PRESENT: All the Justices
BRANDON LAVON LEWIS
v. Record No. 041390 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 3, 2005
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in approving the circuit court’s denial of a defendant’s
mistrial motion. The defendant alleged in the motion that his
right to a fair trial was prejudiced because the prosecutor, in
cross-examining a witness, implied that the witness and the
defendant had engaged in criminal activity unrelated to the
charged offenses.
Brandon Lavon Lewis was indicted by a grand jury on charges
including murder in the commission of attempted robbery, use of
a firearm while committing murder, and four counts of attempted
robbery. A jury convicted Lewis of the attempted robbery
charges and acquitted him of the remaining charges. The jury
fixed his punishment at five years’ imprisonment for each of the
four attempted robbery counts. The circuit court sentenced
Lewis in accordance with the jury verdict and set the sentences
to run consecutively with each other.
Lewis appealed his convictions to the Court of Appeals,
which reversed and dismissed one of the attempted robbery
convictions and affirmed the remaining convictions. Lewis v.
Commonwealth, 43 Va. App. 126, 137, 596 S.E.2d 542, 547 (2004).
As relevant to the case before us, the Court of Appeals
concluded that the circuit court did not err in refusing to
grant a mistrial because the prosecutor’s cross-examination of
Lewis’ alibi witness was proper impeachment and Lewis was not
prejudiced. Id. at 133, 596 S.E.2d at 545. Lewis appeals.
We will state the evidence in the light most favorable to
the Commonwealth, the prevailing party in the circuit court.
Tucker v. Commonwealth, 268 Va. 490, 492, 604 S.E.2d 66, 67
(2004); Murphy v. Commonwealth, 264 Va. 568, 570, 570 S.E.2d
836, 837 (2002). The evidence showed that in August 2002, Luis
Felipe Hernandez Sanchez was shot and killed during an attempted
armed robbery at his house. Also present were his brother,
Reymundo Hernandez Sanchez (Reymundo), and two friends, Fernando
Alvarado Vasquez and Reymundo Hernandez Acosta. The three
surviving witnesses told the police that the gunman and two
companions had entered the house and demanded money from all the
occupants. Sanchez was shot and killed by one of the three
assailants, who immediately fled from the scene.
After searching the crime scene, the police brought
Vasquez, Reymundo, and Acosta back to the police station. All
three men identified Tramaine “Stump” Stith from a photographic
“lineup” as one of the men who had been in the house. Stith
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initially denied any participation in the crimes, but later
admitted his involvement and identified Lewis and Travis Hester
as the other two assailants. The police later questioned
Hester, who also admitted his involvement and identified Lewis
as a participant in the offenses. Lewis was arrested the next
morning.
At trial, Lewis presented an alibi defense. He testified
that at the time the murder and attempted robberies took place,
he was at his grandmother’s house with two friends, El Hajj
Jones and Jason Carol. Lewis stated that he, Jones, and Carol
left the house and walked down the street to Sanchez’s house
after they observed flashing lights and ambulances nearby.
Jones testified as an alibi witness. On direct
examination, he stated that he and Lewis were “good friends” and
were “pretty tight.” Jones confirmed that he and Lewis were at
Lewis’ grandmother’s house when the crimes allegedly occurred.
On cross-examination, Jones admitted that he had been
convicted of distribution of cocaine. The prosecutor then asked
Jones, “Is that your connection [to Lewis]?” Defense counsel
objected to this last question, stating, “I hope it [does not]
mean what I think it means.” The circuit court overruled the
objection and allowed the prosecutor to proceed with the
question. The prosecutor asked again, “Is that the connection
with you and him?” Jones replied, “No, it isn’t.” The
3
prosecutor then repeated, “He’s not tied into that with you at
all?” Jones responded, “No, he isn’t.”
Defense counsel renewed his objection on the ground that
the prosecutor was attempting to imply that Lewis was involved
in a “drug case.” The circuit court again overruled the
objection, stating that because Jones admitted that he and Lewis
were good friends, the prosecutor could inquire about “what they
do together.” Defense counsel indicated to the court that he
intended to make a motion for a mistrial, and the court directed
counsel to “argue it later.”
At the conclusion of the evidence, defense counsel argued
the mistrial motion, asserting that the jury had been tainted by
the prosecutor’s implication in his cross-examination of Jones
that Lewis was involved in illegal drug-related activities.
Defense counsel noted that the prosecutor had not introduced
evidence regarding a motive for the attempted robberies, and
argued that it was improper for the prosecutor to suggest such a
motive by questioning Jones about other illegal activities. The
circuit court denied Lewis’ motion, ruling that the prosecutor’s
questions legitimately explored the extent of Jones’
relationship with Lewis.
Lewis appealed to the Court of Appeals, which held that the
circuit court did not err in denying the mistrial motion. 43
Va. App. at 133, 596 S.E.2d at 545. The Court reasoned that the
4
challenged line of inquiry was permissible to show bias. Id. at
132-33, 596 S.E.2d at 545. The Court concluded:
[T]he cross-examination of Jones, based on the
relationship between him and appellant, was proper
impeachment. Thus, the trial court did not err in
failing to sustain appellant’s objection to this line
of cross-examination or in failing to grant a
mistrial. Additionally, as Jones denied that his
relationship with appellant was based on the
distribution of cocaine, we cannot find as a matter of
law that appellant was “indelibly prejudiced.”
Id. at 133, 596 S.E.2d at 545 (citation omitted).
On appeal to this Court, Lewis argues that the circuit
court erred in denying his mistrial motion. He concedes that
the prosecutor was entitled to ask Jones if he had been
convicted of a felony, and the nature of any felony conviction,
but asserts that it was improper to allow without any foundation
questions concerning a connection between Lewis and Jones’
illegal activities. Lewis also contends that this line of
questioning prejudiced him.
In response, the Commonwealth argues that the prosecutor
did not elicit improper evidence because Jones denied that there
was any connection between his illegal activities and Lewis.
The Commonwealth also contends that because Jones denied any
relationship with Lewis other than their personal friendship,
Lewis was not prejudiced by the prosecutor’s questions and the
circuit court properly exercised its discretion in denying the
mistrial motion. We disagree with the Commonwealth’s arguments.
5
We review a challenge to a circuit court’s denial of a
mistrial motion under established principles. The decision
whether to grant a mistrial motion is a matter submitted to the
circuit court’s sound discretion. Lowe v. Cunningham, 268 Va.
268, 272, 601 S.E.2d 628, 630 (2004); Burns v. Commonwealth, 261
Va. 307, 341, 541 S.E.2d 872, 894 (2001); Cheng v. Commonwealth,
240 Va. 26, 40, 393 S.E.2d 599, 607 (1990).
In a criminal case, when defense counsel makes a motion for
a mistrial based on an allegedly prejudicial remark or question
by the prosecutor, the circuit court must make a factual
determination whether a defendant’s right to a fair trial has
been prejudiced, thereby requiring a new trial. Spencer v.
Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619 (1990);
LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657
(1983). This determination must be made in light of all the
circumstances in the case, including whether the jury was given
a cautionary instruction regarding any improper remark or
question. See Spencer, 204 Va. at 95, 393 S.E.2d at 619;
LeVasseur, 225 Va. at 589, 304 S.E.2d at 657.
In cases in which the jury was not given a cautionary
instruction, such as the present case, we apply an established
standard of review. When a circuit court has determined that a
defendant’s rights have not been prejudiced and has denied his
motion for a mistrial, our appellate review is confined to an
6
inquiry whether the circuit court abused its discretion and,
thus, was wrong as a matter of law. Burns, 261 Va. at 342, 541
S.E.2d at 895; Cheng, 240 Va. at 40, 393 S.E.2d at 607; Thomas
v. Wingold, 206 Va. 967, 975, 147 S.E.2d 116, 122 (1966).
In his mistrial motion, defense counsel argued that Lewis
was prejudiced by the prosecutor’s questions, which implied that
Lewis was involved in illegal drug-related activities without
any factual support for that proposition. The prosecutor
responded that because Jones admitted his conviction for cocaine
distribution and also stated that he and Lewis were very good
friends, “it’s reasonable to ask him if his bias includes the
fact that they were dealing drugs together. We have a murder
for money, that’s uncontradicted by anyone. One of the most
frequent motives for murder under those circumstances is to get
money for drugs . . . .”
This Court has often stated that the right to cross-examine
a witness to show bias or motivation to falsify, when not
abused, is absolute. See Brown v. Commonwealth, 246 Va. 460,
464, 437 S.E.2d 563, 564-65 (1993); Barker v. Commonwealth, 230
Va. 370, 376, 337 S.E.2d 729, 733-34 (1985); Hewitt v.
Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114 (1984); see
also Sawyer v. Comerci, 264 Va. 68, 78, 563 S.E.2d 748, 754
(2002). Although this right is broadly applied, it may not be
employed as a device to confuse the issues before the jury or to
7
imply the existence of evidence that the jury is not permitted
to consider.
Here, by the prosecutor’s own admission, he was attempting
to establish that Lewis was involved in illegal drug-related
activities and, thus, was more likely to have committed the
crimes charged in the indictments in order to obtain money to
buy drugs. Because on the present facts such a connection to
the offenses being tried would have been purely speculative, the
prosecutor’s questions amounted to nothing more than an attempt
to elicit inadmissible evidence of other crimes that were
unrelated to the crimes charged. See Commonwealth v. Minor, 267
Va. 166, 171-72, 591 S.E.2d 61, 65 (2004); Guill v.
Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998);
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970). This questioning was an abuse of the prosecutor’s
right of cross-examination to show bias because the prosecutor
already had established that Lewis and Jones were close friends,
and the questions at issue merely served to imply to the jury
the existence of evidence of other unrelated crimes committed by
Lewis. See Minor, 267 Va. at 172, 591 S.E.2d at 65; Guill, 255
Va. at 138, 495 S.E.2d at 491.
Because the prosecutor’s conduct was improper, we next
consider whether the circuit court abused its discretion in
denying Lewis’ mistrial motion. This question turns on our
8
determination whether the record shows as a matter of law that
Lewis’ right to a fair trial was prejudiced by the prosecutor’s
actions. See Burns, 261 Va. at 342, 541 S.E.2d at 894-95;
Spencer, 240 Va. at 95, 393 S.E.2d at 619; LeVasseur, 225 Va. at
589, 304 S.E.2d at 657.
We first observe that after being asked the questions at
issue, Jones denied that his relationship with Lewis was
connected to illegal drug-related activity. Thus, the jury
received evidence that Lewis was not involved with Jones in such
illegal activities.
We also must consider, however, the fact that the
prosecutor repeated the improper question, although Jones had
already answered it the first time by denying that Lewis was
associated with him in illegal activities. In addition, we are
required to acknowledge that we live in a “time of widespread
revulsion against the [illegal] use of controlled drugs.” King
v. Commonwealth, 217 Va. 912, 915, 234 S.E.2d 67, 69 (1977). In
light of this fact, we cannot avoid the conclusion that, as a
matter of law, Lewis’ right to a fair trial was prejudiced by
the prosecutor’s repeated and unfounded implication that Lewis
was engaged in illegal activity for which he was not on trial.
See id. Thus, we conclude that the circuit court abused its
discretion as a matter of law in denying Lewis’ mistrial motion,
9
and that the Court of Appeals erred in approving the circuit
court’s judgment.
For these reasons, we will reverse the part of the Court of
Appeals’ judgment that is before us. We will remand the case to
the Court of Appeals for further remand to the circuit court for
a new trial on the three remaining attempted robbery charges if
the Commonwealth so elects.
Reversed and remanded.
JUSTICE AGEE, with whom JUSTICE LACY AND JUSTICE KINSER join,
dissenting.
As the majority correctly notes, we review a trial court’s
denial of a mistrial motion for an abuse of discretion. See
Burns v. Commonwealth, 261 Va. 307, 341-42, 541 S.E.2d 872, 894-
95 (2001). We may overturn the judgment of the trial court only
if its denial of a mistrial motion was wrong as a matter of law.
Id. at 342, 541 S.E.2d at 895. The majority's conclusion is
based on two factors: that the line of questioning at issue was
improper 1 and that such questioning "indelibly prejudiced" Lewis'
right to a fair trial as a matter of law. Based on the record in
this case, I disagree with the majority opinion because I find
that the prosecution's line of questioning was proper
10
impeachment under the circumstances and did not prejudice Lewis'
right to a fair trial as a matter of law. Therefore, I conclude
that the trial court did not abuse its discretion in denying
Lewis' motion for a mistrial.
The prosecutor questioned Lewis’ alibi witness, El Hajj
Jones, about his prior conviction for selling cocaine and asked
whether Jones’ relationship with Lewis was connected to Jones’
illegal activity. Jones denied that his relationship with Lewis
was based on the distribution of cocaine.
Determining the truthfulness of an alibi witness is in the
province of the jury. See Lewis v. Commonwealth, 209 Va. 602,
606, 166 S.E.2d 248, 251 (1969). As such, “information as to
[the alibi witness’] bias can be of great assistance in making
such determinations.” Udemba v. Nicoli, 237 F.3d 8, 17 (1st Cir.
2001) (citing United States v. Balsam, 203 F.3d 72, 85 (1st Cir.
2000)). Bias can be defined, broadly speaking, as "the
relationship between a party and a witness which might lead the
witness to slant, unconsciously or otherwise, his testimony in
favor of or against a party.” United States v. McNatt, 931 F.2d
251, 256 (4th Cir. 1991) (citation omitted).
1
Lewis refers to the questions at issue as "improper
impeachment" but did not assign error to the trial court's
failure to strike the objectionable question and answer. Error
was assigned only to the trial court's denial of the mistrial.
Nevertheless, I address the issue in light of the majority
opinion.
11
In this case, the prosecutor asked whether Jones’
relationship with Lewis was connected to Jones’ cocaine
distribution business. The majority concludes that
[t]his questioning was an abuse of the prosecutor’s
right of cross-examination to show bias because the
prosecutor already had established that Lewis and
Jones were close friends, and the questions at issue
merely served to imply to the jury the existence of
evidence of other unrelated crimes committed by Lewis.
This Court, however, has allowed cross-examination of a defense
witness about other crimes with which the defendant may have
been involved if such evidence is “related to the credibility of
[the witness] and the weight which should be given [his]
testimony.” Adams v. Commonwealth, 201 Va. 321, 326, 111 S.E.2d
396, 399-400 (1959). See also Patterson v. Commonwealth, 222
Va. 653, 663, 283 S.E.2d 212, 218 (1981) (the testimony of a
witness which referred to prior unrelated crimes of the
defendant was admissible because it bore on the witness’
credibility); Largin v. Commonwealth, 215 Va. 318, 319, 208
S.E.2d 775, 776 (1974) (exposing defense witness as mother of
defendant’s illegitimate child did not have the effect of
accusing the defendant of the misdemeanor of fornication, but
was evidence of the witness’ bias in favor of the defendant).
12
See also People v. Kaurish, 802 P.2d 278, 289-90 (Cal. 1990). 2
Jones’ testimony provided a complete alibi for Lewis. In
that circumstance, the trial court was not wrong, as a matter of
law, to permit limited questioning by the prosecutor to test
Jones for bias in the formulation of his testimony. The trial
court accurately observed that
when the Defense calls a witness, that is an alibi
witness, a convicted felony [sic], acknowledged that
he had been convicted of selling drugs, stated that
he’s good friends with the Defendant, I certainly
think it’s absolutely legitimate for him, the cross-
examiner, to go into that to find out the extent of
their relationship or bias.
Are you in business together? Do you work
together? Do you do anything together? What is your
relationship? What is your association? And explore
that all for bias.
Thus, I conclude, as did the Court of Appeals, that the
"improper impeachment" of which Lewis complains, was not
improper. Because this impeachment evidence was not improper,
there was no basis to grant the motion for mistrial.
2
In People v. Kaurish, 802 P.2d 278, 289-90 (Cal. 1990),
the Supreme Court of California found that a “prosecutor’s
comments during closing argument on defendant’s drug dealing
were not misconduct [because they were admitted] for the
legitimate purpose of discrediting the testimony of [the
defendant’s alibi witness].” The alibi witness testified that
he saw the defendant leave the victim’s house before the murder
took place. Id. at 290. The Court found that “[t]he
prosecution was attempting to show that [the alibi witness],
defendant, and their mutual friend . . . had been involved in a
drug-dealing operation, and that this involvement gave [the
alibi witness] a motive to lie.” Id.
13
Further, the allegedly prejudicial event did not as a
matter of law "indelibly prejudice[]" Lewis. 3 The majority
opinion does not appear to attach indelible prejudice to the
prosecutor’s initial question: “Is that the connection with you
and him?” However, when the subsequent question, “He’s not tied
into that with you at all?” is asked, the indelible prejudice
arises. In the context of a multi-faceted trial, particularly
where the witness’ immediate and unequivocal denial is
uncontested, an appellate finding of indelible prejudice should
not be axiomatic. There should be a clear nexus to “indelible
prejudice” which is not demonstrated in this case. “When a
motion for mistrial is made, based upon an allegedly prejudicial
event, the trial court must make an initial factual
determination, in light of all the circumstances of the case,
whether the defendant’s rights are so ‘indelibly prejudiced’ as
to necessitate a new trial.” Spencer v. Commonwealth, 240 Va.
78, 95, 393 S.E.2d 609, 619 (1990) (citation omitted). Accord
Green v. Commonwealth, 266 Va. 81, 102, 580 S.E.2d 834,846
(2003).
3
As the Court of Appeals noted, Lewis may have been
entitled to a cautionary instruction. Lewis v. Commonwealth, 43
Va. App. 126, 129 n.1, 596 S.E.2d 542, 544 n.1 (2004). This
Court has noted, however, that when a party “[makes] no request
for a cautionary instruction, its omission does not constitute
reversible error.” Largin v. Commonwealth, 215 Va. 318, 321,
208 S.E.2d 775, 777 (1974). Lewis did not request a cautionary
instruction.
14
I conclude the trial court did not abuse its discretion as
a matter of law and there is insufficient ground to find
indelible prejudice. Accordingly, I respectfully dissent and
would affirm the judgment of the Court of Appeals.
15