COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
TYRONE DRUMGOOLE
OPINION BY
v. Record No. 1055-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
Andrew E. Weaver (Traylor, Morris & Wornom,
on brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Tyrone Drumgoole (appellant) was convicted in a jury trial
of robbery in violation of Code § 18.2-58. On appeal, he
contends the trial court erred in allowing questioning on
cross-examination that was beyond the scope of the direct
examination. For the following reasons, we affirm the
conviction.
I.
On June 29, 1996, David Anderson, the victim, went to pick
up his daughter at her mother's apartment. When he arrived at
the apartment several people were present, including the
daughter's grandmother, Clifton Bailey, Mario Smith, Tyrone Pair,
and appellant. Bailey repeatedly asked Anderson for money to buy
beer and later to speak with him outside the apartment. During
the conversation outside, Anderson noticed Pair, Smith, and
appellant approach. Anderson was hit from behind and knocked
unconscious. He did not see his attacker. When he awoke he
discovered $20 to $30 was missing from his right front pocket. A
grand jury indicted appellant on charges of malicious wounding in
violation of Code § 18.2-51 and robbery in violation of Code
§ 18.2-58.
At trial, Tawanda Hollomond, a convicted felon, testified
for the Commonwealth. Hollomond stated that she knew both
appellant and the victim, was present at the time of the attack,
and saw the victim conversing with appellant and the others. She
heard a "slapping noise" and saw Anderson on the ground.
Hollomond stated that she observed appellant go through the
victim's pockets and remove something from the right front
pocket. On cross-examination, Hollomond admitted that twelve
years earlier she had argued with appellant regarding overdue
video tapes, but denied any more recent conflict.
On direct examination, appellant limited his testimony to
the video dispute with Hollomond and added that he and Hollomond
had two past disputes. He described the argument mentioned by
Hollomond which occurred twelve years earlier and also described
an argument as recent as one or two years earlier in which
Hollomond said "she was going to get him." His relationship with
Hollomond was the only issue covered on appellant's direct
examination.
On cross-examination, the Commonwealth questioned appellant
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about the Hollomond disputes. Additionally, and over defense
objection, the prosecutor also asked appellant about the night
Anderson was attacked. The trial court overruled the defense
objection, stating, "[h]e may make him his witness, but I don't
believe the defense takes the stand on any qualified immunity. I
believe the Commonwealth can explore other issues to include the
events of that evening."
The jury acquitted appellant of malicious wounding but found
him guilty of robbery. He was sentenced to serve five years
imprisonment.
II.
The sole issue on appeal is whether the trial court abused
its discretion in allowing the Commonwealth to cross-examine
appellant beyond the scope of matters raised on direct
examination. Appellant contends the Commonwealth could only
question him regarding his relationship with Tawanda Hollomond
and nothing further. This argument is without merit.
"In any case of felony or misdemeanor, the accused may be
sworn and 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 . . . ." Code § 19.2-268
(emphasis added). "Cross-examination . . . entitles the
Commonwealth to bring out . . . facts relating to the guilt or
innocence of the accused . . . ." Thaniel v. Commonwealth, 132
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Va. 795, 806, 111 S.E. 259, 262 (1922).
[W]hen the accused voluntarily takes the
stand he "loses his character as a party,
becomes a mere witness, and may be examined
as fully as any other witness. He may be
examined and must answer concerning all
matters which are relevant to the case,
whether testified to on the direct
examination or not."
Smith v. Commonwealth, 182 Va. 585, 598, 30 S.E.2d 26, 31 (1944)
(citation omitted).
[T]o confine the cross-examination of the
accused to such matters as have been brought
out on direct examination is "palpably unfair
to the prosecution," for since it can not
call him as a witness or compel him to
testify on direct examination, unless it
could develop relevant facts on his
cross-examination it might be deprived of all
means of proving them, and this, too,
although the accused, by voluntarily taking
the stand, had waived the privilege of
self-incrimination.
Id. at 600-01, 30 S.E.2d at 32.
In the instant case, appellant testified on direct
examination about his adversarial relationship with Hollomond in
an effort to discredit her testimony concerning the circumstances
of the robbery. Under the rationale of Smith and Thaniel, once
appellant testified in this manner, the Commonwealth could
explore additional matters relating to the facts of the case on
cross-examination.
Appellant also argues that even if the Commonwealth was
permitted to expand the areas covered on cross-examination beyond
the scope of direct, such questioning must be reserved for
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rebuttal. A trial judge has great latitude in admitting
testimony during cross-examination. See Scott v. Commonwealth,
18 Va. App. 692, 693-94, 446 S.E.2d 619, 619 (1994). The trial
court possesses broad discretion regarding the order of proof and
examination of witnesses and its decisions thereon can be
overturned only for an abuse of discretion. See Satcher v.
Commonwealth, 244 Va. 220, 252, 421 S.E.2d 821, 840 (1992), cert.
denied, 507 U.S. 933 (1993). "[I]t is now universally held that
the order in which the evidence is introduced is a matter which
rests in the sound discretion of the trial court, and unless
abused the exercise of such discretion is not ground for
reversal." Smith, 182 Va. at 600, 30 S.E.2d at 32. We find no
abuse of discretion, and for the foregoing reasons, we affirm the
conviction.
Affirmed.
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