COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Alston
Argued by teleconference
MICHELLE DIANE LINDSEY
MEMORANDUM OPINION * BY
v. Record No. 2691-09-2 JUDGE LARRY G. ELDER
MARCH 1, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Horace A. Revercomb, III, Judge
Andrea C. Long (Brian S. Foreman; Bowen, Champlin, Foreman &
Rockecharlie, on brief), for appellant.
Donald E. Jeffrey, III, Senior Assistant Attorney General
(Kenneth T. Cuccinelli, II, Attorney General, on brief), for
appellee.
Michelle Diane Lindsey (appellant) appeals from her jury trial convictions for obtaining
$200 or more by false pretenses in violation of Code § 18.2-178 and giving material false
testimony under oath in violation of Code § 18.2-434. On appeal, she contends the trial court
erred in refusing to allow her to cross-examine one of the Commonwealth’s witnesses, who had
filed a cross-claim against her in a related civil suit, for possible bias. The Commonwealth
contends that appellant failed to preserve this assignment of error for appeal, that it lacks merit,
and that, even if error, it was harmless. We hold that appellant preserved the issue for appeal,
that the trial court’s limitation on cross-examination was error, and that the error was harmless.
Thus, we affirm the challenged convictions.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
The evidence, viewed in the light most favorable to the Commonwealth, see, e.g., Parker
v. Commonwealth, 275 Va. 150, 155, 654 S.E.2d 580, 583 (2008), establishes that in the spring
of 2007, while appellant was employed as a paralegal for a law firm, she and her husband
contracted to purchase a home. A few weeks later, appellant went to work for a different
employer, attorney John Goots, and Goots agreed to serve as appellant’s attorney for purposes of
the real estate closing. Goots, believing appellant had deposited in his firm’s real estate escrow
account funds in excess of the amount needed for closing, authorized appellant to write two
checks to herself from that account for the anticipated excess. Goots signed the checks, which
were for the total amount of $4,540.82, and appellant cashed them. Unbeknownst to Goots, no
funds for appellant’s home purchase had been deposited in his escrow account at that time, and
no such funds ever were deposited in his escrow account. Also, although appellant took
possession of the residence, the seller never received appellant’s payment for it.
Following an investigation, appellant was charged, inter alia, with obtaining $200 or
more from Goots by false pretenses with an intent to defraud, and a hearing related to that charge
was scheduled. Appellant failed to appear for the hearing, and a capias for her arrest was issued.
Appellant contacted the sheriff’s department and made arrangements to turn herself in a few days
later. When she appeared before a magistrate, she had a kerchief on her head and represented
under oath to the magistrate that she was then undergoing chemotherapy for cancer. She
presented a letter ostensibly from her treating physician, which purported to confirm the fact of
her treatment during the relevant time period. The magistrate accepted the letter as authentic and
released appellant on an unsecured bond. Following the Commonwealth’s receipt of information
leading it to believe the letter ostensibly from appellant’s treating physician was a forgery,
appellant was charged with giving material false testimony under oath.
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After appellant’s trial, conviction, and sentencing for the instant offenses, she noted this
appeal.
II. ANALYSIS
A. RESTRICTION OF CROSS-EXAMINATION FOR BIAS
“An accused has a right to cross-examine prosecution witnesses to show bias or
motivation[,] and that right, when not abused, is absolute. The right emanates from the
constitutional right to confront one’s accusers.” Brown v. Commonwealth, 246 Va. 460, 463-64,
437 S.E.2d 563, 564-65 (1993); see Davis v. Alaska, 415 U.S. 308, 315-18, 94 S. Ct. 1105,
1110-11, 39 L. Ed. 2d 347, 353-55 (1974) (holding the Sixth Amendment’s Confrontation
Clause requires a defendant to have some opportunity to show bias on the part of a prosecution
witness). “A successful showing of bias on the part of a witness would have a tendency to make
the facts to which he testified less probable in the eyes of the jury than it would be without such
testimony.” United States v. Abel, 469 U.S. 45, 51, 105 S. Ct. 465, 468, 83 L. Ed. 2d 450, 457
(1984). “So absolute is this right to cross-examine for bias that it takes precedence over other
rules of evidence and even over statutory enactments.” Charles E. Friend, The Law of Evidence
in Virginia § 4-6(a), at 157 (6th ed. 2003); see Davis, 415 U.S. at 318-19, 94 S. Ct. at 1111-12,
39 L. Ed. 2d at 355-56 (upholding right to cross-examine a prosecution witnesses about juvenile
offenses to show bias despite statute protecting juvenile matters from disclosure); Banks v.
Commonwealth, 16 Va. App. 959, 962, 434 S.E.2d 681, 683 (1993) (upholding admission of
“[e]vidence of specific acts of misconduct to show bias or motive to fabricate,” even though
inadmissible if offered merely for impeachment).
Here, when the Commonwealth objected to appellant’s attempt to inquire about the civil
charges proffered to be pending against attorney John Goots, one of the Commonwealth’s
primary witnesses, the trial court observed that it might be relevant to “a question of bias . . . or
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an interest in the subject matter.” Appellant’s counsel responded that “the jury has a right to
know when an individual who’s testifying has an interest in the sequence and series of events
about which they’re testifying[,] . . . a stake in the overall action.” Counsel proffered to the trial
court in more detail that appellant and Goots were co-defendants in a pending civil matter arising
out of the same real estate transaction from which appellant’s criminal charges stemmed and that
Goots, in fact, had filed a cross-claim against appellant in that matter. 1 Counsel argued further
that “proceedings indicate [Goots] had to pay $5000 for his malpractice carrier” and that, in that
context, as well, Goots “could benefit” if appellant were found guilty of the charged crimes.
These arguments make clear that appellant’s counsel preserved for appeal the claim that
evidence of the pending civil suit, Goots’ related claim against appellant, and his payment of
$5,000 to his malpractice carrier was relevant to whether Goots had an incentive to fabricate or
slant his testimony about the real estate transaction and appellant’s involvement therein. See
Rule 5A:18.
The record also establishes, on the merits, that the trial court erred in refusing to let
appellant cross-examine Goots about these issues in an attempt to show bias. The
Commonwealth argues the fact of appellant’s criminal responsibility, if any, would not be
admissible in the civil proceedings and, thus, that the trial court correctly ruled the pendency of
the civil proceedings against appellant and Goots was not relevant. We disagree with this
conclusion. The fact and nature of the civil charges against Goots were relevant at the criminal
trial to show Goots had a motive to implicate appellant in a way that would absolve Goots of any
potential liability in the civil suit. Regardless of whether evidence of appellant’s criminal
1
At trial, appellant’s counsel referred to Goots’ claim against appellant as a
counterclaim. However, if appellant and Goots were co-defendants as counsel also argued,
Goots’ claim against appellant was a cross-claim rather than a counterclaim. See Rules 3:9,
3:10. We therefore use the term cross-claim in this opinion.
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conviction would have been admissible in the civil trial, Goots was subject to impeachment on
cross-examination in the civil suit if he gave testimony at odds with his testimony in appellant’s
criminal trial. Further, appellant proffered that the real estate transaction had a financial impact
on Goots and his malpractice insurance coverage. Admission of evidence of the existence of the
civil charges against Goots in a suit in which appellant was a co-defendant, the cross-claim
Goots had filed against appellant in that same suit, and the impact the transaction had on Goots’
malpractice insurance would have provided a basis for appellant to argue Goots had motivation
to give less than truthful testimony at appellant’s criminal trial. Cf. Whittaker v.
Commonwealth, 217 Va. 966, 967, 234 S.E.2d 79, 81 (1977) (noting the fact that a witness
received lenient sentences in exchange for his testimony against a defendant is “highly relevant”
because it “lay[s] the predicate for an inference that the testimony . . . was biased and unreliable
because induced by considerations of self-interest”). The trial court’s reasoning that admission
of evidence concerning the existence of the civil suit was likely to confuse the jury was
insufficient to justify exclusion of this evidence to the extent it was probative of Goots’ possible
bias.
B. IMPACT OF THE ERROR
In all cases in which we determine error has occurred, “harmless-error review [is]
required.” Ferguson v. Commonwealth, 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990). Errors are
presumed harmful, and the Commonwealth bears the burden of proving the error was harmless.
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967).
The improper restriction of cross-examination is an error of constitutional magnitude. Delaware
v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686 (1986).
“‘[B]efore a federal constitutional error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt;’ otherwise the conviction under review
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must be set aside.” Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999)
(quoting Chapman, 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11).
“[O]ur analysis turns not on the evidence excluded . . . but on the evidence in the record,
viz., [the witness’] testimony, which was not fully subject to cross-examination.” Scott v.
Commonwealth, 25 Va. App. 36, 42, 486 S.E.2d 120, 123 (1997). “‘The correct inquiry is
whether, assuming that the damaging potential of the cross-examination were fully realized, [we]
might nonetheless say that the error was harmless beyond a reasonable doubt.’” Maynard v.
Commonwealth, 11 Va. App. 437, 448, 399 S.E.2d 635, 641 (1990) (en banc) (quoting Van
Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686). Important factors in this
analysis are “the importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the extent of cross-examination otherwise
permitted and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S.
at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686-87. “‘[H]armless error analysis . . . [is not] simply
a sufficiency of the evidence analysis.’” Williams v. Commonwealth, 32 Va. App. 395, 400, 528
S.E.2d 166, 169 (2000) (en banc) (quoting Hooker v. Commonwealth, 14 Va. App. 454, 457-58,
418 S.E.2d 343, 345 (1992)). “An error does not affect the verdict if we can determine, without
usurping the jury’s fact finding function, that, had the error not occurred, the verdict would have
been the same.” Cairns v. Commonwealth, 40 Va. App. 271, 286, 579 S.E.2d 340, 347 (2003);
see Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).
Appellant was convicted of obtaining money from John Goots by false pretenses and
giving material false testimony under oath before the magistrate. Code § 18.2-178 provides that
“[i]f any person obtain, by any false pretense or token, from any person, with intent to defraud,
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money[,] . . . he shall be deemed guilty of larceny thereof.” Parker, 275 Va. at 154, 654 S.E.2d
at 582. Conviction for this offense requires proof of the following four elements:
“(1) an intent to defraud; (2) an actual fraud; (3) use of false
pretenses for the purpose of perpetrating the fraud; and
(4) accomplishment of the fraud by means of the false pretenses
used for the purpose, that is, the false pretenses to some degree
must have induced the owner to part with his property.”
Id. (quoting Riegert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 807 (1977)).
The charge of depriving Goots of money by false pretenses hinged upon whether
appellant acted with an intent to defraud when she prepared the two checks payable to her from
Goots’ escrow account and obtained Goots’ signatures on those two checks, whether she made
false statements to Goots regarding the transfer of funds into his escrow account to cover those
checks, and, if so, whether those allegedly false statements induced Goots to sign the two checks.
The evidence tending to prove these things was wholly circumstantial, and the strongest
evidence of appellant’s guilt was provided by Goots himself. Nevertheless, the other evidence in
the record both (1) established Goots’ bias and (2) contradicted appellant’s testimony and
falsified documentary evidence to such an extent that we conclude the trial court’s error in
restricting appellant’s cross-examination of Goots was harmless beyond a reasonable doubt.
Appellant was the only witness impeached with a prior felony record, and other than Goots, none
of the other witnesses was shown to have an interest in the outcome of the case. Further, the
evidence admitted without objection established that appellant received more than $4,500 for
which Goots was responsible and that she had not paid him back, providing appellant with ample
evidence from which to argue Goots had reason to fabricate or slant his testimony.
Other evidence in the record showed appellant engaged in financial falsehoods, including
fabricating two documents, which both preceded and followed Goots’ involvement.
Circumstantial evidence in the record strongly implicated appellant in the forgery of the
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“Request for Verification of Deposit” form appellant faxed to real estate agent Lisa Atkinson,
which occurred weeks before she went to work for Goots. Although the form purported to
indicate an account in appellant’s name existed at the Navy Federal Credit Union (NFCU) in
April 2007 and contained a balance of over $400,000, appellant admitted she had no such
account at that time and had not had such an account for at least fifteen years. Although she
claimed her husband had an account there at the time and that she had power of attorney for him,
the form listed her, not her husband, as the account holder. Further, the form was faxed from her
office on April 18, 2007, but also bore a fax date of May 27, 2005, and time of 16:11, almost two
years earlier. When police executed a warrant for appellant’s residence in June 2007, they found
a “Request for Verification of Deposit” form with that same 2005 fax date and time and the
name of a different account holder. Both forms contained the signature of the same NFCU
employee, but on the apparently falsified form which listed appellant as the accountholder, that
NFCU employee’s printed name was misspelled, her job title and various other information was
incorrect or in an improper format, and that employee testified the form bearing appellant’s name
was not one that employee had prepared.
The evidence also established appellant told the seller’s agents several lies after appellant
took possession of the house and that appellant falsified an additional document related to the
transfer of funds for the purchase. She told the seller’s attorney the deeds had been recorded,
when in fact they had not. She told the seller’s attorney that the funds for the purchase had been
wired to the seller when in fact they had not. She also provided the seller with a document
purporting to confirm a wire transfer, when in fact no such transfer had occurred. She repeatedly
avoided the attorney’s phone calls and efforts to meet with her to complete the transfer of funds.
She ultimately fled from Goots’ office, where the seller’s attorney and Goots were waiting for
her, and she never returned for her personal property. Finally, when police, armed with a search
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warrant, came to the residence she had moved into but never paid for, appellant ignored their
knocking for fifteen minutes and hid when they entered the home.
In sum, although little evidence directly corroborates Goots’ testimony, the record
contains extensive evidence impeaching appellant’s testimony and establishing she falsified
documentary evidence on other critical points. Thus, the evidence as a whole, including
independent evidence establishing Goots had reason to be biased against appellant, allows us to
conclude beyond a reasonable doubt that the trial court’s erroneous restriction of appellant’s
right to cross-examine Goots regarding bias was harmless as to appellant’s conviction and
sentence for obtaining money by false pretenses.
Similarly, we conclude this error was harmless as to appellant’s conviction and sentence
for giving material false testimony under oath in violation of Code § 18.2-434. Goots was not a
witness to any of the events upon which this conviction was based. Goots’ testimony was
relevant to this conviction only because, since the two charges were tried together, appellant’s
credibility regarding the facts surrounding the false pretenses charge inferentially implicated her
credibility as to the facts surrounding the charge for giving material false testimony. Because we
conclude the error was harmless as to the false pretenses charge, we necessarily also hold it was
harmless as to the charge for giving material false testimony.
III.
For these reasons, we hold that although the trial court’s limitation on cross-examination
was error, that error was harmless. Thus, we affirm the challenged convictions.
Affirmed.
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