Luck v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia

MICHAEL WAYNE LUCK
OPINION BY
v. Record No. 0196-98-2 JUDGE MARVIN F. COLE
JUNE 15, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge

Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission of Virginia, on
briefs), for appellant.

Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.

Appellant, Michael Wayne Luck, was tried by a Spotsylvania

County jury for the first degree murder of William Smith

(Smith), the felonious use of a firearm in the murder of Smith,

and the robbery of Smith. The jury found appellant guilty of

the charged offenses. The trial judge sentenced appellant, in

accordance with the jury's verdict, to sixty-eight years of

imprisonment.

On appeal, appellant challenges the trial judge's refusal

to admit evidence of Smith's prior convictions of petit larceny

and the reckless handling of a firearm. 1 Finding no reversible

error, we affirm.

1
Appellant also challenges the trial judge’s refusal to
admit Smith’s conviction of statutory burglary which, appellant
 FACTS

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

At about 6:00 p.m. on January 8, 1997, the police found

Smith's dead body near Davenport Bridge in a rural section of

Spotsylvania County. Smith had sustained shotgun wounds to the

face and the left arm. The wallet in Smith's pocket contained

approximately forty-two dollars. The police found no firearms

or shotgun casings at the scene. Smith's burned and abandoned

truck was found the following day in Caroline County.

On the day of his death, Smith began work at around noon at

his job at a CB radio and electronics shop at a truck plaza in

Doswell, Virginia. Appellant, who had been staying at the truck

plaza motel while his vehicle was under repair, appeared at the

radio shop at about 1:00 p.m. that day. Appellant, who was

conceded at oral argument, was reduced at Smith’s sentencing to
the misdemeanor of trespassing. Appellant did not contend at
trial, as he does on appeal, that this conviction was admissible
to impeach a hearsay statement of Smith. We will not consider
an argument on appeal which was not presented to the trial
court. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405
S.E.2d 630, 631 (1991) (citing Rule 5A:18). Accordingly, Rule
5A:18 bars our consideration of this aspect of appellant’s
argument on appeal. Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.

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familiar with Smith, asked if Smith could give him a ride.

Smith was then unavailable.

Appellant returned to the shop twice more that afternoon,

looking for Smith. During appellant's last visit, Smith was on

the telephone ordering a CB radio for a customer. Mark Bayne,

Smith's employer, asked if Smith had enough money to cover the

COD order. Bayne testified, without objection, that Smith

"looked in his wallet and counted his money and said, 'Yes, I

got that and then some.'" 2 Smith showed his wallet to Bayne, and

Bayne could see that it contained money. 3 Bayne testified that

the radio Smith had ordered cost $256.

Smith left the radio shop with appellant at about 3:00 p.m.

Smith said he would be back in a few minutes, but he never

returned. At 3:40 p.m., one of Smith's cousins saw Smith

driving in his truck with a passenger. Smith was heading away

from the truck plaza and in the direction of the residence of

Hazel Gayle, appellant's sister.

Gayle testified that appellant called her at work at 3:58

p.m. that day. Appellant said he was at her home, had broken

into the gun cabinet, and intended to take her husband's

2
Bayne testified about Smith's statement during the
Commonwealth's case-in-chief. Appellant voiced no objection to
this testimony.
3
The record shows that on January 8, 1997, Smith sold a CB
radio to William Burkhardt for $150 in cash. Smith also worked
on the electronic equipment of at least five trucks that day.
Smith would have been paid fifteen dollars in cash for each job.

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shotgun. Gayle spoke with appellant until 4:10 p.m., trying to

persuade him not to take the gun. Gayle arrived home at 4:35

p.m. She found the glass in the gun cabinet broken and a

shotgun missing. Thomas Galbraith was working at a residence

near Davenport Bridge that afternoon. At some point after 4:10,

Galbraith heard the sound of two gunshots.

Between 4:40 and 4:45, Samuel Smith (Samuel), who also was

Smith's cousin, saw appellant driving Smith's truck on a narrow

dirt road in Hanover County. Samuel slowed down to talk to

appellant and questioned appellant about the truck. Appellant

said the truck belonged to Gary Smith. Samuel saw a shotgun on

the seat beside appellant. Samuel challenged appellant's

statement about the truck, stating that appellant knew it was

not Gary Smith's truck. Appellant abruptly ended the

conversation and drove away.

At 4:55 p.m., appellant drove Smith's truck to the home of

Roger Miles. At appellant's request, Miles took a ride with

appellant. Miles recognized Smith's truck and asked where Smith

was. Appellant said Smith had been shot and was at Davenport

Bridge.

That evening, appellant called his sister's residence and

spoke with her son, Forrest Gayle (Forrest). Appellant said he

had killed a man. He asked Forrest to come to the truck plaza

motel and retrieve the gun. Forrest went to the motel, where he

found appellant drunk. Forrest returned the shotgun to his

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mother's home. At that time, the gun contained no ammunition.

The weapon had been loaded before it disappeared from the gun

cabinet.

Later that night, appellant appeared at Gayle's residence.

He arrived in a truck which Gayle did not recognize. Appellant

said he had killed a man named "Smith." He did not mention

having done so in self-defense.

Appellant was at the home of Thomas Lemonedes watching

television on the night of January 10, 1997 when a news program

reported that appellant was wanted for murder. Appellant said

that "somebody else did it" and that he would surrender himself

to the police the next day.

Appellant was arrested in Louisa County on January 11,

1997. Through DNA testing, the police found that blood stains

on appellant's clothing were consistent in all respects with

Smith's blood.

Testifying in his own behalf, appellant claimed that he and

Smith rode in Smith's truck to Davenport Bridge on the afternoon

of January 8, 1997. Appellant stated that he and Smith were

negotiating the sale of a shotgun from appellant to Smith. The

gun was the same one appellant had taken from his sister's

residence.

According to appellant, he and Smith argued over the

purchase price, and both men got out of the truck. Smith

grabbed the barrel of the shotgun appellant was holding.

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Appellant jerked the gun away and pushed Smith. As Smith backed

up and reached into his jacket, he threatened to kill appellant.

Appellant testified that he "panicked" and shot Smith with the

shotgun.

Appellant said that Smith had showed him a gun the previous

night. Appellant testified that he thought Smith was reaching

for a firearm, and he feared for his life when he shot Smith.

After the shooting, appellant drove away in Smith's truck.

Appellant claimed Forrest assisted him that night in burning

Smith's truck and transporting him back to the motel. On

cross-examination, appellant admitted he was drunk that day and

did not remember encountering anyone on the road after the

shooting.

After appellant testified, the defense sought to introduce

orders reflecting Smith's 1991 convictions for petit larceny and

the reckless handling of a firearm. Appellant contended the

petit larceny conviction was admissible "to impeach statements

made by William Smith that he had a certain amount of money in

his wallet." Appellant argued the firearm conviction was

admissible to demonstrate Smith's propensity for violence. The

trial court sustained the Commonwealth's objections and refused

to admit the convictions into evidence.

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 ANALYSIS

I.

Appellant first contends that, in light of the evidence

that he acted in self-defense when he shot Smith, Smith's prior

conviction for the reckless handling of a firearm was admissible

to demonstrate Smith's propensity for violence.

"Where the defendant claims self-defense, evidence of prior

acts of violence by the victim is relevant as bearing on the

reasonable apprehension which the defendant may have experienced

and on the likelihood of the victim's aggressive behavior as

claimed by the defendant." Edwards v. Commonwealth, 10 Va. App.

140, 142, 390 S.E.2d 204, 206 (1990).

When admissible, such evidence bears on the
questions as to who was the aggressor or
what were the reasonable apprehensions of
the defendant for his life and safety. As
to the latter question, "[t]he true solution
is to exercise a discretion, and to admit
such facts when common sense tells us that
they could legitimately affect a defendant's
apprehensions." As to the former, who was
the aggressor, the question is what the
deceased probably did, and evidence of
recent acts of violence towards a third
person ought to be received if "so connected
in time, place and circumstance with the
homicide, as to likely characterize the
deceased's conduct towards the defendant."

Randolph v. Commonwealth, 190 Va. 256, 265, 56 S.E.2d 226, 230

(1949) (citations omitted).

The evidence offered by appellant to show Smith's

propensity for violence was a record from Hanover County General

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District Court indicating that, on January 4, 1991, Smith was

convicted of recklessly handling a firearm in violation of Code

§ 18.2-56.1. At the time of Smith's conviction, Code

§ 18.2-56.1(A) provided that "[i]t shall be unlawful for any

person to handle recklessly any firearm so as to endanger the

life, limb or property of any person. Any person violating this

section shall be guilty of a Class 2 misdemeanor." 4

In Darnell v. Commonwealth, 6 Va. App. 485, 491-92, 370

S.E.2d 717, 720 (1988), we stated that

the recklessness involved in reckless
handling of a firearm may or may not equate
with the "recklessness" involved in criminal
negligence. The meaning of "reckless"
varies significantly depending on who uses
it and in what circumstances. In laymen's
terms, "reckless" means "lacking in
caution." In legal terms, the definition
depends on the context; what is "reckless"
behavior in tort law may not be so construed
in criminal law.

* * * * * * *

In [Code § 18.2-56.1] . . ., the term
"reckless" is not defined. At this point,
however, we are not prepared to hold that
the "reckless" handling of a firearm is
limited to a handling "so gross, wanton or
culpable as to show a reckless disregard of
human life."

The record contains no information about the basis for

Smith's 1991 conviction for violating Code § 18.2-56.1. The

4
For his conviction, Smith received a suspended sentence of
a $100 fine and sixty days in jail. A violation of Code
§ 18.2-56.1 has since been upgraded to a Class 1 misdemeanor.

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unlawful activity leading to Smith's conviction could have

arisen under a myriad of circumstances, which may have involved

careless, but not violent or turbulent, behavior. Indeed, Smith

need not have actually discharged a firearm at a person or at

property in order for him to be convicted under the statute.

Under these circumstances, in the absence of a proffer of

evidence of the basis for Smith's conviction, we fail to see how

the bare conviction order is evidence of Smith's prior violent

or turbulent behavior. Cf. Short v. Commonwealth, 213 Va. 746,

747, 196 S.E.2d 79, 80 (1973) (evidence of the defendant's prior

homosexual advances to a third party did not "disclose such

violent and turbulent acts as to make the evidence admissible").

Therefore, the trial court did not err in refusing to admit

Smith's prior conviction of Code § 18.2-56.1 as evidence of

Smith's propensity for violence.

II.

The Commonwealth introduced Smith's statement to Bayne to

prove that, when Smith left the radio shop with appellant,

Smith's wallet contained an amount of money substantially

greater than the amount found on his body a few hours later.

During its case-in-chief, the defense sought to introduce

Smith's 1991 petit larceny conviction to impeach Smith's

credibility. The trial judge refused to permit appellant to

introduce this evidence.

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 The Commonwealth contends appellant waived his objection to

the trial judge's ruling because appellant did not object to the

admission of Smith's statement when the Commonwealth introduced

it. As it was offered for the truth of the matter it asserted,

Smith's statement clearly was hearsay. See Garcia v.

Commonwealth, 21 Va. App. 445, 450, 464 S.E.2d 563, 565 (1995)

(en banc). We find no applicable exception to the hearsay rule

through which Smith's statement would have qualified for

admission. However, to accept the Commonwealth's waiver

argument on appeal would be to permit the Commonwealth to

benefit from its own wrong in offering the inadmissible evidence

at trial. 5 "'No litigant . . . will be permitted to approbate

and reprobate -- to invite error . . . and then to take

advantage of the situation created by his own wrong.'" Manns v.

Commonwealth, 13 Va. App. 677, 680, 414 S.E.2d 613, 615 (1992)

5
Nor do we find a basis to apply the doctrine of curative
admissibility, which, "in its broadest form, allows a party to
introduce otherwise inadmissible evidence when necessary to
counter the effect of improper evidence previously admitted by
the other party without objection." Wright v. Commonwealth, 23
Va. App. 1, 7, 473 S.E.2d 707, 709-10 (1996) (en banc).
"[W]hile a trial court generally has discretion in ruling on the
admissibility of evidence, a trial court has no discretion to
apply the doctrine of curative admissibility if the party
seeking to invoke it intentionally failed to object to the
inadmissible evidence in order to gain admission of otherwise
inadmissible evidence." Id. at 8-9, 473 S.E.2d at 710 (citation
omitted). We find no evidence in the record that the defense
intentionally failed to object to the admission of Smith's
statement in order to gain the admission of Smith's prior
conviction.

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(quoting Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d

46, 54 (1988)).

Nor do we find merit in the Commonwealth's contention that,

to comply with Rule 5A:18, appellant was required to offer his

impeachment evidence at the time the Commonwealth introduced

Smith's statement. It is within a trial judge's discretion to

permit impeachment of a witness at a time other than when the

witness testifies. See Mastin v. Theirjung, 238 Va. 434, 440,

384 S.E.2d 86, 89 (1989) (no abuse of discretion to permit

introduction of impeachment evidence on rebuttal although the

evidence could have been introduced in cross-examination of the

witness).

The litigants have identified no Virginia appellate

decision concerning the impeachment of a hearsay declarant, and

we have found none. Several legal treatises, however, state

that a hearsay declarant may be impeached in the same manner as

a witness who actually appears in court. See, e.g., 3A John

Henry Wigmore, Evidence in Trials at Common Law § 884 (Chadbourn

rev. 1970) (stating that a hearsay statement admitted in

evidence is subject to "impeachment in the appropriate ways"); 1

Charles E. Friend, The Law of Evidence in Virginia § 4-9(a) (4th

ed. 1993) (opining that "[a] person whose hearsay statement is

admitted into evidence is subject to impeachment, though the

declarant did not appear in court"). Federal Rule of Evidence

806 provides in part that "[w]hen a hearsay statement . . . has

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been admitted in evidence the credibility of the declarant may

be attacked . . . by any evidence which would be admissible for

those purposes if declarant had testified as a witness." A vast

majority of states have adopted similar rules. See Arthur Best,

Supplement to Wigmore on Evidence § 884 (1998) (listing

forty-one states with a rule of evidence the same as or similar

to Fed. R. Evid. 806).

"When the testimony of a witness concerning an

extrajudicial statement declared by another is offered as

evidence of the truth of the thing stated, the credibility of

the declarant becomes crucial to the truth-determining process."

Claud v. Commonwealth, 217 Va. 794, 796-97, 232 S.E.2d 790, 792

(1977). Therefore, we adopt the majority rule and hold that

when a hearsay statement has been admitted into evidence, the

credibility of the declarant may be attacked by any evidence

which would be admissible for those purposes if the declarant

had testified as a witness.

As a general rule, a witness may be impeached by evidence

that he or she previously was convicted of a misdemeanor

involving moral turpitude. See Johnson v. Commonwealth, 2 Va.

App. 447, 456, 345 S.E.2d 303, 308 (1986). "The Supreme Court

of Virginia has recognized petit larceny as an offense involving

moral turpitude . . . ." Dowell v. Commonwealth, 12 Va. App.

1145, 1147, 408 S.E.2d 263, 264 (1991), aff'd on reh'g en banc,

14 Va. App. 58, 414 S.E.2d 440 (1992). Thus, Smith's 1991 petit

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larceny conviction was admissible to impeach Smith's statement

concerning the contents of his wallet.

"Before we adjudge an error to be harmful or harmless, we

must carefully examine all the evidence. An error committed in

the trial of a criminal case does not automatically require

reversal of an ensuing conviction." Galbraith v. Commonwealth,

18 Va. App. 734, 742, 446 S.E.2d 633, 638 (1994).

A nonconstitutional error is harmless if "it
plainly appears from the record and the
evidence given at trial that the error did
not affect the verdict." "An error does not
affect the verdict if a reviewing court can
conclude, without usurping the jury's fact
finding function, that had the error not
occurred, the verdict would have been the
same."

Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620

(1994) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003,

1005, 407 S.E.2d 910, 911 (1991) (en banc)). "An error may be

harmless because other evidence of guilt is 'so overwhelming and

the error so insignificant by comparison that the error could

not have affected the verdict.'" Ferguson v. Commonwealth, 16

Va. App. 9, 12, 427 S.E.2d 442, 444 (1993) (citation omitted).

Smith was shot and killed in January of 1997. He was

convicted of petit larceny in 1991, when he was twenty-one years

old. The remoteness in time of Smith's petit larceny conviction

would have affected the conviction's tendency to diminish

Smith's credibility. Moreover, in contrast to Smith's prior

larceny conviction, the Commonwealth introduced testimony,

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without objection, from numerous witnesses who described Smith

as a dependable, honest, and hard-working young man at the time

of his death.

Smith's statement concerning the contents of his wallet was

relevant only to appellant's robbery charge, as the statement

tended to prove that Smith possessed more than forty-two dollars

when he left the shop with appellant. By offering Smith's petit

larceny conviction, appellant sought to diffuse the probative

effect of Smith's statement. However, other evidence introduced

by the Commonwealth tended to prove that Smith possessed more

than forty-two dollars when he left his place of employment a

short time before his death. Since noon that same day, Smith

had been paid $150 in cash for a radio he owned. Smith also

performed at least five radio jobs for which he would have been

paid fifteen dollars each.

Furthermore, the evidence was uncontroverted that, after

shooting Smith, appellant stole Smith's truck. Especially in

light of appellant's subsequent efforts to conceal his taking of

the vehicle, the jury could have found that appellant's taking

of the truck was a sufficient basis upon which to find appellant

guilty of robbery. "The violence or intimidation by which

robbery is accomplished must precede or be concomitant with the

taking. If the robbery is accomplished by killing the victim,

it is immaterial that the victim is dead when the theft occurs."

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Shepperson v. Commonwealth, 19 Va. App. 586, 591, 454 S.E.2d 5,

8 (1995).

We conclude that any error in excluding Smith's conviction

for petit larceny was harmless. Therefore, for the foregoing

reasons, appellant's convictions are affirmed.

Affirmed.

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