Drumgoole v. Commonwealth

                   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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