Cortez-Hernandez v. Commonwealth
58 Va. App. 66
| Va. Ct. App. | 2011Background
- Omar Vasquez was killed in May 2008 after Cortez-Hernandez and associates confronted him and his group near Georgetown South.
- Omar previously fought Santos Ontiveros; later, Cortez-Hernandez obtained and carried a .45 caliber gun while accompanying friends.
- At the May 31, 2008 incident, Cortez-Hernandez fired four shots from behind a tree, killing Omar; bullets matched his weapon.
- Rivera, Omar’s friend, testified for the Commonwealth; on re-direct, Rivera described the shooting, which defense counsel argued exceeded the scope of direct/cross.
- The court overruled defense objections to recross-examination; after redirect, the court refused further cross-examination of Rivera.
- Cortez-Hernandez testified in his own defense; claimed fear and that he fired in self-defense but did not target Omar or others specifically.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court deprived Cortez-Hernandez of his right to recross-examine Rivera | Cortez-Hernandez contends the recross was improperly denied after new material on re-direct. | Commonwealth concedes error but asserts it was not reversible due to lack of a proffer. | Not preserved for appeal; affirm on this issue. |
| Whether the trial court erred in refusing excusable self-defense and voluntary manslaughter instructions | Cortez-Hernandez argues excusable self-defense and voluntary manslaughter theories were supported by the evidence. | Commonwealth contends only justifiable self-defense was supported; excusable/self-defense not warranted; voluntary manslaughter instruction unnecessary. | No reversible error; instructions refused were unsupported; affirmed. |
Key Cases Cited
- Ray v. Commonwealth, 55 Va.App. 647 (Va. App. 2010) (proffer requirement and preservation of evidentiary issues)
- Spencer v. Commonwealth, 238 Va. 295 (Va. 1989) (cross-examination scope and proffer requirements)
- Clagett v. Commonwealth, 252 Va. 79 (Va. 1996) (proffer required to preserve cross-examination issues)
- Marlowe v. Commonwealth, 2 Va.App. 619 (Va. App. 1986) (timely objection with specificity required for preservation)
- McDuffie v. Commonwealth, 49 Va.App. 170 (Va. App. 2006) (preservation requirements citing Rule 5A:18)
- Turner v. Commonwealth, 23 Va.App. 270 (Va. App. 1996) (rejection of lesser-included instruction harmless where greater offense proven)
- Dearing v. Commonwealth, 260 Va. 671 (Va. 2000) (factors for evaluating harmless error in cross-examination)
- Delaware v. Van Arsdall, 475 U.S. 673 (U.S. Supreme Court 1986) (confrontation rights and harmless-error analysis)
- Shanklin v. Commonwealth, 222 Va. 862 (Va. 1981) (confrontation rights importance in truth-finding)