealous prosecutor, I'm going to intervene and if he does anything wrong, I'll declare a mistrial. He's an attorney for the Commonwealth and the fact that an ethical conduct [complaint] has been filed against him, I don't think it's sufficient grounds to disqualify him.

"In determining whether a ruling on a motion to [disqualify a prosecutor] was proper, a reviewing court applies the abuse-of-discretion standard." People v. Hamilton, 756 P.2d 1348, 1356 (Cal. 1988), cert. denied, 489 U.S. 1040 (1989). "When one seeks to disqualify a prosecuting attorney . . . it is incumbent upon him to establish facts from which the trial court may reasonably conclude that the accused will probably not receive a fair trial to which he is entitled." Wheeler v. District Court, 504 P.2d 1094, 1096 (Colo. 1973) (en banc) (holding that prosecutor's disqualification was not required where the defendant had earlier testified against the prosecutor before a grand jury).

The appellant did not produce any evidence of misconduct, personal animosity, or bias by the prosecutor against appellant that prevented appellant from receiving a fair trial. See id. Accordingly, the trial judge did not abuse his discretion in refusing to disqualify the prosecutor or his staff.

III.

When a defendant takes the witness stand and denies any guilt in the offenses for which he is on trial, "he open[s] the door for any questions on cross-examination that the trial court, in the exercise of its discretion, might find relevant to the issue of guilt or innocence." Satcher v. Commonwealth, 244 Va. 220, 252, 421 S.E.2d 821, 840, cert. denied, 113 S.Ct. 1319 (1992). See also Bunch v. Commonwealth, 225 Va. 423, 438, 304 S.E.2d 271, 279-80 (scope of cross-examination is within discretion of trial court, and its discretion will not be interfered with on appeal unless "plainly abused"), cert. denied, 464 U.S. 977 (1983). A witness may be impeached by showing that the witness has formerly made statements inconsistent with the witness's present testimony. Neblett v. Hunter, 207 Va. 335, 340, 150 S.E.2d 115 (1966). Before evidence of a prior inconsistent statement may be introduced, the cross-examining party must lay a proper foundation. Wickham v. Turpin, 112 Va. 236, 238, 70 S.E. 514, 515 (1911). Where a party, during cross-examination, attempts to impeach a witness on collateral matters, the party asking such questions is "required to accept the [witness's] response" and may not produce evidence to impeach the witness. Simpson v. Commonwealth, 13 Va. App. 604, 608, 414 S.E.2d 407, 410 (1992).

Before the appellant took the stand, the trial judge ruled that evidence about an alleged bribe to the complaining witness, recorded from a body-wire worn by her, was too prejudicial to admit at trial. The trial judge stated:

I think we're getting up into a foreign field and I'm just going to exclude the matters now and at this time for any direct evidence from the Commonwealth as to this tape, it may come up in cross examination that something may or may not, may or may not use the tape . . . .

(Emphasis added.)

At trial, appellant testified and denied his guilt. He and his witnesses explained that the complaining witness was asked to leave one party at appellant's home and was repeatedly told to stay off appellant's property. Thus, appellant produced evidence to show that he and the victim were not friendly or intimate. In response, and without mentioning the taped conversation, the Commonwealth sought to impeach appellant by asking whether he had earlier stated that he missed talking with the complaining witness and that he treated her "extra special." Appellant responded that he may or may not have said those things; he could not recall. No evidence was offered to show whether appellant made the statements.

There was evidence that pornographic videotapes were shown on a monitor in appellant's basement during the second incident, yet no one knew how the tapes were activated. There was also conflicting evidence regarding whether Lori Bailey Sluss was present in appellant's home before the offenses occurred. One piece of evidence had to do with a videotape in which Lori was pictured, and there was conflicting evidence whether the date on the videotape, March 1992, was correct or whether it was incorrectly recorded on the tape due to a malfunction. Also, Derrick Rose testified that he and Bobby Ramos had intercourse with Lori. Rose stated that this occurred before his April 27 birthday, yet appellant testified that Lori had not been at his home prior to April 28. Therefore, the Commonwealth's query into whether appellant had ever referred to himself as an "electronics whiz" was relevant.

In light of appellant's version of the events surrounding the second incident, his denial of any relationship with the victim, and his denial that Lori was present before April 28, 1992, we cannot say that the trial judge abused his discretion in finding these questions to be relevant regarding appellant's guilt. Moreover, no evidence of the inconsistent statements was admitted to rebut appellant's answers. Because the prior statements were not admitted, no foundation was required.

IV.

The hearsay rule excludes out-of-court declarations only when they are "offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted." If the court can determine, from the context and from the other evidence in the case, that the evidence is offered for a different purpose, the hearsay rule is no barrier to its admission.

Manetta v. Commonwealth, 231 Va. 123, 127, 340 S.E.2d 828, 830 (1986) (citations omitted) (emphasis omitted).

"The hearsay rule does not operate to exclude evidence of a statement, request, or message offered for the mere purpose of explaining or throwing light on the conduct of the person to whom it was made." Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960). See also Foster v. Commonwealth, 209 Va. 297, 163 S.E.2d 565 (1968).

Appellant sought to impeach the credibility of the complaining witness on cross-examination. Defense counsel first broached the subject of a meeting between appellant and the complaining witness, asking the complaining witness about her offer to drop the charges for $2,500. She told defense counsel that the police had her make the offer. During redirect examination, the Commonwealth attempted to clarify the details of this meeting.

Because defense counsel opened the door to the meeting and suggested that the complaining witness intended to blackmail appellant, the Commonwealth was allowed to explore the reasons why the complaining witness acted the way she did, namely, following instructions from the police. Accordingly, the trial judge did not err in allowing the complaining witness to testify about the detective's instructions. See Fuller, 201 Va. at 729, 113 S.E.2d at 670.

Moreover, because the defense introduced evidence of the meeting, including the request for $2,500, it cannot now argue that such evidence was prejudicial or inadmissible. See Whitten v. McClelland, 137 Va. 726, 741, 120 S.E. 146, 150 (1923) ("an objection to evidence cannot be availed of by a party who has . . . voluntarily elicited the same evidence, or has permitted it to be brought out by his adversary without objection. The rule . . . is properly and logically applicable . . . if the party who has brought out the evidence in question, or who has permitted it to be brought out, can be fairly held responsible for its presence in the case."). Id.

V.

Appellant contends that the trial court committed reversible error by allowing the prosecutor to try to impeach his own witnesses, John Hall and Alicia Yates.

A party producing a witness . . . may, in case the witness shall in the opinion of the court prove adverse, by leave of the court, prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

Code Sec. 8.01-403.

Code Sec. 8.01-403 refers only to a witness who "proves adverse," namely, "a witness whom the party expected to testify favorably has suddenly turned sour and testified unfavorably." Charles E. Friend, The Law of Evidence in Virginia Sec. 4-9 (4th ed. 1993). The determination whether a witness has proved to be "adverse" rests within the sound discretion of the trial court. See Virginia Electric Power Co. v. Hall, 184 Va. 102, 105, 34 S.E.2d 382, 383 (1945); Weller v. Commonwealth, 16 Va. App. 886, 892, 434 S.E.2d 330, 335, aff'd on other grounds on reh'g en banc, 443 S.E.2d 171 (1993).

Code Sec. 8.01-401(A) provides that "[a] party called to testify for another, having an adverse interest, may be examined by such other party according to the rules applicable to cross-examination." That subsection has been held applicable to criminal cases, and in that subsection, the word "party" is not limited to litigants. Nelson v. Commonwealth, 153 Va. 909, 918-19, 150 S.E. 407, 410 (1929) (applying former Code Sec. 6214, presently codified as Sec. 8.01-401(A) using substantially the same language); Pendleton v. Commonwealth, 131 Va. 676, 705-06, 109 S.E. 201, 212 (1921).

The Commonwealth's attorney represented to the trial judge that, based on an interview between John Hall and the authorities, he expected Hall to testify that the videotape of Lori Bailey Sluss was made in March 1992. As indicated earlier, there was conflicting evidence whether Lori was present during the second incident. Based on these facts and Hall's apparent recalcitrance, the prosecutor successfully requested the trial judge to declare Hall an adverse or hostile witness so that he could ask leading questions. Accordingly, we cannot say that the trial judge abused his discretion in allowing the Commonwealth's attorney to question Hall as an adverse witness.

Regarding appellant's contention that the prosecutor tried to impeach his own witness with inconsistent statements, the record shows that this was not done. The prosecutor merely asked Hall, "[I]sn't it true that this episode with the video tape . . . was in March of 1992?" After Hall's equivocal response, the Commonwealth asked him no further questions.

Alicia Yates was called by the Commonwealth and testified that the videotape of Lori Bailey Sluss was made in the spring, sometime between March and June. The prosecutor asked her, "Just a moment ago, what did you say, when did you say it happened?" Defense counsel objected, claiming that the prosecutor was trying to impeach his own witness. When defense counsel asserted that the question had already been asked and answered, the Commonwealth's attorney claimed that he did not hear Yates's answer. After she repeated her response, the Commonwealth rested without further questioning.

The prosecutor was surprised by Yates's response, but he did not attempt to have Yates declared an adverse or hostile witness, nor was there an attempt to introduce any prior inconsistent statements. Because Yates was not impeached, we find no reversible error. Assuming that the prosecutor's repeated question may have been improper, we find any error harmless. See Ragland v. Commonwealth, 16 Va. App. 913, 921, 434 S.E.2d 675, 680 (1993).

VI.

"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). " 'The uncorroborated testimony of one witness may be sufficient to sustain a verdict of guilty.' " Bryant v. Commonwealth, 10 Va. App. 421, 427, 393 S.E.2d 216, 220 (1990) (quoting United States v. Arrington, 719 F.2d 701, 705 (4th Cir. 1983), cert. denied, 465 U.S. 1028 (1984)).

The complaining witness testified that she twice had consensual intercourse with appellant when she was twelve years old. Robert Gillenwater, a friend of appellant, testified that, shortly after the two incidents, he met with appellant and appellant told him that he was embarrassed that he (appellant) had had sex with "someone so young." The fact finder believed the testimony of these witnesses and rejected the testimony of appellant and his witnesses. "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). The testimony of the Commonwealth's witnesses was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that appellant was guilty of two counts of statutory rape.

Affirmed.


Summaries of

Sluss v. Commonwealth

Court of Appeals of Virginia. Argued at Salem, Virginia
Jan 10, 1995
Record No. 1252-93-3 (Va. Ct. App. Jan. 10, 1995)
Case details for

Sluss v. Commonwealth

Case Details

Full title:SCOTT RAY SLUSS v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Argued at Salem, Virginia

Date published: Jan 10, 1995

Citations

Record No. 1252-93-3 (Va. Ct. App. Jan. 10, 1995)