Maynard v. Commonwealth

399 S.E.2d 635, 11 Va. App. 437, 7 Va. Law Rep. 1116, 1990 Va. App. LEXIS 227

Opinions

Benton, J.,

dissenting.

The right of cross-examination is fundamental to the truth-finding process and is an absolute right preserved to the accused by the constitutional guarantee of confrontation. Barrett v. Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194 (1986); Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961). The trial judge may exercise discretion to prohibit the abuse of cross-examination, but this discretion may only be employed after the right to cross-examine the witness has been substantially and fairly exercised. Barrett, 231 Va. at 108, 341 S.E.2d at 194. “Subject to such reasonable limitations as the trial court may impose, a party has an absolute right to cross-examine his opponent’s witness on a matter relevant to the case, which the opponent has put in issue by direct examination of the witness.” Washington v. Commonwealth, 228 Va. 535, 549, 323 S.E.2d 577, 587 (1984), cert. denied, 471 U.S. 1111 (1985).

In upholding the trial judge’s limitation on Maynard’s right to cross-examine, the majority glosses over the significance of Detective Valentine’s testimony on direct examination. As our Supreme Court stated in Baltimore, Chesapeake & Atlantic Ry. v. Hudgins, 116 Va. 27, 81 S.E. 48 (1914), “it is not irrelevant to inquire of the witness whether he has not on some former occasion given a different account of a matter of fact to which he has already testified, in order to lay a foundation for impeaching his testimony by contradicting it.” Id. at 32, 81 S.E. at 49. This is so even though the matter is collateral or immaterial to the issue in the case. Id. at 31, 81 S.E. at 49; see also Avocet Dev. Corp. v. McLean Bank, 234 Va. 658, 668-69, 364 S.E.2d 757, 763 (1988). The majority fails to perceive “the distinction between collateral matter introduced upon the cross-examination, to lay a foundation for impeaching [the witness’] testimony by contradicting the witness, and matter which [the witness] has testified to in [the] examination in chief, introduced by [the witness], and stated to the jury as part of [the witness’] own narrative of the transaction.” Hudgins, 116 Va. at 32-33, 81 S.E. at 49. The latter is a permissible form of proof; the former is not. Id. at 32, 81 S.E. at 49.

On four occasions during direct examination, the Commonwealth asked the detective why he did not arrest Maynard. Although the detective had previously testified under oath that he had two reasons for not arresting Maynard, on this examination the detective gave only the reason that he was in a “holding pattern” waiting for another investigator to arrive. Thus, despite the detective’s prior sworn testimony that he did not arrest Maynard because he did not believe he had sufficient evidence, the Commonwealth, through its questions on direct examination, sought to convince the jury that the detective did not arrest Maynard because the detective was awaiting assistance from other officers. Maynard’s attempt to impeach the detective’s testimony was within the scope of proper cross-examination. See Hudgins, 116 , 81 S.E. at 49.

Moreover, the majority fails to appreciate the importance that the Commonwealth placed on the detective’s role in this case and the significance of his testimony when this case was tried before the jury. The Commonwealth first made the detective’s role a central issue during its opening remarks to the jury:

[The victim] tells the police officer she talked to that [the assault was committed by] Bobby Maynard. Henrico Police — such a case as this, serious felony charges, would be assigned to a detective in the Crimes Against The Person’s section. There are a couple of basic sections in the Detective Bureau here. One is Crimes Against Property and one is Crimes Against Persons, and Crime Against Persons obviously is homicide, rapes, robberies and violence to the person. That is what this is. Crimes Against Property. Break-in and larceny, another piece, different types of cases, involved with a violent person.

That particular morning on August 14th, when she went to the East End Dabbs House, Henrico County Police did not actually have a detective on Crimes Against Persons available to meet with her. . . . They were not available ... So, what did they do? The Police assigned Detective Rick Valentine, an experienced detective, who is in Crimes Against Property, to go out and meet with [the victim] at the Dabbs House and to find out basically what happened, and do the preliminary things that are necessary to maintain the integrity of the case to pursue things that need to be done like getting her to a doctor and things like that. Until the proper investigator for Crimes Against Persons can be assigned or reassigned. The time of that reassignment is unknown. It could be any time that day or maybe the next morning, but as soon as someone could be freed, okay, so, Valentine talks to her and takes her down to MCV Hospital where she is examined by Dr. Rinehardt.

* * *

[A]fter she has been raped, she sees Robert Owen Maynard. The sister sees him first. Robert Owen Maynard was out in his yard next door in Jack Maynard’s yard cutting the grass. They can’t believe it. He is out there, bold as brass, cutting the grass. They called the police and Det. Valentine and they speak with Valentine and he comes out there to speak to Mr. Maynard. He advises him of his Constitutional rights and to get the statement from him about were he was the night before, but remember here, Det. Valentine is not looking really to make an arrest in this particular case. There is a lot that goes into making a case that is prosecutable and winnable so that you can convict a person in court. Things need to be done. He is not doing that because that is not his major orders from superiors. He is trying to protect the case until it is reassigned and he has not, Mr. Maynard is not arrested, although [the victim] has said that, I believe it is Bobby Maynard. There are some things that the police want to check on.

In its case-in-chief, the Commonwealth offered direct testimony from the detective that he interviewed Maynard shortly after the victim told him Maynard raped her. The Commonwealth then elicited the detective’s testimony that he did not arrest Maynard because he was only temporarily assigned to the case. The Commonwealth’s Attorney knew the testimony was inconsistent with the detective’s testimony at the first trial.¹

The majority ignores the deceptive direct testimony and portrays defense counsel’s cross-examination as an attempt solely to lay a foundation to impeach the detective. Although the cross-examination would have served the permissible purpose of impeach ing the detective’s testimony as to a fact to which the detective had testified on direct examination, Hudgins, 116 Va. at 32, 81 S.E. at 49, the cross-examination also would have established that the detective did not have information which warranted an arrest of Maynard even though he had extensively interviewed the victim and Maynard. The cross-examination would have exposed the deception that was perpetrated on the jury, thereby casting doubt on the strength of the victim’s descriptions at the time of the incident.

The majority makes much of its conclusion that the detective did not give testimony adverse to Maynard. However, the trial judge’s ruling, which the majority now sanctions, shielded the detective from giving evidence that tended to exculpate Maynard. The trial judge’s restriction on the cross-examination of the detective may have caused the jury to assign more weight to his testimony than it otherwise might have done, thereby bolstering indirectly the victim’s testimony.

In its harmless error analysis, the majority provides an extensive discussion of the reason why they believe the detective’s testimony was irrelevant to the case. Although it should suffice to state that Hudgins controls the disposition of the question presented in this case, the harmless error analysis warrants a response. The majority paints the detective as a marginal participant in the investigation of the crime, characterizing his investigation of Maynard as being perfunctorily done “out of a sense of duty.” The record establishes, however, that the detective conducted a thorough investigation of the incident on the day it occurred. He interviewed the victim and Maynard. His testimony on direct examination concerning his investigative efforts covers thirty-one pages of trial transcript. One of the consequences of limiting Maynard’s cross-examination of the detective was to deprive the jury of the detective’s testimony that he made an informed judgment not to arrest Maynard because he had not been convinced by the evidence at his disposal, including the victim’s statement. That a police investigator with twenty-two years experience failed to arrest Maynard because he doubted the strength of the victim’s story is not an irrelevant fact in a case where the proof was purely circumstantial.

Any harmless error analysis of this case must take into account the relative strength of the Commonwealth’s case. In so doing, sig nificant weight must be given to the fact that this was the second time that Maynard had been tried. In the first trial, the jury failed to convict Maynard. The evidence in the second trial, which resulted in a conviction, differed from the evidence in the first trial in one respect — the limitation on the detective’s testimony.

The prosecution was based entirely on circumstantial evidence. The victim’s bedroom was dark. Although the majority speculates about the sources of light, the victim testified that the only light in the room came from a digital clock. The medical records from the hospital recount the victim’s report that “the room was dark and I could not see his face.” The record also reflects that the victim was near-sighted, with uncorrected vision of 20/300, and was not wearing her contact lenses. The victim further testified that she “could see enough to know a mustache and the silhouette, and the body and build ... I never got a detailed shot of the face . . . and I never could have given an eye color or birthmark or anything like that.” When asked if she saw a mustache, she responded: “I saw the silhouette of the face with the mustache.” After the assault the victim gave varying estimates of her attacker’s height. She described him as being as short as 5’ 6” and as tall as 5T1.” At trial it was established that Maynard was five feet seven inches tall.

The evidence also proved that a cigarette stub was found on the ground under the victim’s window and another was found in her room. Both were “Winstons.” Although Maynard was a smoker, he smoked “Marlboros.” The victim, who said she had not smoked in several years, testified that the cigarette stubs found on the window sill and on the ground outside the window were not hers. She testified that her assailant smoked a cigarette during the assault. The laboratory report showed that the cigarette stub in the window had saliva indicative of a type A secretor. The cigarette stub found outside the window contained no “factors that would indicate a secretion type.”

Because the victim reported that the assailant kissed her breasts, the hospital obtained samples of fluids from the victim’s breast. Those samples also indicated fluids from a type A secretor. Maynard was a type O secretor. The victim was a type A secretor. Although none of the forensic evidence necessarily excluded Maynard from the universe of potential suspects, none conclusively linked him to the assault.

It is also significant that at trial the victim testified that she saw Maynard cutting his grass later on the day of the rape, but she admitted that she testified at the preliminary hearing that at no time after the rape did she see the man who raped her. She also testified that Maynard wore blue jeans while cutting the grass and that her attacker also wore blue jeans. The detective who interviewed Maynard while he was cutting grass that same day testified as follows:

A I can’t say positively what he was wearing at that point when I arrived. For some reasons shorts sticks in my mind, but I would not be able to swear that he was definitely wearing shorts.

Q Let me ask you this: Do you recall my asking you on February 11th, he was wearing red shorts and you said that, I can’t tell you? I recall shorts; I can’t recall exactly what kind of clothing he had on, but I would recall the shorts. Do you recall saying that?

A I can’t deny that I said that. No, sir.

* * *

Q Then again on that same page, Mr. Martin, I asked you, he was not wearing blue jeans? Your answer: Long pants. I said, yes, sir. You said, not that I recall. You don’t dispute the transcript on that either?

A Again, I do not dispute it.

Contrary to the suggestion that Maynard was the only person who may have seen her tattoo, the victim testified that a group of young men residing in a house across the street from her residence had seen her wearing a bathing suit while she was cutting grass. On several occasions while watching her, those men “did some whistles and catcalls.” She testified that the men who reside in the house are in a range of age close to Maynard’s age, wear jeans, and have long hair. She described them as “150 and 160, 5-9 and 5-10, long hair, color of hair, dark brown,” the same description she gave of her attacker. One of the men who had whistled and made “catcalls” at her came to her door one day, offered her beer, and wanted to enter her residence. She said “No,” to which he responded, “you mean you are not going to let me come in?”

Upon this circumstantial evidence, it cannot be said that the limitation on the Maynard’s cross-examination was harmless error. In addition, having opened the inquiry on direct examination concerning the detective’s failure to arrest Maynard and having allowed the detective to contradict his prior sworn testimony, the Commonwealth cannot now be heard to complain that the detective’s reasons for not arresting Maynard were irrelevant to the issues in the case. By refusing to permit Maynard to. cross-examine the detective on the discrepancy between his prior testimony and matters to which the detective testified during the Commonwealth’s direct examination, the trial judge deprived Maynard of the fair exercise of his right of cross-examination. For these reasons and those stated in the panel decision, Maynard v. Commonwealth, 10 Va. App. 15, 389 S.E.2d 910 (1990), I would reverse the conviction of the rape and sodomy charges and remand for a new trial. I too would reverse the conviction of breaking and entering with intent to commit larceny and dismiss that indictment.

Footnotes

1

At the previous trial, which ended in a mistrial because the jury was unable to reach a verdict, Maynard’s counsel had asked the following questions of Valentine without objection from the Commonwealth

Q: Did you place him under arrest at that time (during the August 14, 1986 interview)?

A: I did not.

Q: Did you figure you had sufficient evidence at that point to place him under arrest?

A: I did not.

Q: Would you have felt comfortable arresting him at that point?

A: 1 would not have.

Q: You did not arrest Bobby Maynard on the 14th of August, true?

A: That is correct.

Q: Was the reason because it was going to be reassigned or because you did not have enough evidence or both?

A: Both.