*1
Court
Richmond.
Oct. 1999. *4 (Watson Nelson, P.C., Jr., on Watson, Halifax & J. William brief), appellant. for (Mark L. Darron, Attorney General A. Assistant
Leah General, brief), on for Attorney appellee. Earley, JJ., COLE, LEMONS, Senior ELDER and Present: Judge.
COLE, Judge. Senior Clay
Robert Lewis (appellant) jury was convicted a trial degree of second murder and use of a firearm in the commis- (1) sion of murder. He contends trial court erred refusing him to allow to cross-examine Thelma Burns and during the voir dire conducted outside the Ragland Carlos (2) jury’s presence, hearsay allowing evidence from these two (3) witnesses, and to him call refusing allow to David Deputy and, Martin aas witness. We find no error reversible for the reasons, following affirm the convictions.
Facts 25, 1996, August On County entered Halifax Sheriffs to Office asked to speak Lieutenant Ernest Appearing Powell. “shook-up” and “upset,” appellant told wife, Powell Clay. he had shot his Joy Powell told dis- call patcher squad. rescue When the squad rescue home, appellant’s arrived at they Clay’s body found Mrs. dead on the den floor. Clay Mrs. died from gunshot had two wounds. trial,
At Thelma Burns presence testified outside the of the jury, and later jury, before the she spoke Clay that with Mrs. every day. death, other In the prior Clay months to her Mrs. asked Burns whether she could move boxes to Burns’s home planned as she to move very because she “was scared what her husband do might During to her.” telephone one conver- sation, Burns say overheard to Mrs. Clay, who had funeral, just bitch, attended “I’m to kill going you you can’t go never with any my family’s me to I’m funerals and tired you, I’m going you, kill bitch.” During telephone killed, only days conversation Clay before Mrs. Burns appellant say Clay, overheard Mrs. might got have “[Y]ou bus, that you school but won’t drive school bus.”1 record, entirely Although Clay clear from the 1. we deduce that Mrs. recently job obtained a aas school bus driver. trial, Ragland presence testified outside the At Carlos him subsequently jury, Clay that Mrs. told jury, and told the to move planning about a month before her death she was *6 might to Dur- happen afraid of what her.” “because she was conversation, overheard ing telephone Ragland appel- another “B” to kill her say going lant and that “he was Clay call Mrs. of because he was tired her.” Jr., and Clay, only appellant son of Mrs.
Robert Lewis him in conversations phone that his mother told Clay, testified that “she was leading month to her death during up job in getting another Roxboro somewhere” moving away and it Robert testified that because she “couldn’t take no more.” practiced firearms.” appellant was an avid hunter who “safe gun or inside the never saw load unload Robert house, keep safety him to on until appellant taught and ready to shoot. his he confronted wife about testified that when
Appellant cabinet, $5,000 knowing his she first denied missing gun from money, taking but then admitted anything about the got all Appellant “just upset” to return it. money and refused gun Appellant from his cabinet. testified gun and took a if she money tell him where the thought he wife would gun claimed that when he “raised the gun. Appellant saw the dis- gun claimed that up just it went off.” twice, although pulling trigger. he not recall charged did Dire during
I. Cross-Examination Voir by refusing to the trial court erred Appellant contends Carlos Ragland him Thelma Burns and allow to cross-examine of the presence conducted outside the during the voir dire and Fourteenth Amendments He claims that the Sixth jury. I, States, Article Section to Constitution of the United right him to confront give Virginia of the Constitution Therefore, erred he contends the trial court his accusers. to cross-examine Burns allow counsel refusing defense of the presence outside during voir dire conducted Ragland jury. Although objected trial judge when the refused to allow defense counsel to Burns and on Ragland cross-examine jury, voir dire conducted out he did not presence so grounds specify any do on constitutional and did not constitutional No will grounds. ruling of the trial court for objection considered as a basis reversal unless the together grounds stated with the therefor at the time ruling, except good for cause shown or to enable this Court to justice. attain the ends See Rule 5A:18. The record does any reflect reason invoke the good cause or ends of justice exceptions to Rule 5A:18. trial,
Prior to the defense counsel advised the trial court that he had ascertained the Commonwealth might present certain Clay witnesses whom Mrs. made statements before she died. He they assumed would be adverse. Defense counsel stated that “it appropriate would be to let Mr. Green- *7 backer Attorney] [Commonwealth’s them ask the questions going he’s to ask them hear I their so can responses objections, make the appropriate because there’s some indica- tion that she said she was to going leave or that he had been lines____” something mean to her or those along Attorney The Commonwealth’s stated that he did not want to have a mini-trial but would “submit to the court or make a proffer.” Defense I replied: counsel “All to wanted do was to if I see could hear what they going say were to before so I it, object preserve record, could to the make appropriate the objections, and then jury you the can hear fit.” whatever see judge Both trial the and the Attorney agreed Commonwealth’s to procedure. this course,
In due the Commonwealth called Thelma Burns as a witness. She to is in submitted what called a “Voir record Examination,” Dire presence of out Mr. jury. fully Greenbacker first examined the witness. When he con- cluded, defense counsel commenced to cross-examine the wit- objected, ness. The Commonwealth’s Attorney stating, “[I] proffer think of the evidence without cross-examination is probably the appropriate way go point.” to at this The trial cross- permit to
judge objection sustained the refused was called as until such time as witness examination of argument After jury. in the trial before the witness counsel, admissi- judge further held that the evidence was record, no the trial court’s ble. this we find abuse of Upon fully of counsel presence jury, In defense discretion. of the voir dire purpose both witnesses. The cross-examined to prior to evidence permit was to defense counsel hear the it, “object him to to purpose permitting trial for the of record, objections,” preserve appropriate make the [and] pursuant request. to own Hearsay Testimony
II. Victim’s in admitting contends trial court erred Appellant Carlos Ragland of Thelma Burns and victim, Joy Clay, them regarding statements made to she to leave because indicating going that she to might was afraid of what he her.2 Burns testified do Joy Clay, on numerous before the death of she occasions with her which “she asked telephone [her conversations [Clay] to house. stated bring could she some boxes she] [her] very to move she was scared going that she was because do to Burns testified she might what her husband her.” Clay’s requests up the time received like and intentions death. conversations, testified the phone Ragland
In similar Carlos victim, on Joy Clay, planning moving “told she was [him] Roxboro, to move be- going North Carolina” and “she was her.” might happen she afraid what cause *8 the Joy Clay get to out of argued that the evidence that he to her did might because was afraid of what do house she that, Therefore, kill evi- not to her. the prove he intended material, not highly was not and should prejudicial, dence admissibility challenge made 2. does of the statements Joy Clay, by Bums and by and overheard Thelma to conversation, that Ragland the effect he telephone Carlos in a herein under anoth- going her. These are considered to kill statements exception hearsay er to the rule.
659 admitted in have been evidence. The Commonwealth main- this under tained evidence was admissible the state of mind exception hearsay to the rule and was show material appellant’s motive intent.
A person seeking hearsay to have declarations ad clearly must they mitted show that are within exception an Thomas, 466, 472, See Doe v. rule. 227 Va. 318 S.E.2d 382, (1984); Commonwealth, 149, 161, v. Foley 386 8 Va.App. 915, 921, banc, 175, 379 S.E.2d en 9 Va.App. 384 S.E.2d aff'd (1989). 813 Hearsay evidence is inadmissible at trial unless it falls into one recognized of the exceptions to rule. See Commonwealth, 188, 197, Evans-Smith v. 5 Va.App. 361 (1987). 436, S.E.2d 441 argues
The Commonwealth of Thelma Burns and Ragland Carlos relating Clay’s of statements fall threats within the state of exception. mind While the statements to prove victim, tend the state of Joy mind of the Clay, such statements “are in Virginia admissible [only] when the statements are relevant and material.” Johnson v. Com monwealth, 2 163, 165 Va.App. (1986); 347 S.E.2d see 400, 406, S.E.2d Kauffmann (1989). Thus, the issue we must address is whether of the victim’s state of mind is relevant and admissible evidence. Evidence,
In McCormick on problem which arises in connection with the admissibility accusatory of statements made before act by is homicide victims discussed:
The of possibility overpersuasion, prejudicial character evidence, and the relative weakness and speculative inference, nature of argue all against admissibility as a Moreover, matter relevance. even the judgment is made that evidence standing of fear alone should be admit- ted, statements of fear rarely are stated In- pristinely. stead, usually that state of mind assumes the form either statement victim the accused has made threats, inferred, from which fear may or perhaps more likely a statement of fear because the defendant’s threats. *9 660 generally cases have excluded evidence....
... [T]he universal, in however, for some circum- Exclusion is not hearsay may be under other stances statements admissible dying or as that for startled utterances exceptions, such declarations____ such state- agreement is broad There self-defense, claims admissible where the defense ments are death, suicide, of those situa- accidental because each or of helps aspects tions decedent’s fear rebut asserted defense. (John ed., Strong, § V. 4th on Evidence 276 W.
McCormick 1992) (footnotes omitted). ed. of mind
Admissibility of declarations under state prerequisites: also on three exception are conditional presently existing state The must refer to 1. statement of must of the mental state emotion Although mind. declaration, may it relate to exist at the time of the or in the in the future. occurring past matters of falsification or 2. There must be no obvious indication contrivance. The to the case.
3. mental condition must relevant § Friend, Virginia 18-16 E. The Law Evidence in Charles of (4th 1993). ed. Commonwealth, 14 416 In Hanson v. (1992), we stated: S.E.2d victim is relevant and
The state of mind of homicide that the contends only material cases where defense accident, In suicide, or the result of self-defense. death was instances, communi- of mind must have been those the state those are an When defenses cated the accused. made aware of the issue, has not been and when the accused mind, become relevant of the statement would victim’s state “a circuitous series inferences.” only through (citations omitted). at 416 S.E.2d at Id. prove victim to be relevant the state of mind of the
For accused, must exist mind some nexus state of accused, by such as show- inferentially implicates which ing “previous threats made the defendant towards the victim, narrations of past incidents of violence on the part the defendant or general verbalizations of fear of the defen- *10 dant.” 188-89, (citation omitted).
Id. at
In this appellant contends that the killing was acciden- tal, but neither the appellant nor any witness testified that the victim’s state mind was appellant. communicated to On the contrary, all of the witnesses testified that the victim’s state- ments, that she planned to move to North Carolina because she husband, was afraid of her were not communicated to the Further, accused. the record contains no evidence establish- ing nexus or link that inferentially establishes that accused any had knowledge of the statements made wife to Burns and Ragland. Without some nexus prove that the statements were communicated or accused he knowledge of them directly either or inferentially, the statements were not material because the accused could not have acted upon them. The trial court erred admitting this evidence.
However, we must now determine whether the court’s error was harmless.
The crux of the harmless analysis error is whether the defendant received a fair trial on the merits and substantial justice has been achieved. When an error at trial has verdict, affected the the defendant deprived has been of a 662 justice on the substantial has not been
fair trial merits and achieved. Commonwealth, 199,
Timmons v. 196, 421 Va.App. 15 S.E.2d Commonwealth, see Davies v. (1992); also 894, Va.App. 15 896 (1992). 353, 350, 839, trial court Although 423 S.E.2d 840 evidence, not automat- by admitting “this does improper erred ... to a entitle reversal' of his conviction. ically [the defendant] ‘A should be reversed unless the introduction of conviction manifest that it improper suggests probability Commonwealth, Rider v. the defendant.’” 8 prejudicial (1989) (citations 595, 600, 25, omitted); 27 Va.App. 383 S.E.2d Commonwealth, 216, Hall v. 12 see also 403 Va.App. Mason (1991); S.E.2d (1988). 339, 348, 373 S.E.2d widely on a “The effect of an error verdict varies *11 the of case.’ Each ‘depending upon circumstances the case must, therefore, if individually to determine an analyzed Commonwealth, error has affected the verdict.” Lavinder v. (citation 910, (1991) 1003, 1009, 12 407 S.E.2d Va.App. 913 omitted). We have further said: particular such an is harmless in a case
“Whether error factors, all upon readily a host of accessible to depends importance courts. factors the of reviewing These include case, whether testimony prosecution’s the witness’ the the cumulative, of presence or absence evi- testimony testimony of contradicting the corroborating dence or the extent cross-examination points, witness on material of course, and, permitted, strength overall otherwise prosecution’s case.” v. 143, 154, Sargent 5 360 S.E.2d Arsdall, (1987) (quoting Delaware Van 475 U.S. (1986)). 674, 106 S.Ct. 89 L.Ed.2d therefore, if the We, improperly look to the evidence see any upon victim- had effect admitted statements fair of a trial. jury deprived and accused verdict appellant deliber- overwhelmingly proved The detailed, written state- his wife. ately shot He admitted ment to Deputy David Martin that he shot his wife. In his trial, written statement and in his at appellant $5,000 stated that he missing gun discovered from his cabinet. He went to the den sitting where his wife was on a sofa. He confronted her about the missing money and she denied knowing it, anything about but taking then admitted money. She refused to return it. Appellant testified that he became upset. He went to the gun bedroom where his cabinet was located. He one of guns. obtained his several He did not loaded, look to see if it was and he did not load it. He then went back to the door of the den where his wife was seated. her, told “I money,” needed the gun raised the up, and it went off. He did not remember discharging gun and did not remember pulling trigger. Appellant testified that he “thought she gun seen the might she tell me where my money was at.” He gun testified the went off twice.
To prove accused, motive and intent of the the Com produced monwealth the testimony of Thelma Bums and Ragland. Carlos During one telephone conversation between victim, Bums and the Bums overheard in the back ground say to Joy Clay, just who had returned from attending funeral, “I’m going you bitch, to kill you go can’t never with any me to of my family’s funerals I’m you, tired of I’m Ml, going to bitch.” Ragland also testified that during a telephone conversation with Joy Clay, he heard the in the background call his “B” wife a say that “he was going to Ml her because he was tired her.” This evidence was admissible as an exception to hearsay rule when *12 by offered prosecution because it constituted the state ment of opposing an party. The jury was entitled to consider it to prove appellant’s motive and intent. See Alatishe v. 376, 378, (1991). 404 S.E.2d son,
Appellant’s Jr., Robert Lewis Clay, testified that he was the executor of his mother’s estate and through went her papers and effects. He never any found cash as large as “a thousand dollars or two thousand dollars.” He did not find that she had any large transferred sum of money to or from Deputy stated in his statement any Appellant accounts. $5,000. reasonably It can be Martin that he never found the $5,000 from this that the never existed. inferred in the household grew up Robert further testified that he a hunter and hunted parents with his and that his father was that his father had “over every hunting season. He testified him how to hunt. taught firearms and that his father three” safe firearms.” He never saw always “practiced Both in always or the house. His father gun father load unload the off-season. Robert had guns regularly during cleaned his in gun his father to his house that keep never known in shells chambered it. testified, up just I it went gun “when raised the stated, “I pulling trigger. He
off.” He did not remember my where gun might if seen the she tell me thought she was at.” money Pickleman, Division of employee Virginia L. an at the
James section, testified Laboratory Forensic Science the firearms gun He testified that expert as an firearms. loaded, safety open pull and then push one would have This would fire the shell that trigger gun. to fire the loading. was automatic weapon in the chamber. The murder eject shell from the firing action of the shell would The fired, go out of the muzzle and gun. pellets When would shell the bolt back and next push the recoil action would It would be loaded into the chamber. magazine from the would have to ready again. trigger to fire The would then be further shot. Pickleman again to fire the second pulled would not weapon on the trigger testified that the mechanism three- it take three and easily. He stated that would fire trigger on each pressure pull quarters pounds could only gun that the way He further testified occasion. to be trigger pulled be for the fire the second time would Pickleman’s tes- necessary pressure. amount of applying did not acci- strong timony provided shotgun. dentally fire the *13 Groben, examiner, Robert medical that
Dr. Glen testified body. to One shotgun the victim received two wounds the chest; the to the left wound was to head and other was body. In both wounds lethal and opinion, side of the his were of the victim have in minutes from loss blood. would died that of of We conclude the admission the statements victim, although they communi- erroneous because were not appellant, beyond cated to harmless a reasonable was light doubt in of all of of the other evidence the Common- wealth, we find that it was harmless error to admit them into evidence.
III. Testify Refusal to Allow Martin to case, appellant After Commonwealth rested its call Martin on attempted Deputy to David as a witness his objected, behalf. contending appel The Commonwealth hearsay lant’s to statements Martin were inadmissible that appellant imply was attempting jury suppressed prosecu evidence had been “improperly by the tion.” The Commonwealth also contended that was attempting to admit appellant’s statements into the evidence through testify Martin when he not intend to did himself. Appellant asserted that should Martin to permit court testify because he had shooting observed after the and had taken written from him statements at the sheriffs office. had no participation Martin other the case. Martin, court stating
The trial excluded the of setting that “it’s kind man to it down or up straw knock something.”
Appellant proffered following summary for the record Martin’s proposed testimony: is
His name David Martin. He was to obtain a instructed full from if he Clay willing give statement Mr. one. give He indicated he would one. He was read standard rights. is approximately pages Miranda The statement four later, long in Martin’s About minutes handwriting. thirty Clay questions. Martin returned some and asked more interim, Clay presence During thirty minute Martin, Clay’s for a second or two. except maybe process entire was somber and throughout demeanor *14 Martin. Clay best to quiet. Those two words described Clay cooperative. defense, in his and was entitled to call witnesses
Appellant court to have excluded Martin no reason for the trial we find was entitled to make as a witness. The Commonwealth court any questions. The objections improper appropriate objection and we would upon specific could then have ruled have a record to review. stated this principles previously the same
Under court’s error was must determine whether the opinion, we harmless. trial, behalf. testified on his own appellant
Later in the to Martin. agreed that he to make statement He testified statement; taking the rights him his before Martin read him. against him he said could be used anything Martin told took everything right. Martin got Martin took his time and later, some additional came back and asked one statement and rights his and a signed paper waiving questions. Appellant Appellant told consenting to a search of his house. statement and felt terrible gun know the was loaded Martin he did not the statement Appellant what had admitted about happened. of force or without threats freely voluntarily given trial, in the anyone. Later any coercion of kind from into the evidence without were introduced written statements objection. testified that previously Powell had
Lieutenant up “shook or department appearing arrived at the sheriffs with privately Appellant speak asked upset. shaken” and his gave killing his wife. Powell and admitted officers make sure the law enforcement key to Powell to house showed the house. This evidence could enter wife, that he was shooting to admit sought police out the upset. visibly shaken and that he was cooperative, Martin’s testimony would have been corroborative of appellant’s testimony but cumulative of Powell’s testimony. “[C]orroborative testimony testimony and cumulative are the same thing. Cumulative testimony repetitive testimony is what restates has been said already nothing and adds it. It is testimony of the same kind and character as that already given.” Massey 230 Va. (1985). 337 S.E.2d merely “[W]here evidence is cumulative its may Yet, introduction limited the court. because right constitutional to call for evidence in one’s favor, even cumulative evidence should sometimes be admit ted. Where is material ‘even though cumulative to some it extent’ should nonetheless be considered.” Id.
Corroborative evidence is evidence that does not ema
mouth,
nate from the defendant’s
does not
wholly
rest
upon
the defendant’s credibility, but
is
to,
evidence that adds
*15
strengthens,
and confirms defendant’s testimony. See Mas
sey,
442-43,
230
758;
Va. at
337 S.E.2d at
see also Proctor v.
Beach,
Town
28,
Colonial
18 Va.App.
(1994);
Accordingly, the trial court’s judgment is affirmed. Affirmed.
668
ELDER, concurring, in in Judge, part, dissenting, part: However, I I I majority opinion. concur Part I Although agree dissent from Parts II and III. respectfully in admitting hearsay the trial erred the victim’s court Burns Ragland statements Thelma and Carlos Martin, I excluding Deputy disagree with the that these were majority’s conclusion errors harmless. as repeatedly We have held follows: Virginia, In is it “[w]hen non-constitutional error harmless plainly appears at given from the record and evidence trial a fair trial on the merits parties that the have had justice § has 8.01-678 and substantial been reached.” Code added). fair trial on the merits and substan- (emphasis “[A] at justice” tial are not achieved if an error trial has affected 8.01-678, § crimi- Consequently, the verdict. under Code plainly appears nal must be unless “it conviction reversed given from the and the at trial that” record evidence An error does error did not affect verdict. affect conclude, a reviewing usurping verdict court can without that, function, error not jury’s finding fact occurred, the verdict would have been same. 1005, 1003, 407
Lavinder (en added). (1991) banc) 910, 911 (emphasis S.E.2d Where evidence, we hold improperly the error involves admitted merely is error harmless when cumulative See Freeman v. Common- other, properly admitted evidence. wealth, (1982). Thus, 223 Va. S.E.2d *16 “ as its testimony objectionable hearsay, is though ‘[e]ven is error the content of the extra- admission harmless when clearly by competent judicial is established other declaration ” Commonwealth, Va.App. 906, 911, v. 12 407 evidence.’ West (1991) 219 (quoting Schindel 25 S.E.2d (1979)). 814, 817, Conversely, 252 S.E.2d 304 Va. may be harmless of evidence also erroneous exclusion by is by that evidence established sought proved fact other, evidence. properly admitted
Here, I trial court errone- agree majority with the that the the victim’s statements ously testimony regarding admitted planned that she to move to North Carolina because she was However, appellant might afraid of what do to her. unlike the majority, I also that admission of would hold the erroneous Although prop- these statements was harmless. evidence kill erly proved appellant admitted that had threatened to occasion, wife on one the admission of her statements prior that she was afraid of him to his threat gave weight by added providing evidence that she believed the threat. Evidence victim, presumably appellant as someone who knew well, strengthened believed the threat probative value the threat itself and could have affected the jury’s finding regarding at appellant’s state mind the time I shooting. would hold that the evidence that wife feared was not cumulative of properly other admit- Therefore, conclude, ted I may evidence. do not believe we function, that, “without usurping jury’s finding fact occurred, the error not the verdict would have been the same.” Lavinder, at at S.E.2d 911.
I agree also with the majority’s holding that the trial court erroneously Deputy excluded Martin’s regarding appellant’s demeanor willingness cooperate after the however, shooting. Again, I would hold that the erroneous exclusion of this evidence was not harmless. Martin’s testimo- ny proffered by appellant merely as was not cumulative of testimony. Lieutenant testimony, Powell’s Powell’s as ob- served majority, appellant sought established out police to shooting visibly admit his wife and that he was However, upset. testimony which, shaken and in- Powell’s — cross-examination, cluding only spans pages ap- three (four pendix pages transcript) that Powell’s —indicates contact with appellant appellant’s was limited to the time of police initial arrival at the station. Once told Powell he had shot his wife in their home and did not know whether gave key, she was still alive and Powell Powell asked the dispatcher to call the squad “[got] somebody rescue to sit *17 [appellant] with while went out to [appellant’s] [Powell] house.” Powell related no contact appellant. further with testimony Martin’s would have established that appellant re- mained Martin’s for more than company “thirty minutes hour,” an during which time he continued to cooperate, did counsel, invoke his to silence or right gave lengthy regarding statement shooting remaining while somber and quiet. evidence, hearing erroneously
Without jury excluded murder, convicted degree required second which finding that shooting acted with malice his wife. However, Deputy testimony concerning appellant’s Martin’s cooperation support demeanor and continued lends to appel- which, shooting lant’s was an accident believed, supported appellant’s would have conviction for the evidence, manslaughter. Although lesser offense of all the including Martin’s Deputy testimony, supported appellant’s murder, degree conviction for second I do not believe that we conclude, function, can without fact usurping jury’s finding that the error did not affect the verdict. reasons, respectfully
For these I II dissent from Parts III majority’s opinion, and I would reverse and remand for a new trial.
Record No. 1937-98-2. Appeals Virginia, Court of
Richmond.
Oct. 1999.