Michael Anthony Starr, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: August 15, 1995
• Docket: 2294932
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Elder Argued at Richmond, Virginia

MICHAEL ANTHONY STARR, A/K/A MICHAEL SAUCERE, A/K/A MICHAEL SAUCIER, A/K/A KEITH SHEPPARDSON, A/K/A JUNO IRVING MEMORANDUM OPINION * BY v. Record No. 2294-93-2 JUDGE LARRY G. ELDER AUGUST 15, 1995 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY James E. Kulp, Judge

Betty Layne DesPortes (Steven D. Benjamin; Steven D. Benjamin and Associates, on briefs), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Michael Anthony Starr (appellant) appeals his convictions

for attempted robbery in violation of Code §§ 18.2-26 and 18.2-58

and two counts of use of a firearm in commission of a felony in

violation of Code § 18.2-53.1. Appellant contends that the trial

court improperly limited the scope of cross-examination of a

prosecution witness. Because the trial court committed no

reversible error, we affirm appellant's convictions.

As the parties are well-acquainted with the relevant facts,

we repeat only those facts necessary to our discussion. On

August 10, 1992, a manager of a McDonald's in Henrico County was

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. shot once in the head. Minutes later, Patricia Justice was

accosted in front of her house, which was approximately one-

quarter-mile from McDonald's.

On October 20 and 22, 1993, appellant was tried before a

jury and was convicted of attempted robbery and two firearms

charges stemming from these incidents. George Bond and Alfred

Robinson testified for the prosecution and implicated appellant

in the incidents. Bond provided many of the details supporting

appellant's convictions, including the whereabouts on the night

in question of himself, appellant, and Robinson; the clothing

they wore; the weapons they carried; and the crimes they

committed. Appellant wished to cross-examine Robinson on aspects

relating to his flight from the jurisdiction after he had been

released on bond in an unrelated grand larceny to which he pled

guilty. Appellant theorized that Robinson agreed to testify in

appellant's trial to gain release from jail and flee; that

Robinson was aware that his version of the McDonald's events were

untrue; and that Robinson's flight constituted a consciousness of

guilt. The trial court prevented appellant from establishing

specific facts relating to Robinson's non-compliance with his

release.

Appellant also asked the court for permission to cross-

examine Robinson on certain issues tending to show bias.

Appellant theorized that Robinson hoped to gain leniency in his

2 sentencing on the grand larceny charge and a separate show-cause

hearing on a ten-year suspended sentence, after he testified

favorably for the prosecution in appellant's case. Appellant

tried to introduce Robinson's presentence report, which contained

details of the grand larceny crime and the evidence of possible

flight. However, the trial court prevented appellant from asking

Robinson details concerning the grand larceny conviction and did

not allow the presentence report to be introduced into evidence,

ruling that any details contained within the plea agreement were

irrelevant and collateral. Robinson admitted on cross-examination that the Commonwealth

offered him concessions in exchange for his testimony in

appellant's case. Robinson, whose testimony at trial generally

corroborated Bond's testimony, also acknowledged five felony

convictions.

We hold that the trial court did not err in limiting

appellant's cross-examination of Robinson. We are guided by

certain well-accepted principles.

Cross-examination of prosecution witnesses is fundamental to the truth-finding process and is an absolute right guaranteed to an accused by the confrontation clause of the sixth amendment. . . . 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 . . . .

Maynard v. Commonwealth, 11 Va. App. 437, 444, 399 S.E.2d 635,

639-40 (1990)(en banc)(citations omitted); see Whittaker v.

3 Commonwealth, 217 Va. 966, 967, 234 S.E.2d 79, 79 (1977)(trial

court erred in ruling that defendant could not cross-examine

prosecution witness about lenient sentences witness received in

exchange for his testimony at defendant's trial, where witness

was the only one who directly implicated defendant).

While an inquiry into bias is always relevant, a "trial

court has discretion to limit the scope of cross-examination

which is for the purpose of establishing bias." Norfolk & W. Ry. v. Sonney, 236 Va. 482, 488, 374 S.E.2d 71, 74 (1988). As the

United States Supreme Court has stated:

It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. And as we observed . . . "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 120 (1985)(per curiam).

Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986); see Scott v.

Commonwealth, 18 Va. App. 692, 694, 446 S.E.2d 619, 620

(1994)(stating that the liberties of a cross-examiner to show a

witness' bias are not unlimited); Williams v. Commonwealth, 4 Va.

App. 53, 77-78, 354 S.E.2d 79, 93 (1987)(stating that a trial

court "'may exercise discretion to see that the right of cross-

4 examination is not abused once the right to cross-examine has

been fairly and substantially exercised.'")(citation omitted).

Appellant was permitted to cross-examine Robinson concerning

his past felony convictions for crimes involving lying, cheating,

and stealing. Appellant was also allowed to cross-examine

Robinson regarding the outstanding grand larceny conviction for

which he had not yet been sentenced. During extensive

questioning, Robinson specifically admitted that he had been

granted bond and released from jail while awaiting sentencing on

that charge, and that he was testifying in exchange for the

Commonwealth recommending a twelve-month sentence on that charge.

Furthermore, Robinson conceded that he was charged in the

attempted robbery of McDonald's and that his trial on that charge

had been continued. Finally, appellant elicited from Robinson

the fact that a show-cause hearing had not yet been held to

determine whether Robinson's ten-year suspended sentence would be

revoked. In light of these facts, this case can be distinguished from

other cases, such as Whittaker, where the defendant's right to

show a witness' bias was abused. In Whittaker there was only one

prosecution witness whose testimony directly implicated

defendant, whereas in this case, at least two prosecution

witnesses provided credible evidence that implicated appellant in

the crimes with which he was charged. Furthermore, in Whittaker,

the defense was prohibited from cross-examining the prosecution

5 witness on any aspect of the lenient sentences he received in

exchange for his testimony in defendant's trial. In this case,

appellant cross-examined Robinson at length about various "deals"

that had been struck between Robinson and the Commonwealth in

exchange for Robinson's testimony.

As we have explained, the trial court's decision to exclude

cumulative evidence is entitled on review to a presumption of

correctness. Harrison v. Commonwealth, 244 Va. 576, 585, 423

S.E.2d 160, 165 (1992). Adhering to this standard of review, we

believe that the trial court set reasonable limitations on

appellant's right to question Robinson, while still protecting

appellant's right to confront Robinson and explore his

credibility and bias. Given the extent to which Robinson's

credibility was impeached, "it is doubtful that additional

evidence in this regard would have made a difference in the

jury's opinion of his credibility." Fitzgerald v. Bass, 6 Va.

App. 38, 55, 366 S.E.2d 615, 625 (1988), cert. denied, 493 U.S.

945 (1989). Allowing the introduction of further evidence

detailing specific aspects of Robinson's presentence report would

have been repetitive and marginally relevant at best.

Furthermore, the trial court did not err in refusing to

admit evidence that allegedly showed Robinson's flight, from

which appellant hoped the jury would conclude that Robinson knew

his version of the crimes lacked credibility and knew that he was

"more guilty" than appellant. Appellant's theories as to

6 Robinson's alleged flight and its impact on his testimony were

irrelevant and speculative, and the trial court did not abuse its

discretion in excluding certain evidence to support these

theories. Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d

838, 842 (1988)("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.").

For the foregoing reasons, we affirm appellant's

convictions. Affirmed.

7 BENTON, J., dissenting.

"[A] primary interest secured by [the Sixth Amendment to the

Constitution] is the right of cross-examination." Douglas v.

Alabama, 380 U.S. 415, 418 (1965). Emphasizing the primacy of

that interest, the Supreme Court of the United States has stated

that the denial of the right to conduct a proper cross-

examination to develop a witness' bias "'would be constitutional

error of the first magnitude.'" Smith v. Illinois, 390 U.S. 129,

131 (1968) (citation omitted). "The very integrity of the

judicial system and public confidence in the system depend on

full disclosure of all the facts, within the framework of the

rules of evidence." United States v. Nixon, 418 U.S. 683, 709

(1974).

Invoking the Constitution of Virginia and statutory law, the

Supreme Court of Virginia has also recognized that "[o]ne of the

most zealously guarded rights in the administration of justice is

that of cross-examining an adversary's witnesses." Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961). The

Court so zealously guards that right because "[o]ne purpose of

cross-examination is to show that a witness is biased and his

testimony is unreliable because it is induced by considerations

of self-interest." Barker v. Commonwealth, 230 Va. 370, 376, 337

S.E.2d 729, 733 (1985).

The witness whom the trial judge refused to allow the

defendant to fully cross-examine at the trial of this case had

8 admitted his own guilt in the offenses for which the defendant

had been charged and was assisting the Commonwealth in its

prosecution. The trial judge refused to allow the defendant to

cross-examine the confessed accomplice regarding the accomplice's

flight from prosecution and a pending criminal charge that had

been held in abeyance while the accomplice cooperated in the

defendant's prosecution. That ruling was error.

The principle is well established that in exploring the

depths of a witness' self-interest, "the cross-examiner is not

only permitted to delve into the witness' story to test the

witness' perception and memory, but the cross-examiner has

traditionally been allowed to impeach, i.e., discredit, the

witness." Davis v. Alaska, 415 U.S. 308, 316 (1974). Moreover,

because a testifying accomplice is exposed to great temptation to

curry favor, the examination of that witness' testimony is

generally of critical importance in a criminal trial.

Recognizing the danger of such testimony, the Supreme Court has

stated that "[a]ny evidence is admissible which tends to affect

the credibility of accomplices or the weight of their testimony

by showing what influences, if any, were brought to bear upon

them." Woody v. Commonwealth, 214 Va. 296, 297-98, 199 S.E.2d

529, 531 (1973).

In order to give effect to the principle that "the exposure

of a witness' motivation in testifying is a proper and important

function of the constitutionally protected right of cross-

9 examination," Davis, 415 U.S. at 316-17, a trial judge may not

limit the right of defense counsel to cross-examine an accomplice

unless the record clearly establishes that counsel has fully

exercised the right to cross-examine and has begun to abuse the

right. It is only after the right of cross- examination has been substantially and fairly exercised that the allowance of further cross-examination becomes discretionary with the court. The right, when not abused, is an absolute right and not a mere privilege of a party against whom a witness testifies.

Moore, 202 Va. at 669, 119 S.E.2d at 327. Moreover, the rule is

well established that "[d]efense counsel should be afforded great

latitude in cross-examining accomplices testifying against a

defendant." Woody, 214 Va. at 98, 199 S.E.2d at 531.

The trial judge's ruling that these issues were collateral

and irrelevant was plainly wrong. An accomplice's conduct for

which the prosecution has shown leniency is always relevant.

Hewitt v. Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114

(1984). Bias may always be shown by facts that prove that an

accomplice had "a motive for favoring the prosecution in his

testimony." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

"The bias of a witness . . . is not a collateral matter . . .

[and] is always a relevant subject of inquiry." Henson v.

Commonwealth, 165 Va. 821, 825-26, 183 S.E. 435, 437 (1936).

Indeed, "a defendant is entitled to show that testimony of a

prosecution witness was motivated by an expectation of leniency

10 in a future trial." Whittaker v. Commonwealth, 217 Va. 966, 968,

234 S.E.2d 79, 81 (1977).

The defendant was entitled to establish the details of the

inducements in order "to reveal to the jury the full weight of

any pressures brought to bear on [the accomplice], at the time he

testified, which might motivate him to depart from the truth."

Hewitt, 226 Va. at 623, 311 S.E.2d at 114. Defense counsel's

attempt to do so was not cumulative but rather was an effort to

cause the accomplice "to admit the complete details of the

inducement." Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429

S.E.2d 881, 884 (1993). The refusal to permit that line of

inquiry on cross-examination was error. Id.

We have a long line of established precedent to emphasize

the principle that the jury is the sole judge of the credibility

of the witnesses. E.g., Mitchell v. Commonwealth, 141 Va. 541,

558, 127 S.E. 368, 374 (1925); Brooks v. Commonwealth, 15 Va.

App. 407, 414, 424 S.E.2d 566, 571 (1992); Estes v. Commonwealth,

8 Va. App. 520, 524, 382 S.E.2d 491, 493 (1989). When the trial

judge refused to allow defense counsel to fully cross-examine the

witness to test his bias and self interest, the jury was deprived

of the ability to fully and fairly discharge its function as the

finder of fact. See Andrews v. C. & O. Ry., 184 Va. 951, 957, 37

S.E.2d 29, 31-32 (1946). That ruling was not based upon any

showing of abusive cross-examination. Because the limitation on

cross-examination was improperly invoked, the trial judge

11 undermined the defendant's constitutional right to cross-

examination and subverted the proper functioning of the

adversarial process.

For these reasons, I would reverse the conviction and remand

for a new trial. I dissent.