COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys Argued at Richmond, Virginia
DAVID W. FOGG MEMORANDUM OPINION * BY v. Record No. 3062-00-2 JUDGE JAMES W. BENTON, JR. MAY 28, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge
Carolyn V. Grady (Epperly, Follis & Schork, P.C., on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (Randolph A. Beales, Attorney General on brief), for appellee.
A jury convicted David W. Fogg of second-degree murder and
use of a firearm in the commission of that murder. Fogg contends
the trial judge erred in (i) limiting his attorney's
cross-examination of adverse witnesses and (ii) instructing the
jury on modus operandi. For the following reasons, we reverse
Fogg's convictions and remand for a new trial.
I.
The indictment alleged that David Fogg murdered Darryl
Adkins in the first degree in violation of Code § 18.2-32. At
trial, the evidence proved Darryl Adkins was killed by a gunshot
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. on October 20, 1998, when he left a residence on Wainwright
Drive after 11:00 p.m.
The trial evidence was based in significant part on the
testimony of convicted felons. Joseph Rouse testified for the
Commonwealth that on October 20, 1998 he was at Fogg's home when
Fogg said Adkins owed Fogg money. Rouse testified Fogg was
angry and said he "was . . . going to try to look [Adkins] up."
Rouse also testified that Vernon Ripley was at Fogg's home on
October 20, that Ripley used his car several times that day
because Ripley's car was in disrepair, and that Ripley also
asked to use Rouse's car so that he could find Adkins.
Rouse admitted he had been a drug dealer and testified that
on October 20 he was on probation for committing felonies and
was wanted by law enforcement because he had violated probation.
He also testified that he was high on cocaine most of the day.
Rouse spoke to the police about Adkins's murder after he was
arrested on an unrelated offense on January 3, 1999. Although
Rouse testified that the Commonwealth had not offered him any
help or made any promises, he testified that he wanted some help
"[i]f somebody will give him some help," that he had been
convicted of three or four felonies, and that he also had
charges that were pending. The prosecutor stipulated that the
Commonwealth's Attorney had telephoned the Commonwealth's
Attorney in Chesterfield County and informed him that Rouse
would be testifying as its witness in this murder trial.
- 2 - William Hagy testified he had known Fogg for approximately
three and a half years and that he would go to Fogg's home to
"sit around and smoke crack" with Fogg. He testified he and his
brother, James Hagy, went to Fogg's home on the night of October
20 to buy cocaine. He recalled that Fogg, Ripley, Barry McGee,
and Wendy Bright were at Fogg's home that night and that Fogg
was "arguing, bickering" with someone on the phone, saying he
wanted his money. When Fogg asked him to drive Ripley
someplace, he declined because Ripley had a gun. He described
Ripley as "a strong man," who "collected money for [Fogg] if
somebody owed him money." Later, he heard Fogg tell Bright and
Ripley "to go take care of what they had to take care of." When
he and his brother left the house about 11:40 p.m., Ripley and
Bright departed in the direction of Wainright Drive, with Bright
driving. He testified that when he returned to Fogg's home the
following day, Bright was there. Fogg remarked that "his boy
took care of his job."
When asked by the prosecutor whether the Commonwealth had
done anything for him, he responded, "no, sir." He testified,
however, that he did expect some help with his sentences and
admitted, on cross-examination, that he had been convicted of
nineteen felonies. Fogg's attorney introduced a letter written
by the prosecutor to Commonwealth's Attorneys in ten
jurisdictions indicating that both William and James Hagy were
cooperating in the murder prosecution and asking for
- 3 - "consideration in [the] ultimate dispositions" of their pending
charges. Fogg's attorney also introduced a letter William Hagy
had written to the prosecutor expressing his concern about "what
is happening with getting [his prison sentences] reconsidered to
be run concurrent" and indicating his understanding that a judge
could not reconsider his sentence after he is sent from jail to
the penitentiary. When asked whether his cases had been
delayed, he answered, "No. I have a whole bunch of cases." He
further admitted he was serving sentences of approximately fifty
years and that he had cases pending in Essex, King William,
Gloucester, Charlottesville, Powhatan, and Richmond.
When Fogg's attorney asked if his two bad check charges
were dismissed after testifying before the grand jury, the
prosecutor objected. The trial judge ruled that, if the
evidence did not show the charges were dismissed by an
agreement, the inquiry was improper. In response to the judge's
question whether he had an agreement that the prosecutor would
dismiss those cases if he testified, Hagy responded "no, sir."
The judge sustained the objection.
James Hagy testified that on October 20 he heard Fogg on
the telephone yelling at "Darryl" that "he had to have his
money." He testified that shortly after the telephone
conversation ended, Fogg told Ripley, "ya'll go take care of
that." He testified that he and his brother refused to take
Ripley in their vehicle because they "wanted to go smoke [their]
- 4 - crack" and because Ripley was "the enforcer" who collected money
for Fogg. He testified that Bright was at Fogg's house when he
returned the next day and she looked scared. He also testified
that Fogg remarked that his "boy did his job" and that months
later, while in jail, Fogg remarked again that Ripley had "done
his job."
James Hagy also testified that the Commonwealth had
promised him "[a]bsolutely nothing." He testified, however,
that he was "hoping" for help. He admitted that he has been
convicted of twelve felonies and fourteen misdemeanors involving
lying, cheating, or stealing. When Fogg's attorney sought to
question him about cases that were dismissed and continued and
charges that were reduced after he testified before the grand
jury, the prosecutor objected and argued that Fogg's attorney
could not establish "the fact that [the prosecutors] were
involved in any of the charges." The judge again ruled that
Fogg's counsel first must establish a promise was made.
Barry McGee testified that he and Adkins were best friends
and that they often went to Fogg's house to use cocaine. On the
afternoon of October 20, he telephoned Adkins from Fogg's house
and informed him that Fogg wanted to be paid immediately. He
testified that when Fogg joined that conversation and angrily
said he wanted his money, Adkins said he would pay Fogg later
that day. McGee testified he left Fogg's house, found Adkins,
and warned him to pay Fogg. McGee testified that he returned to
- 5 - Fogg's home later that evening and told Fogg that Adkins was
around the corner and was coming to pay the money. Later, he
heard Fogg say to Ripley and Bright "go ahead and take care of
that." McGee testified that Ripley, who was Fogg's "collector"
and "somebody not to mess around with," departed with Bright in
the direction of Wainwright Drive. They left in a sport utility
vehicle at the same time the Hagy brothers left in a sport
utility vehicle. He testified that he saw Bright at Fogg's home
the next morning and that she was "real nervous, hysterical,
crying, something is really wrong."
McGee testified that he was arrested two months after
Adkins's murder for a cocaine offense and admitted that he had
been convicted of felonies related to drug use. He spoke with
the police about Adkins's murder in April of 1999 after he was
arrested for a second cocaine offense. McGee also testified
that he had not been offered a deal by the Commonwealth but
agreed that six days after he testified in the Commonwealth's
case against Ripley, he pled guilty on his second charge of
possession of cocaine and received a two-year sentence, with one
year and eleven months suspended.
Columbus Sandifer, who had been convicted of approximately
ten felonies, testified that he was in the Richmond City Jail
with Fogg and that he overheard Fogg saying that "[h]e sent an
individual to go and collect some money for him and he come back
- 6 - and he said his boy took care of it." Sandifer testified that
the Commonwealth had not promised him anything for testifying.
A boy, who was eleven years old at the time of the
shooting, testified that after 11:00 p.m. on October 20, he saw
a sport utility vehicle stop by a man who was walking on
Wainwright Drive. A man exited the driver's side of the vehicle
and, after a "couple of seconds" of arguing, shot the man who
was walking. He did not see the face of the shooter but
testified that the shooter wore a puffy jacket, which he
identified to be similar to a photograph of a jacket Ripley
often wore and was wearing on October 20. He identified the
type of vehicle as similar to Bright's vehicle, and he testified
that he saw a person run from the vehicle before the shooter
entered the vehicle and drove away.
An adult, who resided on Wainwright Drive, testified that
she heard an argument at around 11:30 p.m. and went to the front
door of her home. She saw two men "talking loud," saw a man
exit a sport utility vehicle, and saw him shoot Adkins. She
then saw a person run from the vehicle before the shooter
entered the vehicle and drove away. She described the shooter's
height, weight and race, and she testified that the shooter
appeared to be the person depicted in the photograph of Ripley.
She testified that after the vehicle drove away, she saw a white
car, which she had seen Fogg drive on past occasions, drive by
her house.
- 7 - At the conclusion of this evidence, Fogg presented
evidence, including his testimony that he "was passed out" on
October 20 and that McGee, Rouse, and the Hagy brothers were not
at his house on October 20. Although he testified his house was
"a crack house," he denied that Ripley collected debts for him.
He also testified that Adkins owed him $30 only because he did a
favor for Adkins and paid that amount to another man who had
Adkins's saw. He denied being involved in the murder and
testified that McGee told him of Adkins's murder. Fogg is a
convicted felon.
William Moore, a convicted felon, testified that in June
2000 he heard James and William Hagy "say that they were going
to get their time to run concurrent for testifying against
[Fogg] saying he murdered somebody." Jacob Aquino, another
convicted felon, testified that Rouse told him that the Hagy
brothers were trying to get him to testify about something he
"didn't know anything about." Aquino also testified that the
Hagy brothers told him they had a "sweet" deal where they would
get "four and a half years" instead of twenty they had received.
At the conclusion of the evidence, the jury convicted Fogg
of second degree murder and use of a firearm in the commission
of murder. This appeal followed.
II.
Fogg contends that the trial judge erred in ruling that his
attorney could not question the Commonwealth's witnesses
- 8 - regarding pending and dismissed cases until he established that
an agreement existed between those witnesses and the
Commonwealth's Attorney. The Commonwealth contends the trial
judge did not abuse his discretion in limiting cross-examination
and contends further that any error made by the trial judge was
harmless.
"Cross-examination is an absolute right guaranteed to a
defendant by the confrontation clause of the Sixth Amendment and
. . . is '[o]ne of the most zealously guarded rights in the
administration of justice.'" Clinebell v. Commonwealth, 235 Va.
319, 325, 368 S.E.2d 263, 266 (1988) (citation omitted). It is
a right that is "fundamental to the truth-finding process." Id.
Thus, the Supreme Court has held that "[a]n accused has a right
to cross-examine prosecution witnesses to show bias or
motivation and that right, when not abused, is absolute." Brown
v. Commonwealth, 246 Va. 460, 464, 437 S.E.2d 563, 564-65
(1993).
Where the purpose of the inquiry is to impeach a witness' veracity, cross-examination concerning a witness' prior convictions is limited to prior felony convictions and convictions for misdemeanors involving moral turpitude. However, it is error to apply the principles governing cross-examination for purposes of impeaching a witness' veracity to limit cross-examination designed to demonstrate a witness' bias or motive to testify.
Scott v. Commonwealth, 25 Va. App. 36, 41, 486 S.E.2d 120, 122
(1997) (emphasis added). "Although a trial [judge] may exercise
- 9 - discretion to see that the right of cross-examination is not
abused, the discretion may be employed only after the right to
cross-examine has been fairly and substantially exercised."
Barrett v. Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194
(1986).
The record clearly establishes that Fogg's attorney's
questioning of James and William Hagy about their convictions
and the resulting dispositions concerned bias and motive to
testify rather than veracity. Furthermore, the proffered
testimony in this case established that Fogg's attorney was
seeking to show the witnesses' bias. Fogg's attorney proffered
evidence that William Hagy had approximately forty-eight charges
pending when he first spoke with the Commonwealth concerning the
murder. About nineteen of those charges had been nolle prossed,
and two had been reduced from felonies to misdemeanors. The
proffered evidence also indicated that James Hagy had
approximately twenty-seven charges pending when he first spoke
to the Commonwealth concerning the murder. Ten of his charges
had been nolle prossed, and three had been reduced from felonies
to misdemeanors. In addition, both witnesses had several
pending criminal cases that had been continued during this time.
In Brown, defense counsel attempted to cross-examine a
witness on unadjudicated crimes to prove the witness' bias and
motive to testify. The Supreme Court held that the defense "was
entitled to cross-examine [the witness] in an effort to
- 10 - establish that his testimony was motivated by a bargain for
leniency relating to the charges pending against him,
particularly since [the witness] admitted that the trial of
those charges had been continued each month since the date of
his arrest." Brown, 246 Va. at 464, 437 S.E.2d at 565.
The Commonwealth argues that the trial judge did not err in
this case because there was no evidence of an agreement. The
proffered evidence, however, was a sufficient basis from which
the jury could infer that an agreement had been reached and was
therefore relevant to the issue of the witnesses' bias and
motive to testify. Indeed, Fogg's attorney introduced a letter
written by the prosecuting Commonwealth's Attorney's office to
the Commonwealth's Attorneys in ten jurisdictions. In the
letter, the Commonwealth's Attorney explained that both William
and James Hagy "continue to cooperate . . . in an on-going
murder investigation" and that "they may be called as witnesses
for the Commonwealth if and when [an] indictment is obtained."
In pertinent part, the letter also indicated: "While I am aware
of the extensive charges they currently have in your
jurisdictions, I hope that their cooperation here will be given
some consideration in their ultimate dispositions." The jury
certainly could have inferred from this evidence that an
agreement existed between the Commonwealth and the witnesses
that bore on the issue of bias and motive.
- 11 - Had the jury been privy to the number of charges pending
against the Hagy brothers, the jury may have discredited the
testimony of both witnesses. Given this potential effect, we
cannot say the trial judge's error in limiting defense counsel's
cross-examination was harmless.
"[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt;" otherwise the conviction under review must be set aside. This standard requires a determination of "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." In making that determination, the reviewing court is to consider a host of factors, including the importance of the tainted evidence in the prosecution's case, whether that evidence was cumulative, the presence or absence of evidence corroborating or contradicting the tainted evidence on material points, and the overall strength of the prosecution's case.
Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209
(1999) (citations omitted).
A critical issue at trial was whether Fogg had directed
Ripley to collect a debt from Adkins. On this point, William
and James Hagys' testimony bolstered McGee's testimony that he
overheard Fogg tell Ripley and Bright to "take care of" a matter
and Sandifer's testimony that Fogg sent someone to collect a
debt. The fact that this testimony was corroborated by the
testimony of both James and William may have persuaded the jury
to believe both Sandifer's and McGee's statements.
- 12 - In Lilly, the Supreme Court of Virginia determined that not
permitting the defense to cross-examine a witness whose
statement was entered against the defendant was not harmless
error because, without this corroborating evidence on a critical
point at issue, the Commonwealth had only one remaining witness
whose credibility was significantly challenged. 258 Va. at
553-54, 523 S.E.2d at 210. Similarly, without the testimony of
the Hagy brothers, the Commonwealth's case would have rested
substantially on the testimony of McGee and Sandifer, convicted
felons, whose testimony was in conflict with Fogg's account of
that evening. In addition, only James Hagy testified that Fogg
mentioned Adkins's name immediately prior to directing Ripley to
"go take care of that." This testimony provided the critical
link in the Commonwealth's theory that Fogg's statement
concerned Adkins.
When Fogg's attorney sought also to explore the witnesses'
bias and personal interest in implicating Fogg, he "was entitled
to reveal to the jury the full weight of any pressures brought
to bear on [a witness], at the time he testified, which might
motivate him to depart from the truth." Hewitt v. Commonwealth,
226 Va. 621, 623, 311 S.E.2d 112, 114 (1984). If the jury had
heard the proffered testimony, the jury could have inferred that
the Hagys' motivation for testifying was leniency in the
overwhelming number of cases currently pending against them.
- 13 - Thus, the jury may have disbelieved their account of what
transpired.
The proffered evidence was neither repetitious nor
cumulative. We cannot say beyond a reasonable doubt that the
jury would have convicted Fogg without the testimony of James
and William Hagy. Accordingly, we conclude that the trial
judge's error in restricting cross-examination of the
Commonwealth's witnesses was not harmless error.
III.
Fogg additionally contends that, because no evidence of
modus operandi was proved at trial, the judge erred in giving
the jury an instruction referring to the "unique nature of the
method of committing the crime." The Commonwealth contends the
objection was waived and the instruction is a correct statement
of the law.
The trial judge instructed the jury as follows:
You may consider evidence that the defendant committed an offense or offenses other than the offense for which he is on trial only as evidence of the following: defendant's motive, malice, intent, scheme or plan, premeditation, the unique nature of the method of committing the crime charged in connection with the offense for which he is on trial conduct and the defendant's feelings towards Daryl Adkins and relations between them and for no other purpose.
At trial, Fogg's attorney objected and said that the
instruction concerning evidence of other crimes "can't be
introduced about the unique nature or method of committing the
- 14 - crime. That's modus operandi . . . . There is nothing unique
about this offense." The trial judge allowed the instruction
concluding that "[t]here is a theory of this case that he had an
enforcer to collect the drug debts." Both the objection and
ruling addressed the precise issue now raised.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (citation omitted). In the case at bar,
the jury was instructed that they could "consider evidence that
[Fogg] committed an offense or offenses other than the offense
for which he [was] on trial . . . as evidence of . . . the
unique nature of the method of committing the crime charged."
The issue of modus operandi may be raised where "there is a
disputed issue of identity" and evidence of other crimes is
offered in an attempt to establish that the crimes are
sufficiently idiosyncratic to permit a logical inference that
there was a common perpetrator. Johnson v. Commonwealth, 259
Va. 654, 677, 529 S.E.2d 769, 782 (2000). The evidence in this
case contained no proof of other crimes that would permit such
an inference and, thus, it raises no issue of modus operandi.
The trial judged erred in instructing the jury concerning the
"unique nature of the method of committing the crime." The jury
could have improperly applied this instruction, misunderstanding
- 15 - that the evidence proved a unique offense if it believed Ripley
was an "enforcer" of debts.
IV.
For these reasons, we reverse both convictions and remand
for a new trial consistent with this opinion.
Reversed and remanded.
- 16 -