COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
KEVIN W. KIRK
v. Record No. 1501-94-1 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA NOVEMBER 28, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Scott M. Reed (Scott M. Reed, P.C., on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from his convictions of two counts of robbery, two
counts of use of a firearm in the commission of robbery, and
three counts of possession of a firearm while a convicted felon,
Kevin W. Kirk contends that the trial court (1) denied him due
process by refusing to sever for trial the charges against him,
and (2) erred in admitting evidence that an alibi witness was his
homosexual lover and suffered Acquired Immune Deficiency Syndrome
(AIDS). We find no error and affirm the judgment of the trial
court.
I.
On October 12, 1993, Todd Angelo was working the midnight
shift as a clerk at the Unimart on South Independence Boulevard
in Virginia Beach. Kirk entered the store between 1:30 and 2:00
a.m. Kirk approached the counter, pulled out a small, wooden-
handled .22 caliber handgun, pointed it at Angelo's chest, and
demanded the money from the cash drawer. Angelo complied. As
Kirk left, he told Angelo not to follow him or he would shoot.
Kirk then fled on foot toward Dahlia Drive. Angelo reported the
robbery and described Kirk, his gun, and his clothes.
On October 22, 1993, Angelo was again working the midnight
shift. Shortly after 2:00 a.m., Kirk entered the Unimart.
Angelo recognized him from the previous robbery. Kirk approached
the counter, pulled out the same handgun, and demanded all the
money from the cash register. Angelo complied. As Kirk left the
store, he again warned Angelo not to follow him. Angelo
immediately reported the robbery.
On November 10, 1993, Angelo was again working the midnight
shift at the same Unimart. A friend, Rodney Baldwin, was in the
store keeping him company. Angelo saw Kirk approaching the
Unimart and recognized him as the man who had robbed him twice
before. Kirk saw the two men in the store and ran toward Dahlia
Drive. Angelo called the police while Baldwin ran in search of a
police officer. As Angelo ran out of the store, he saw Kirk in a
car. Baldwin also saw Kirk. Angelo and Baldwin flagged down a
policeman, who pursued Kirk. After a high speed chase, Kirk was
stopped. The officer searched Kirk's car and found the handgun.
At the scene of the stop, Angelo identified Kirk as the man who
had robbed him twice and who had been at the store minutes
before.
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Prior to trial, Kirk moved the trial court to sever the
charges for trial and to hold five separate trials, one trial for
each robbery and related firearm charge and one trial for each
charge of possession of a firearm while a convicted felon. The
trial court denied the motion, holding that the charges were
sufficiently connected to warrant consolidation under Rules
3A:10(c) and 3A:6(b).
At trial over Kirk's objection, his probation officer
testified that Kirk was aware he could not own, use, or possess a
firearm. Kirk himself testified on direct examination that he
had been convicted of five felonies and that he had bought the
gun from a friend to avoid a criminal records check.
At trial, Kirk called several alibi witnesses, one of whom
was Claude Baldwin. Claude Baldwin testified that Kirk lived
with him and had been with him the nights of the robberies. On
cross-examination over Kirk's objection, Claude Baldwin admitted
he was Kirk's homosexual lover and that he had AIDS. He stated
that he wanted Kirk to be with him for moral and financial
support.
II.
Kirk first contends that the trial court violated his due
process rights by denying his motion to sever the charges and
conduct separate trials pursuant to Rule 3A:10(c). He argues
that the two robbery and related firearm charges were not part of
a common scheme. He further argues that the three charges of
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possession of a firearm while a convicted felon should have been
tried separately because evidence of his earlier felony
convictions would be admissible in the trial of those offenses,
but not in the trials of the robbery and related use of firearm
charges. He also argues that the testimony of his probation
officer as to his prior convictions was prejudicial and that the
prejudice outweighed its probative value.
"A trial court has limited discretion to order an accused to
be tried for more than one offense at the same time." Godwin v.
Commonwealth, 6 Va. App. 118, 121, 367 S.E.2d 520, 521 (1988).
When an accused is charged with multiple offenses:
The court may direct that an accused be tried
at one time for all offenses then pending
against him, if justice does not require
separate trials and (i) the offenses meet the
requirements of Rule 3A:6(b) or (ii) the
accused and the Commonwealth's Attorney
consent thereto.
Rule 3A:10(c). Because Kirk did not consent to the joinder of
the charges for trial, joinder could be ordered only if the
charges met the criteria of Rule 3A:6(b) and justice did not
require separate trials.
Two or more offenses, . . . may be charged in
separate counts of an indictment . . . if the
offenses are based on the same act or
transaction, or on two or more acts or
transactions that are connected or constitute
parts of a common scheme or plan.
Rule 3A:6(b).
The charges against Kirk met the requirements of Rule
3A:6(b) because the offenses charged were part of a "common
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scheme." In all three incidents, Kirk approached the same store,
on foot, at the same time of night, and from the same direction.
During the two robberies, he used the same handgun, made similar
demands for money, and threatened the clerk not to follow upon
exiting the store.
Justice did not require separate trials for the two robbery
and related firearm charges. The only issue in dispute was the
identity of the perpetrator. Evidence of each robbery and
accompanying firearm charge would have been admissible in the
trial of the other to prove the identity of the perpetrator. See
Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616,
cert. denied, 498 U.S. 408 (1990). "'Other crimes' evidence
bearing sufficient marks of similarity to the case on trial to
establish the probability of a common perpetrator is, therefore,
usually relevant. . . . 'Whenever the legitimate probative value
outweighs the incidental prejudice to the accused, evidence of
prior offenses, . . . is admissible.'" Id. at 90, 393 S.E.2d at
616-17.
Neither did justice require that the charges of possession
of a firearm while a convicted felon be tried separately. Kirk
was charged with possessing a firearm as a felon on October 12,
October 23, and November 10, 1993. The only proof of Kirk's
possession of the handgun on October 12 and 23 was the testimony
of the Unimart clerk who had been robbed by Kirk. The evidence
of the robberies was thus admissible to prove Kirk possessed a
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firearm on those occasions. See Tuggle v. Commonwealth, 228 Va.
493, 506-07, 323 S.E.2d 539, 546-47 (1984), vacated on other
grounds, 471 U.S. 1096 (1985).
Furthermore, as this case developed, the trial court
committed no reversible error in admitting evidence of Kirk's
prior felony convictions in his trial for the robberies and the
accompanying use of firearm charges. Because that evidence was
admissible, all of the evidence relating to the charges of
possession of a firearm while a convicted felon was relevant and
admissible with respect to the robbery and accompanying firearm
charges. Thus, in this case, justice did not require severance
of the charges of possession of a firearm while a convicted
felon. We have heretofore held to the contrary in cases that are
distinguishable from this. See Johnson v. Commonwealth, 20 Va.
App. 49, 455 S.E.2d 261 (1995); Long v. Commonwealth, 20 Va. App.
223, 456 S.E.2d 138 (1995).
Johnson was charged with possession of cocaine and
possession of a firearm after having been convicted of a felony.
The circumstances of his possession of cocaine charge were not
such that his prior felony conviction was probative or otherwise
admissible. Holding that justice required separate trials and
that the trial court erred in denying severance, we said:
To prove the charge of possession of a firearm after
being convicted of a felony, the Commonwealth was
required to prove that Johnson was a convicted felon.
Thus with respect to that charge, the trial court was
obliged to receive evidence of Johnson's prior criminal
record. However, that evidence bore no relevance and
had no probative value with respect to the charges
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relating to possession of cocaine. With respect to
those charges, it served merely the purpose of
prejudicing Johnson in the eyes of the jury, by
suggesting to their minds that he had a criminal
propensity.
Johnson, 20 Va. App. at 56, 455 S.E.2d at 265.
Long was charged with possession of heroin, possession of a
firearm while in possession of heroin, and possession of a
firearm after having been convicted of a felony. Again, the
circumstances of his trial on the first two charges were such
that his prior felony conviction had no relevance or probative
value. Holding that justice required severance of the third
charge, we said:
Evidence of Long's prior felony conviction would not
have been admissible in a trial on the possession of
heroin and firearm/heroin possession charges, unless
Long put his character or credibility in issue.
Long, 20 Va. App. at 226, 456 S.E.2d at 139.
Kirk testified, thus putting his character and credibility
at issue 1 . His prior felony convictions thereby became relevant
and admissible for impeachment purposes. Furthermore, Kirk
himself testified, on direct examination, that he had been
convicted of five prior felonies. Although the general rule,
enunciated in Johnson and Long, requires severance when proof of
one charge requires introduction of evidence that is irrelevant
and prejudicial in the trial of another, the development of this
case rendered harmless any error that may initially have occurred
1
Nothing in the record suggests that Kirk's election to testify
was tied to the denial of his severance motion.
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in the denial of Kirk's motion to sever the charges of possession
of a firearm while a convicted felon. Justice does not require
exclusion of evidence that is probative of the central issue on
trial and that the accused himself chooses to interject.
Furthermore, the trial court instructed the jury to consider
Kirk's prior felony convictions only in relation to his
credibility and to the charges of possession of a firearm while a
convicted felon. The jury is presumed to have obeyed this
instruction. See Jennings v. Commonwealth, 20 Va. App. 9, 19,
454 S.E.2d 752, 756 (1995).
III.
Kirk next contends that the trial court erred in admitting
testimony from Claude Baldwin, an alibi witness, that he was
Kirk's homosexual lover and had contracted AIDS. Kirk argues
that this evidence caused the jury to focus on an irrelevant and
controversial subject. He further argues that the prejudicial
nature of the evidence significantly outweighed its probative
value on the issue of Baldwin's bias. He cites Jones v. United
States, 625 A.2d 281 (D.C. 1993), in support of his contention
that "'[e]vidence of homosexuality has an enormous proclivity for
humiliation and degradation' and, thus, poses a high risk of
prejudicial impact on a jury." Id. at 284.
It is always open to a party to undertake a
demonstration of the bias or testimonial
motivation . . . of one who testifies for his
adversary. "Such an effort . . . may
properly solicit . . . information of
potential value to the trier of fact in the
assessment of credibility." Evidence of
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homosexuality is no exception . . . .
Tinker v. United States, 417 F.2d 542, 544, cert. denied, 396
U.S. 864 (1969). The trial court weighed the evidence of
Baldwin's being Kirk's homosexual lover and of his illness with
AIDS. It found that the probative value of this witness's bias
outweighed the prejudicial impact. "The responsibility for
balancing these competing considerations is largely within the
sound discretion of the trial judge. And . . . will not be
disturbed on appeal absent a clear abuse of discretion." Coe v.
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). We
find no abuse of discretion in this ruling.
"[O]n cross-examination great latitude is allowed . . . .
[T]he general rule is that anything tending to show the bias on
the part of a witness may be drawn out." Henning v. Thomas, 235
Va. 181, 188, 366 S.E.2d 109, 113 (1988). The nature of Kirk's
relationship with Claude Baldwin was relevant to the witness's
testimonial motivation.
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
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