COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys Argued at Richmond, Virginia
ANTOINE LAMONT CHRISTIAN MEMORANDUM OPINION * BY v. Record No. 0212-02-2 CHIEF JUDGE JOHANNA L. FITZPATRICK DECEMBER 3, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
David M. Gammino for appellant.
John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General; Susan M. Harris, Assistant Attorney General, on brief), for appellee.
A jury convicted Antoine Lamont Christian (appellant) of
voluntary manslaughter and use of a firearm in the commission of a
felony for the shooting death of Lawrence Lavonte "Capone"
Washington (Washington). The sole issue raised on appeal is
whether the trial court erred by excluding testimony of specific
acts of the victim to prove his disposition for violence and
turbulence. For the following reasons, we reverse appellant's
convictions and remand for further proceedings if the Commonwealth
be so advised.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND
On the afternoon of July 7, 2001 Washington and a friend
each drank 44 ounces of beer. They were "just sitting around,
conversating [sic]" at the Randolph Court apartments. Appellant
and his girlfriend Shanda Trice (Trice) arrived at the
apartments, and Trice approached Washington's group and greeted
them. Shortly thereafter, appellant approached the group, gave
Washington "an evil look" and told Trice to "come on." As
appellant and Trice walked away from the group and toward her
apartment, they appeared to be arguing.
A short time later, appellant came out of Trice's apartment
and walked toward his car. Washington approached him, and the
two "had words." Stephanie Brown stated that the two spoke for
a "couple of minutes," and she saw Washington raise up his hands
and say, "Naw" as he took a step backward and appellant shot
him. Shay Harris saw Washington walk over to appellant, speak
to him and then saw appellant shoot Washington. Tanya Harris
said that appellant did not raise his voice and did not appear
upset. Harris stated that appellant "walked back from the car
like he was going back up to Shanda's house" and that was when
Washington approached him. Appellant then shot Washington.
None of the witnesses saw appellant with a gun prior to the
shooting.
Appellant testified that he purchased his gun in February
2000 and carried it with him in a holster for the protection of
- 2 - his family and himself. Appellant stated that he was aware of
shootings, drug deals and "drive-bys" in the neighborhood and
that was why he carried the gun. Appellant described the
encounter with Washington as follows:
I was coming from out my house and [Washington] said, "Hey, Nigger, let me holler at you." So I keeps on walking to get to my car, but I never make it to my car. . . . Because he approaches me fast. He was walking over to me fast. . . . I don't know what's going on. . . . He's like "Hey Nigger, let me holler at you. Nigger, why do you f------ keep on me? Nigger, you want a beef? Nigger, you want a beef, Nigger? What the f--- you want me to do, Nigger? I'm going to f--- your ass up, Nigger. What the f--- you want to do?"
By this time, appellant and Washington were "face-to-face"
and Washington was "yelling and screaming" at appellant. Trice
and appellant's daughter were standing next to appellant during
the confrontation. When appellant saw Washington reach for his
waistband he "was scared at that time for my life. I thought he
was grabbing for a gun, so I had to protect myself." After the
shooting, appellant "ran in my car and left, because I was still
scared for my life out there with his friends living there."
Appellant further stated that he had never spoken to
Washington until the day of the shooting. Although appellant
"never had no dealings with him," he felt that Washington was
"bad news." However, earlier in the day, appellant saw
Washington "and a couple of more young men was out there [at the
Randolph Court apartments]. Once my car came past the speed
- 3 - bump, [Washington] steps in front of my car. I swerved over. I
ain't pay it no mind. I just went straight on."
Washington was unarmed and died of a gunshot wound to the
head. An autopsy report revealed that Washington's blood
alcohol was .20 or "two and a half times" the legal limit.
Appellant turned himself in to police on July 9, 2001.
Appellant tried to introduce into evidence two instances
of Washington's character for violence and turbulence when he
had been drinking. The trial court allowed Washington's former
girlfriend, Andrea Thomas, to testify. Thomas stated that
Washington drank on "a daily basis." On March 8, 2001, after
Washington had been drinking, he beat Thomas, broke her nose and
stole her car. However, the trial court refused to allow two
police officers, who had attempted to arrest Washington on a
separate occasion, to testify and describe Washington's
aggressive behavior. In that instance, the officers responded
to a domestic dispute that arose after Washington had been
drinking. When the police arrived, Washington was arguing with
his girlfriend. Although he was initially cooperative with
them, when one of the officers attempted to escort him from the
apartment and told him he was under arrest, he became violent.
He fought the two officers, and they were required to use mace
to subdue him. Appellant argued that the additional testimony
was crucial to his defense because it would help him to
establish that Washington was the aggressor. The trial court
- 4 - ruled, "I don't believe that the incident with the officers is
related to this. I allowed Miss Thomas to testify, because it
involved a woman and some alcohol and that effects [sic] the
nexus I would say to the event of this day." Appellant contends
the trial court's refusal to admit the additional testimony
regarding Washington's character for turbulence and violence was
reversible error. We agree.
II. ADMISSIBILITY
"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."
Jones v. Commonwealth, 38 Va. App. 231, 236, 563 S.E.2d 364, 366
(2002) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371
S.E.2d 838, 842 (1988)).
"It is well settled in Virginia that where an accused
adduces evidence that he acted in self-defense, evidence of
specific acts is admissible to show the character of the victim
for turbulence and violence, even if the accused is unaware of
such character." Jordan v. Commonwealth, 219 Va. 852, 855, 252
S.E.2d 323, 325 (1979) (citing Barnes v. Commonwealth, 214 Va.
24, 197 S.E.2d 189 (1973); Stover v. Commonwealth, 211 Va. 789,
180 S.E.2d 504 (1971); Randolph v. Commonwealth, 190 Va. 256, 56
S.E.2d 226 (1949)).
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys Argued at Richmond, Virginia
ANTOINE LAMONT CHRISTIAN MEMORANDUM OPINION * BY v. Record No. 0212-02-2 CHIEF JUDGE JOHANNA L. FITZPATRICK DECEMBER 3, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
David M. Gammino for appellant.
John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General; Susan M. Harris, Assistant Attorney General, on brief), for appellee.
A jury convicted Antoine Lamont Christian (appellant) of
voluntary manslaughter and use of a firearm in the commission of a
felony for the shooting death of Lawrence Lavonte "Capone"
Washington (Washington). The sole issue raised on appeal is
whether the trial court erred by excluding testimony of specific
acts of the victim to prove his disposition for violence and
turbulence. For the following reasons, we reverse appellant's
convictions and remand for further proceedings if the Commonwealth
be so advised.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND
On the afternoon of July 7, 2001 Washington and a friend
each drank 44 ounces of beer. They were "just sitting around,
conversating [sic]" at the Randolph Court apartments. Appellant
and his girlfriend Shanda Trice (Trice) arrived at the
apartments, and Trice approached Washington's group and greeted
them. Shortly thereafter, appellant approached the group, gave
Washington "an evil look" and told Trice to "come on." As
appellant and Trice walked away from the group and toward her
apartment, they appeared to be arguing.
A short time later, appellant came out of Trice's apartment
and walked toward his car. Washington approached him, and the
two "had words." Stephanie Brown stated that the two spoke for
a "couple of minutes," and she saw Washington raise up his hands
and say, "Naw" as he took a step backward and appellant shot
him. Shay Harris saw Washington walk over to appellant, speak
to him and then saw appellant shoot Washington. Tanya Harris
said that appellant did not raise his voice and did not appear
upset. Harris stated that appellant "walked back from the car
like he was going back up to Shanda's house" and that was when
Washington approached him. Appellant then shot Washington.
None of the witnesses saw appellant with a gun prior to the
shooting.
Appellant testified that he purchased his gun in February
2000 and carried it with him in a holster for the protection of
- 2 - his family and himself. Appellant stated that he was aware of
shootings, drug deals and "drive-bys" in the neighborhood and
that was why he carried the gun. Appellant described the
encounter with Washington as follows:
I was coming from out my house and [Washington] said, "Hey, Nigger, let me holler at you." So I keeps on walking to get to my car, but I never make it to my car. . . . Because he approaches me fast. He was walking over to me fast. . . . I don't know what's going on. . . . He's like "Hey Nigger, let me holler at you. Nigger, why do you f------ keep on me? Nigger, you want a beef? Nigger, you want a beef, Nigger? What the f--- you want me to do, Nigger? I'm going to f--- your ass up, Nigger. What the f--- you want to do?"
By this time, appellant and Washington were "face-to-face"
and Washington was "yelling and screaming" at appellant. Trice
and appellant's daughter were standing next to appellant during
the confrontation. When appellant saw Washington reach for his
waistband he "was scared at that time for my life. I thought he
was grabbing for a gun, so I had to protect myself." After the
shooting, appellant "ran in my car and left, because I was still
scared for my life out there with his friends living there."
Appellant further stated that he had never spoken to
Washington until the day of the shooting. Although appellant
"never had no dealings with him," he felt that Washington was
"bad news." However, earlier in the day, appellant saw
Washington "and a couple of more young men was out there [at the
Randolph Court apartments]. Once my car came past the speed
- 3 - bump, [Washington] steps in front of my car. I swerved over. I
ain't pay it no mind. I just went straight on."
Washington was unarmed and died of a gunshot wound to the
head. An autopsy report revealed that Washington's blood
alcohol was .20 or "two and a half times" the legal limit.
Appellant turned himself in to police on July 9, 2001.
Appellant tried to introduce into evidence two instances
of Washington's character for violence and turbulence when he
had been drinking. The trial court allowed Washington's former
girlfriend, Andrea Thomas, to testify. Thomas stated that
Washington drank on "a daily basis." On March 8, 2001, after
Washington had been drinking, he beat Thomas, broke her nose and
stole her car. However, the trial court refused to allow two
police officers, who had attempted to arrest Washington on a
separate occasion, to testify and describe Washington's
aggressive behavior. In that instance, the officers responded
to a domestic dispute that arose after Washington had been
drinking. When the police arrived, Washington was arguing with
his girlfriend. Although he was initially cooperative with
them, when one of the officers attempted to escort him from the
apartment and told him he was under arrest, he became violent.
He fought the two officers, and they were required to use mace
to subdue him. Appellant argued that the additional testimony
was crucial to his defense because it would help him to
establish that Washington was the aggressor. The trial court
- 4 - ruled, "I don't believe that the incident with the officers is
related to this. I allowed Miss Thomas to testify, because it
involved a woman and some alcohol and that effects [sic] the
nexus I would say to the event of this day." Appellant contends
the trial court's refusal to admit the additional testimony
regarding Washington's character for turbulence and violence was
reversible error. We agree.
II. ADMISSIBILITY
"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."
Jones v. Commonwealth, 38 Va. App. 231, 236, 563 S.E.2d 364, 366
(2002) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371
S.E.2d 838, 842 (1988)).
"It is well settled in Virginia that where an accused
adduces evidence that he acted in self-defense, evidence of
specific acts is admissible to show the character of the victim
for turbulence and violence, even if the accused is unaware of
such character." Jordan v. Commonwealth, 219 Va. 852, 855, 252
S.E.2d 323, 325 (1979) (citing Barnes v. Commonwealth, 214 Va.
24, 197 S.E.2d 189 (1973); Stover v. Commonwealth, 211 Va. 789,
180 S.E.2d 504 (1971); Randolph v. Commonwealth, 190 Va. 256, 56
S.E.2d 226 (1949)). "[S]uch evidence bears on the questions as
to who was the aggressor or what were the reasonable
apprehensions of the defendant for his life and safety."
- 5 - Randolph, 190 Va. at 265, 56 S.E.2d at 230. "When evidence of
prior acts of violence against third parties is admissible, a
defendant is entitled to present such evidence in the most
tactically advantageous manner." Craig v. Commonwealth, 14
Va. App. 842, 844-45, 419 S.E.2d 429, 431 (1992).
The defense sought to introduce the evidence of prior drinking problems in order to support [appellant's claim of self-defense] in justification of the homicide. For that purpose the evidence was relevant and material. Where, as here, there is evidence that the victim was intoxicated at the time of the shooting, evidence of his character or reputation for turbulence when in such condition is admissible on the issue of self-defense.
Barnes, 214 Va. at 26, 197 S.E.2d at 190.
Specifically, appellant proffered the testimony of the two
Henrico County police officers who had the violent encounter
with the victim two years earlier on January 22, 1999. The
proffered testimony showed that Washington, who had been
drinking, refused to leave an apartment where his girlfriend was
located, fought the officers, pushed one to the floor and the
other into a wall. Although the officers were not injured, they
had to use mace to subdue and control Washington. This incident
was related to an argument between Washington and a former
girlfriend which escalated into a brawl with the uniformed
police officers. Thus, the trial court's observation that the
incident involving Thomas had a nexus because it involved "a
- 6 - woman and some alcohol" was equally true of the police officers'
proffered testimony.
"[T]he nature and quality of an overt act cannot be judged
in a vacuum. Rather, the acts must be viewed through the eyes
of the person allegedly threatened." Craig, 14 Va. App. at 844,
419 S.E.2d at 431. Appellant testified that he feared for his
life when he shot Washington and that Washington had reached for
his waistband. Appellant made it a regular practice to carry a
gun because he felt the neighborhood was not safe. This belief
was reinforced by Officer Mule's testimony that the neighborhood
was "a high crime area." The forensic examiner also admitted
that he had "responded to that apartment complex to collect
forensic evidence for other homicides."
"[I]n support of his claim of self-defense, [appellant] had
the right to show . . . that [Washington] was a man of
violence." Craig, 14 Va. App. at 845, 419 S.E.2d at 431.
Appellant's attempt to show Washington's propensity for violence
when he had been drinking was clearly relevant to that issue.
The two-year time frame between the incident with the police and
the shooting was not a bar to appellant's right to adduce the
proffered testimony at trial. "Once a nexus for relevancy of
prior conduct or character has been established, as here, the
issue of remoteness concerns the weight of the evidence and the
credibility of the witnesses, both of which are within the
province of the jury. To bar such evidence altogether was
- 7 - error." Barnes, 214 Va. at 26, 197 S.E.2d at 190-91 (holding
five years was not too remote). Moreover, appellant sought to
adduce testimony of only two incidents. Thus, there was no
danger of cumulative testimony.
III. HARMLESS ERROR
The Commonwealth contends that even if the testimony was
erroneously excluded, such error was harmless. We disagree.
We must reverse a criminal conviction unless it plainly appears from the record and the evidence given at the trial that the error did not affect the verdict. An error does not affect the verdict if we can determine, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.
Hanson v. Commonwealth, 14 Va. App. 173, 190, 416 S.E.2d 14, 24
(1992) (citing Code § 8.01-678; Lavinder v. Commonwealth, 12
Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)) (internal
quotations omitted).
A reviewing court must take into account the burden of proof applied at trial when evaluating the impact of an error upon a verdict. To the extent that the impact of an error on a verdict is affected by the burden of proof, in a criminal case, the reviewing court must consider that the fact finder was required to reach its verdict beyond a reasonable doubt.
Lavinder, 12 Va. App. at 1006, 407 S.E.2d at 911 (internal
quotations omitted). "The effect of an error on a verdict
varies widely depending upon the circumstances of the case.
Each case must, therefore, be analyzed individually to determine
- 8 - if an error has affected the verdict." Id. at 1009, 407 S.E.2d
at 913 (internal citations and quotations omitted).
The "decisive issue" presented by the evidence at trial was
whether appellant acted in self-defense. Id. On that issue,
appellant was entitled to introduce evidence of Washington's
reputation for turbulence and violence, including specific acts,
when he was intoxicated. The police officers' proffered
testimony was relevant and probative of Washington's character
for turbulence and violence when drinking. The Commonwealth
specifically elicited testimony from Thomas that there "were
many times when [Washington] was drinking" that the two of them
"got along just great" and that the beating was a "one time
event." Clearly evidence of another violent episode when
Washington was drunk was highly probative of who the aggressor
was in this case. Without usurping the jury's fact finding
function, it is impossible for us to say whether this evidence
would have affected the verdict. Accordingly, we reverse and
remand the case to the trial court for a new trial.
Reversed and remanded.
- 9 -