Blackman v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Felton and Kelsey
Argued at Chesapeake, Virginia

GORDON O’NEIL BLACKMAN
OPINION BY
v. Record No. 3241-03-1 JUDGE D. ARTHUR KELSEY
MAY 24, 2005
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Jr., Judge

Andrew M. Sacks (Sacks & Sacks, P.C., on briefs), for appellant.

Stephen R. McCullough, Assistant Attorney General (Judith
Williams Jagdmann, Attorney General, on brief), for appellee.

A jury convicted Gordon O’Neil Blackman of first-degree murder and use of a firearm in

the commission of a felony. On appeal, Blackman argues the trial court violated his Sixth

Amendment rights under the Confrontation Clause by not granting a mistrial after a witness

testified to statements made by Ryan Sullivan, a codefendant, that allegedly incriminated

Blackman. We affirm Blackman’s conviction, finding no error in the trial court’s refusal to

declare a mistrial.

I.

One afternoon in September 1999, Timothy Puckett drove to a shopping center in

Chesapeake to meet a friend, John Jordan, at NAPA Auto Parts. Also located in the shopping

center was the Village Grill, where Ryan Sullivan (Blackman’s cousin) and Randy Nurse

(Blackman’s brother) both worked. As Puckett was pulling into the parking lot, a gray Toyota

car cut him off. A fight broke out between Puckett and the two occupants of the Toyota. Jordan

arrived and tried to break up the fight.
 One of the occupants of the Toyota fired a gun, and Puckett fell to the ground. The men

began kicking Puckett in the head and ribs as he lay on the ground. The men then “walked back

to the car like they had done nothing” and drove away in the Toyota. Puckett later died from his

gunshot wound.

Five witnesses, including Jordan, identified Blackman at trial as the man who shot

Puckett. The two men in the Toyota, witnesses testified, were Blackman and Sullivan. Ballistics

testing showed that a bullet found at the crime scene had been fired from a weapon with the

“same general rifling class characteristics” as a handgun recovered from Sullivan’s home.

A grand jury indicted both Blackman and Sullivan. The case proceeded to a joint trial

against both codefendants. At trial, Blackman took the stand and claimed he was in

Pennsylvania on the day of the shooting. He had nothing to do with the murder, Blackman

testified.

Sullivan likewise took the stand in his own defense. He corroborated Blackman’s alibi.

Sullivan also denied any involvement in the murder, saying he drove up to the crime scene only

after the shooting had taken place. During his examination, Sullivan was asked if he had made

any statements to an inmate, Anthony Wilson, while in jail awaiting trial:

Prosecutor: Now, sir, I would like to call your attention to a period of
time between October 8 through November 15, 1999.

Sullivan: Yes, sir.

Prosecutor: And I would like to ask you that during that time, do you
remember talking to an individual by the name of
Anthony Wilson and telling him that you had been
involved in a murder at the Village Grill, that you had
left, that you had come back to make it look like you
weren’t involved. Do you remember that?

Sullivan: No, sir. I never told – never had that discussion with
anyone, sir.

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 Prosecutor: Do you also remember telling him during this period of
time that the police had come by your house numerous
times? Do you remember that?

Sullivan: I never had no such discussion with anyone, sir.

Blackman’s counsel then cross-examined Sullivan. During a break in this examination,

Blackman’s counsel sought leave to ask questions seeking to bolster Sullivan’s testimony,

particularly since the prosecution had “challenged him with a statement from Mr. Anthony

Wilson.” The trial judge permitted some, but not all, of Blackman’s questions. During the

remainder of cross-examination, Blackman’s counsel asked no specific questions about any

statement to Wilson. Counsel did confirm, however, that Sullivan was incarcerated during the

time frame of the statement he denied making.

Counsel: Were you incarcerated as a result of that offense
from October 8 to November 15, awaiting pretrial
proceedings?

Sullivan: Yes, sir.

Sullivan was then questioned on redirect by his own counsel and then again on recross by

Blackman’s counsel. Neither inquired further about the alleged statement Sullivan made to

Wilson in jail. After Sullivan left the stand, Blackman’s counsel asked for leave to recall

Sullivan for further questioning. The trial judge allowed Blackman’s counsel to recall Sullivan

“as your witness.” Sullivan’s counsel raised no objection. Blackman’s counsel questioned

Sullivan again, but did not ask about the statement Sullivan had previously denied making.

After the defense rested, the Commonwealth called Anthony Wilson in its rebuttal case

against Sullivan. At Blackman’s request, the trial judge questioned Wilson outside the presence

of the jury. Wilson said that, while in jail, Sullivan admitted he “was involved in a murder” and

then left the scene of the crime to take “his cousin somewhere.” Because Sullivan and Blackman

were cousins, the trial judge asked Wilson if Sullivan said anything more specific about his

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cousin. “We didn’t get into his cousin,” Wilson answered. The prosecutor again noted to the

court that he offered this testimony only against Sullivan. To avoid any conflict with Blackman,

the prosecutor asked that Wilson be instructed not to make any reference to Sullivan’s cousin.

Blackman’s counsel objected to any testimony from Wilson, claiming that Wilson’s

testimony raised “a serious problem” with Blackman’s confrontation rights. After further

argument, Blackman’s counsel continued to press a hearsay objection but said he was “giving up

the 6th Amendment issue” in light of the prosecutor’s agreement to bar Wilson from making any

indirect reference to Blackman.

At the joint request of all parties, the trial judge instructed Wilson not to mention

anything about Sullivan’s cousin. The judge also gave a cautionary instruction directing the

jurors not to consider Wilson’s testimony in the case against Blackman:

The Court instructs the jury that the testimony of the next witness,
Anthony Wilson, is being offered for your consideration in the
case against Ryan Sullivan. You are specifically instructed that
you cannot consider his testimony in any way in the case against
Gordon Blackman.

During his testimony, Wilson stated that Sullivan admitted being “involved in a murder out in

front of his club.” After the murder, Wilson recalled, Sullivan said he “left, him and his cousin.

He took his cousin somewhere, and he came back, you know like he wasn’t involved.”

Sullivan’s counsel objected, and the trial judge sustained the objection.

Blackman’s trial counsel then moved for a mistrial, arguing that the “jury has now been

tainted by evidence that it never should have heard. It’s created a full-blown constitutional

problem, and the only remedy is a mistrial.” The prosecutor disagreed, arguing that the problem

could be “easily cured with a curative instruction.” The trial judge agreed, holding that the initial

cautionary instruction coupled with any curative instruction Blackman wished to offer would

suffice as a remedy. The judge invited Blackman’s counsel to proffer a curative instruction.

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Blackman’s counsel offered none, explaining there “is nothing you can say in my professional

judgment.”

After cross-examining Wilson, Blackman’s counsel asked for leave to present surrebuttal

evidence seeking to challenge Wilson’s credibility by contradicting testimony he gave about his

criminal record. The trial judge allowed the surrebuttal evidence. At no time did Blackman seek

to recall Sullivan to the stand during surrebuttal.

The jury found Blackman guilty of first-degree murder and use of a firearm in the

commission of a felony. Sullivan was convicted of malicious wounding. On appeal, Blackman

argues that Wilson’s testimony violated his rights under the Confrontation Clause of the Sixth

Amendment. Nothing short of a mistrial, Blackman contends, could have cured this “reversible

constitutional error.”

II.

The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal

defendant “to be confronted with the witnesses against him.” U.S. Const. Amend. VI, cl. 3. On

appeal, Blackman primarily relies on two cases in support of his argument that Wilson’s

testimony violated the Confrontation Clause: Bruton v. United States, 391 U.S. 123 (1968), and

Crawford v. Washington, 541 U.S. 36 (2004). In our opinion, neither case supports Blackman’s

argument.1

1
Given that we find no Sixth Amendment violation, we do not address the
Commonwealth’s alternative harmless error argument. See Dearing v. Commonwealth, 259 Va.
117, 123-24, 524 S.E.2d 121, 125 (2000) (finding the Confrontation Clause error, in admitting a
codefendant’s statement, was “harmless beyond a reasonable doubt” due to the additional
overwhelming evidence).

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 A. THE BRUTON DOCTRINE & THE TESTIFYING DECLARANT

The United States Supreme Court in Bruton held that at a joint trial, the admission into

evidence of a nontestifying codefendant’s out-of-court confession violates the Confrontation

Clause if the confession incriminates the other defendant. A trial court cannot remedy the

constitutional violation of this magnitude with a curative instruction, Bruton found, because the

instruction cannot be viewed “as an adequate substitute” for the loss of the opportunity to cross-

examine the declarant. Bruton, 391 U.S. at 137; see also Cruz v. New York, 481 U.S. 186,

193-94 (1987); United States v. Truslow, 530 F.2d 257, 260 (4th Cir. 1975).

The Bruton principle, however, applies only when the codefendant does not testify at

trial. See Nelson v. O’Neil, 402 U.S. 622, 628 (1971) (explaining that the “specific holding” of

Bruton was limited to situations where the codefendant could not be cross-examined because he

“did not take the stand”); California v. Green, 399 U.S. 149, 158 (1970). Thus, when “a

codefendant takes the stand in his own defense, denies making an alleged out-of-court statement

implicating the defendant, and proceeds to testify favorably to the defendant concerning the

underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth

Amendments.” Nelson, 402 U.S. at 629-30; see also Richardson v. Marsh, 481 U.S. 200, 206

(1987) (noting that “the pretrial confession of one cannot be admitted against the other unless the

confessing defendant takes the stand”).2

That is precisely what happened here. Sullivan took the stand in his own defense. He

denied making the statement to Wilson and testified he “never had that discussion with anyone.”

2
See also United States v. Howard, 590 F.2d 564, 569 (4th Cir. 1979) (holding that
“Bruton has been limited to situations where the co-defendant/declarant elects not to testify”);
Joyner v. United States, 547 F.2d 1199, 1201 (4th Cir. 1977) (holding the Bruton doctrine
inapplicable where codefendant “elected to testify and was available for cross-examination”).

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Sullivan also testified favorably to Blackman and confirmed his alibi. Blackman’s counsel

questioned Wilson on cross and again on recross. After Wilson was excused, Blackman recalled

Sullivan to the stand for further questioning.

Sullivan was not merely available to take the stand as a witness. He was a witness. He

was examined not once, but three times, by Blackman’s counsel. Blackman’s assertion that

Bruton involved “almost the identical facts as here” overlooks this dispositive dissimilarity

between the two cases.3 In short, the fact that Sullivan “was on the witness stand and subject to

cross-examination made Bruton’s exclusionary rule inapplicable.” United States v. Bodden, 736

F.2d 142, 144 n.1 (4th Cir. 1984); see also Paden v. Commonwealth, 259 Va. 595, 596-97, 529

S.E.2d 792, 793 (2000) (rejecting claim of unavailability when the witness was “present at trial”

but had not expressly invoked his Fifth Amendment right against self-incrimination).

We similarly reject Blackman’s assertion that the Fifth Amendment precluded him, had

he chosen to do so, from recalling Sullivan to the stand after Wilson’s testimony. “Taking the

stand to testify on the merits in a criminal proceeding is a once-and-for-all waiver of the

privilege.” John L. Costello, Virginia Criminal Law & Procedure § 43.7-3, at 588 (3d ed. 2002).

In other words, a “testifying accused waives his privilege against self-incrimination ‘absolutely

and in all respects.’” Wells v. Commonwealth, 32 Va. App. 775, 785-86, 531 S.E.2d 16, 21

(2000) (emphasis in original) (quoting Thaniel v. Commonwealth, 132 Va. 795, 806, 111 S.E.

259, 262 (1922)); see also Code § 19.2-268 (providing that an “accused may be sworn and

3
In light of our holding, we need not decide whether Sullivan’s reference to “his cousin”
directly incriminated Blackman “on its face.” See Richardson, 481 U.S. at 208-09 (finding as
long as the non-testifying defendant’s statement does not on its face inculpate the codefendant, it
is admissible even if it becomes incriminating when linked with other evidence); United States v.
Locklear, 24 F.3d 641, 646 (4th Cir. 1994) (“A Bruton problem exists only to the extent that the
[non-testifying] codefendant’s statement in question, on its face, implicates the defendant.”).

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examined in his own behalf, and if so sworn and examined, he shall be deemed to have waived

his privilege of not giving evidence against himself, and shall be subject to cross-examination as

any other witness”). Settled principles of subject-matter waiver explain why:

It is well established that a witness, in a single proceeding, may not
testify voluntarily about a subject and then invoke the privilege
against self-incrimination when questioned about the details. The
privilege is waived for the matters to which the witness testifies,
and the scope of the waiver is determined by the scope of relevant
cross-examination. The witness himself, certainly if he is a party,
determines the area of disclosure and therefore of inquiry.

Mitchell v. United States, 526 U.S. 314, 321 (1999) (citations and internal quotation marks

omitted); see also Charles E. Friend, The Law Of Evidence In Virginia § 7-7(b)(1)(3), at 269

(6th ed. 2003) (noting that the scope of subject-matter waiver includes “all relevant matters”

arising out of the accused’s testimony on direct examination).

Perhaps so, Blackman responds, but in this case the trial judge made an “implied”

holding of unavailability binding on appeal as the “law of the case.” In addition, Blackman

contends, we must apply the Bruton doctrine even to a testifying declarant (no matter what the

law says on the subject) because the prosecutor never raised this point at trial and thus waived it

on appeal. We find neither assertion persuasive.

First, nothing in the record suggests the trial judge implicitly held that Sullivan was

unavailable as a witness ⎯ a counterintuitive conclusion, at best, given that Sullivan had already

been a witness on his own behalf, had separately appeared as a witness for Blackman, and was

present in the courtroom throughout the joint trial. It is entirely more likely the judge merely

accepted the self-imposed limitations placed on Wilson’s testimony that the party offering it, the

Commonwealth, imposed upon itself. By denying Blackman’s mistrial motion and relying

instead on a curative instruction (a wholly insufficient remedy under Bruton), the trial judge did

the opposite of what his supposed implicit holding would have legally dictated.

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 Second, as to the prosecutor’s alleged waiver, the procedural default principles of Rule

5A:18 apply only to grounds asserted as a “basis for reversal” of the trial court’s judgment. See

Harris v. Commonwealth, 39 Va. App. 670, 675, 576 S.E.2d 228, 231 (2003) (en banc). An

appellate court cannot vacate a criminal conviction that violates no recognizable legal principle

simply on the ground that the prosecutor (or, for that matter, the trial judge) did not articulate the

proper legal basis for it. Thus, an appellee may argue for the first time on appeal any legal

ground in support of a judgment so long as it does not require new factual determinations, see id.

at 676, 576 S.E.2d at 231, or involve an affirmative defense that must be “asserted in the

pleadings,” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963), or serve as a

subterfuge for a constitutionally prohibited cross-appeal in a criminal case, Hart v.

Commonwealth, 221 Va. 283, 290, 269 S.E.2d 806, 811 (1980).4 This disparity in treatment

under Rule 5A:18 between appellants and appellees stems from the presumption of correctness

of trial court rulings5 and the corresponding burden on appellants to rebut that presumption.6

4
See generally Schweiker v. Hogan, 457 U.S. 569, 585 n.24 (1982) (“The statutory
argument raised by the appellees, although not presented in the District Court, may be decided
on the basis of the record developed in that court.” (emphasis added)); W.G. Fairfield Co. v.
Occupational Safety & Health Review Comm., 285 F.3d 499, 504 (6th Cir. 2002); Glaxo Group
Ltd. v. TorPharm, Inc., 153 F.3d 1366, 1371 (Fed. Cir. 1998).
5
See Crest v. Commonwealth, 40 Va. App. 165, 172 n.3, 578 S.E.2d 88, 91 n.3 (2003).
6
We likewise reject Blackman’s assertion at oral argument that the Commonwealth
conceded the issue on appeal as well. Before us, the Commonwealth argues that “this case goes
further than Paden [where no evidence suggested the declarant would take the Fifth and refuse to
testify] since the co-defendant in the case at bar had actually testified. Sullivan had been
available for cross-examination before; if he was suddenly unavailable, the record should have
been made to reflect this fact. Since the defendant failed to show that Sullivan was ‘unavailable’
⎯ a prerequisite to a finding of a Confrontation violation ⎯ his Confrontation argument fails.”
Appellee’s Brief at 20-21. In its harmless error analysis, the Commonwealth continues: “In the
present case, Sullivan not only testified, he specifically denied making the statement attributed to
him by Wilson. Furthermore, Blackman had the opportunity to cross-examine Sullivan.

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 B. CRAWFORD & TESTIMONIAL EVIDENCE

Blackman argues that Crawford “essentially gutted the older constructs” and instead

“keyed Sixth Amendment jurisprudence principally to whether the statement being offered is

testimonial or not.” From there, Blackman reasons that Sullivan’s statement in the jail to Wilson

was testimonial under Crawford. Sullivan’s availability or unavailability to take the stand,

Blackman then concludes, no longer matters under Crawford.

To begin with, we question whether an inmate-to-inmate conversation (wholly

unconnected to any police inquiry) could be fairly characterized as testimonial. Crawford

identifies the “core class” of testimonial evidence to include such things as ex parte testimony,

custodial interrogations, affidavits, confessions to police, depositions, prior testimony before a

grand jury or at a preliminary hearing, or “similar pretrial statements that declarants would

reasonably expect to be used prosecutorially.” Crawford, 541 U.S. at 51-52 (emphasis added).7

It is hardly likely Sullivan expected his confession to Wilson would be “used prosecutorially” at

trial. Id. at 51.

In this case, however, we need not stake out the exact boundaries of testimonial evidence

under Crawford. Underlying Blackman’s argument is an unacknowledged, but logically

necessary, assumption that Crawford somehow changed the settled view that the Confrontation

Clause is not violated when the codefendant declarant actually testifies at trial. See Nelson, 402

Although this cross-examination occurred before Wilson actually testified, nothing prevented the
defendant from questioning Sullivan concerning the statement he made to Wilson.” Id. at 26.
7
This description would not directly affect Bruton because the codefendant in that case
gave an in-custody confession to law enforcement officers. See Crawford, 541 U.S. at 57 (citing
Bruton as an example of properly suppressed testimonial evidence). The same can be said of
Lilly v. Virginia, 527 U.S. 116, 134 (1999) (plurality opinion), rev’g 255 Va. 558, 499 S.E.2d
522 (1998), which involved a codefendant’s confession in response to police interrogation.

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U.S. at 628; Green, 399 U.S. at 158; Howard, 590 F.2d at 569; Joyner, 547 F.2d at 1201.8 For all

its novelty, on the issue in contest here, Crawford confirms the traditional view that the

Confrontation Clause “does not bar admission of a statement so long as the declarant is present at

trial to defend or explain it.” Crawford, 541 U.S. at 59 n.9. Seeking to emphasize the point, the

majority in Crawford said, “we reiterate that, when the declarant appears for cross-examination

at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial

statements.” Id. (citing Green, 399 U.S. at 162) (emphasis added); see People v. Martinez, 810

N.E.2d 199, 212 (Ill. App. Ct. 2004) (holding no Crawford violation occurs where the declarant

was “available in court and on the witness stand”). For this reason, Crawford supports the trial

judge’s decision not to declare a mistrial.

III.

Because no Confrontation Clause violation took place as a matter of law, there was no

infirmity of constitutional magnitude requiring the remedy of a mistrial. We thus affirm

Blackman’s conviction for first-degree murder and use of a firearm in the commission of a

felony.

Affirmed.

8
For similar reasons, we do not address whether Crawford ejects from Blackman’s
argument any claim of any constitutional magnitude ⎯ leaving him with a mere hearsay
objection under Virginia evidentiary law which (unlike a Bruton violation) could have been
cured with a cautionary instruction. Cf. Crawford, 541 U.S. at 61 (recognizing that its analysis
“casts doubt” on any further application of the Confrontation Clause to nontestimonial evidence).

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