Richard W. Durrer v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 21, 1998
• Docket: 1601972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Elder Argued by teleconference

RICHARD W. DURRER MEMORANDUM OPINION * BY v. Record No. 1601-97-2 JUDGE LARRY G. ELDER APRIL 21, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GREENE COUNTY Lloyd C. Sullenberger, Judge J. Thomas Love, Jr., for appellant.

Ruth Ann Morken, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Richard W. Durrer (appellant) appeals his convictions of

obstruction of justice and assault and battery. He contends that

the trial court erred when it excluded evidence regarding the

demeanor and conduct of one of the Commonwealth's witnesses

shortly after appellant's arrest. For the reasons that follow,

we affirm.

Appellant was charged with obstruction of justice and

assault and battery following an encounter with Investigator Troy

W. Buttner and Deputy Stuart R. Snead on the morning of

November 6, 1996. The evidence at appellant's trial proved that

Investigator Buttner and Deputy Snead arrived at appellant's auto

body shop after receiving information from appellant's cousin

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. that appellant was engaged in a physical altercation with his

former girlfriend, Angela S. Jarrell. After the officers

attempted unsuccessfully to persuade Jarrell to leave the scene,

appellant emerged from his shop carrying an aluminum baseball

bat. Both Investigator Buttner and Deputy Snead testified that

appellant verbally threatened to use the bat to force Jarrell to

leave his property and walked toward her and the two officers

while carrying the bat. The officers testified that, after

appellant failed to comply with their order to drop the bat and

continued his approach, Deputy Snead sprayed appellant in the

face with pepper spray. According to the officers, appellant

responded by swinging the bat and striking Deputy Snead's right

hand. Investigator Buttner then struck appellant about three

times with an expandable baton, and Deputy Snead followed by

tackling appellant to the ground. After a fifteen-to-twenty

second struggle, during which appellant resisted their efforts to

subdue him, the officers handcuffed appellant and took him into

custody. During his altercation with the officers, appellant

sustained injures that required medical attention later that day.

Appellant's cousin and Jarrell testified on appellant's

behalf and gave accounts that conflicted with the testimony of

the officers. They testified that the officers assaulted

appellant with the pepper spray and the baton after he failed to

comply with their order to drop the bat. However, they testified

that appellant never threatened to use the bat and never swung

2 it.

At the end of his case-in-chief, appellant sought to

introduce the testimony of James M. Hatmaker, which was proffered

for the record. Hatmaker would have testified that he observed

Deputy Snead execute a traffic stop of Jarrell a few minutes

after appellant was taken into custody. According to Hatmaker,

Deputy Snead angrily approached Jarrell as she sat in her car,

yelled at her, and pulled forcefully on her driver-side window

until it shattered. The trial court ruled that Hatmaker's

testimony was inadmissible because it was irrelevant. "Evidence is relevant if it has any logical tendency to

prove an issue in a case." Goins v. Commonwealth, 251 Va. 442,

461, 470 S.E.2d 114, 127, cert. denied, 117 S. Ct. 222 (1996).

Evidence that tends to show that "'a witness is biased and his

testimony unreliable because it is induced by considerations of

self-interest'" is "always relevant." Banks v. Commonwealth, 16

Va. App. 959, 962, 434 S.E.2d 681, 683 (1993) (quoting Barker v. Commonwealth, 230 Va. 370, 376, 337 S.E.2d 729, 733 (1985)).

"Evidence of a crime or act that relates directly to the

credibility of a witness and the weight that should be given to

his or her testimony is admissible." Id. at 963, 343 S.E.2d at

683 (citing Adams v. Commonwealth, 201 Va. 321, 326, 111 S.E.2d

396, 399-400 (1959)). Evidence of specific acts of misconduct is generally not admissible in Virginia to impeach a witness' credibility. However, where the evidence . . . is relevant to show that a witness is biased or has a motive to

3 fabricate, it is not collateral and should be admitted.

Id. (citations omitted).

We hold that the trial court did not err when it concluded

that Hatmaker's testimony was not relevant to the issue of Deputy

Snead's credibility. Deputy Snead's testimony concerned the

actions of appellant, not Jarrell. As such, the evidence of

Deputy Snead's alleged misconduct toward Jarrell is relevant at

appellant's trial only if the deputy would be motivated to

justify or conceal his behavior toward Jarrell by falsely

accusing appellant of striking him with the baseball bat and

resisting the officers' efforts to arrest him. See Banks, 16 Va.

App. at 964, 434 S.E.2d at 684 (holding that evidence that the

Commonwealth's witness distributed drugs while investigating the

defendant for drug-related activity was admissible to show that

the witness had a motive to falsely implicate the defendant in

order to conceal his own crimes). However, the deputy's alleged

incident with Jarrell occurred later in time and at a different

location than his altercation with appellant. Although Deputy

Snead had an interest in convincing his superiors that his

decision to shatter Jarrell's driver-side window was warranted by

the circumstances, he could not achieve this end by giving a

false account of appellant's conduct at a different time and

place. Because the proffered evidence of Deputy Snead's

unprovoked aggression toward Jarrell could not logically provide

the deputy with a "motive to implicate [appellant] in order to

4 conceal his own [misconduct]," we cannot say that the trial

court's exclusion of this evidence was erroneous. Id. at 964,

434 S.E.2d at 684.

For the foregoing reasons, we affirm the convictions of

obstruction of justice and assault and battery.

Affirmed.