Levert Alexander Cosby v. Commonwealth of Virginia
1982162
| Va. Ct. App. | Nov 21, 2017Background
- Cosby was charged with possession offenses and originally tried in May 2016; a mistrial led to a jury trial set for July 14, 2016 at 10:00 a.m. He did not appear at 10:00 a.m.; the jury was dismissed and a capias issued. Cosby was later arrested for felony failure to appear under Code § 19.2-128(B).
- The Commonwealth moved in limine to exclude testimony that Cosby arrived at the courthouse about 10:20 a.m. dressed for trial; the trial court granted the motion (but allowed that testimony at sentencing).
- At trial, the Commonwealth’s witness (Detective Mansfield) testified Cosby was not present when the case was called around 10:00 a.m., but could not recall precise times. Defense presented testimony from Cosby’s aunt that she drove him, was delayed due to recent surgery/medication, and dropped him at the door; she did not know exact times. The defense’s investigator (Mullins) was prevented from testifying at trial that he saw Cosby in the hallway at 10:20 a.m.
- The jury convicted Cosby of felony failure to appear and imposed a $1,000 fine. On appeal, Cosby argued (1) the court erred by excluding Mullins’s testimony about the 10:20 arrival and (2) the evidence was insufficient to prove the failure to appear was willful.
- The Court of Appeals held the trial court abused its discretion in excluding Mullins’s testimony (it was relevant and not substantially outweighed by prejudice) and that exclusion was not harmless; but the Court also held the admitted evidence was sufficient to permit a rational juror to find willfulness. The conviction was reversed and remanded for a new trial if the Commonwealth so elects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Mullins’s testimony that Cosby arrived ~10:20 a.m. | Testimony is relevant to rebut prima facie inference of willfulness and shows good‑faith attempt to appear | Testimony irrelevant and risks confusing jury; time of arrival not dispositive of willfulness | Trial court abused discretion; testimony was relevant and probative, exclusion reversible error |
| Harmless‑error from exclusion | Exclusion affected jury’s assessment of intent; not harmless | Any omission was cumulative or slight; verdict stands | Error was not harmless; exclusion could have influenced jury; reversal required |
| Sufficiency of evidence to prove willfulness | Exclusion shows lack of proof; evidence insufficient | Notice proved and Cosby absent when case called; prima facie willfulness and jury could reject defense | Evidence presented at trial (apart from excluded testimony) was sufficient for a rational juror to find willfulness |
| Double jeopardy barrier to retrial | If evidence insufficient, retrial barred | If error reversible and evidence sufficient, retrial permitted | Because admitted evidence was sufficient, retrial would not violate double jeopardy (case remanded) |
Key Cases Cited
- Proffitt v. Commonwealth, 292 Va. 626 (Va. 2016) (erroneous exclusion of material testimony may be reversible when it could affect the verdict)
- Hunter v. Commonwealth, 15 Va. App. 717 (Va. Ct. App.) (willfulness defined; failure to appear after notice is prima facie evidence of willfulness)
- Carter v. Commonwealth, 293 Va. 537 (Va. 2017) (non‑constitutional harmless error standard: error harmless only if it did not influence the jury or had only slight effect)
- Williams v. Commonwealth, 57 Va. App. 750 (Va. Ct. App.) (prima facie rule that failure to appear after notice supports inference of willfulness)
- Kelly v. Commonwealth, 41 Va. App. 250 (Va. Ct. App.) (appellate review presumes trial court judgment correct; sufficiency reviewed viewing evidence in light most favorable to Commonwealth)