COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Hodges
Argued at Salem, Virginia
PAUL MATTHEWS HOLT, III
MEMORANDUM OPINION * BY
v. Record No. 2542-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
A. Dow Owens, Judge Designate
Michelle C. F. Derrico (Law Office of John S.
Edwards, on briefs), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted Paul Matthews Holt, III (appellant) of
unlawful wounding, and the trial court sentenced him to six
months in jail and a fine of $2,500, in accordance with the
jury's recommendation. On appeal, appellant contends the trial
court erred by: (1) limiting his cross-examination of the
complaining witness; and (2) barring testimony from the
complaining witness' wife on the grounds of marital privilege.
For the reasons that follow, we reverse and remand for a new
trial should the Commonwealth so choose.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Factual Background
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156,
493 S.E.2d 677, 678 (1997). So viewed, the evidence proved that
on the morning of October 17, 2000 appellant and Raymond Charles
Peggins, who had been roommates and lovers for approximately two
years, had a fight that ended when Peggins was shot in the hip.
Peggins testified about the events of the altercation as
follows. Appellant and Peggins were awakened by a telephone
call from a mutual friend who wanted a ride. The telephone call
sparked an argument, and they "had some words and like a little
struggle." Peggins stated appellant "tried to, pretty much
. . . manhandle me or something like that, wrestle me, and I put
my feet in his chest and I kicked him off me." The two then
went to their respective rooms and dressed; but the argument
continued. Peggins stated that appellant verbally abused him
and hit him while he dressed. At some point during the
argument, appellant retrieved a loaded gun from his dresser and
put it in his right pocket.
The disagreement escalated, and Peggins announced he was
leaving. Appellant followed Peggins to the door and out onto
the porch where Peggins said: "If you hit me again, I am going
to take a warrant out on you." Appellant swung at Peggins.
- 2 -
Peggins dodged the intended blow, and appellant fell "flat on
his back." While appellant was on the ground, Peggins saw him
pull the gun out of his pocket. As Peggins ran toward a parked
car "for safety," he was shot. Peggins asked appellant, "why
did you shoot me" then "fell to the ground." Peggins asked
appellant to call an ambulance, which he did. Peggins testified
that the only time he touched appellant was when he pushed
appellant away from him with his feet.
Appellant's version of events was similar, except he stated
that Peggins threw the first punch and was the aggressor
throughout. Appellant stated he picked up the gun only to keep
it from Peggins, who was screaming at him, "Bitch, I'll murder
you." Appellant stated that when he followed Peggins outside,
Peggins "hit me and when he hit me, I fell on the grass."
Peggins then started hitting and kicking appellant. To escape
these blows, appellant "started rolling" and the gun fell out of
his pocket. Appellant, who is left handed, put his right hand
on the gun to keep it away from Peggins. When appellant tried
to stand up, Peggins hit him "in the nose." Appellant stated,
[Peggins] hit me so hard that my head just
like jerked back, and I fell flat down on
the ground. When I fell on the ground, I
heard a pow, and when I went to get back up,
I looked and [Peggins] said, "Bitch, you
shot me," and I said, "No, I didn't."
When he realized Peggins had been shot, appellant "ran" to the
house and called an ambulance.
- 3 -
At trial, appellant sought to introduce into evidence the
contents of Peggins' claim for compensation from the Virginia
Criminal Injuries Compensation Fund (Claim Form). Appellant
argued the Claim Form contained statements that were inconsistent
with Peggins' trial testimony. In addition, appellant asserted
that the requirements for compensation delineated on the Claim
Form, specifically that Peggins could not have been the aggressor
or a willing participant in the incident, provided proof of a
monetary motive for Peggins to fabricate his testimony. The trial
court sustained the Commonwealth's objection to the use of the
Claim Form during cross-examination and ruled the Claim Form
"ha[d] nothing to do with whether . . . [appellant] shot [Peggins]
or not." Appellant was not permitted to ask Peggins any questions
about the Claim Form or its contents in the presence of the jury.
Appellant also sought to impeach Peggins' trial testimony
about the facts of the fight with statements Peggins made to his
estranged wife, Nakia Shelton, about the shooting. The trial
court sustained the Commonwealth's objection that the statement of
the victim's wife was covered by spousal immunity1 and instructed
appellant not to "pursue this matter at all."
Shelton's proffered testimony detailed two separate
conversations she had with Peggins about the shooting. Shelton
stated that Peggins told her:
1
Neither Peggins, the victim, nor Shelton, his estranged
wife, invoked any type of privilege.
- 4 -
he was in the house and [he and appellant]
got into it about some muscle relaxers or
something, some type of pills of
[appellant's], . . . and they got to arguing
and exchanging blows, and it started from
the back of the house all the way out into
the front yard, and they were arguing, and
he said he hit [appellant] and knocked him
on the ground. . . . He said that when he
was getting ready to hit him again or kick
him or whatever, he said that [appellant]
had pulled out the gun.
Shelton also stated that Peggins told her he "was stomping on"
appellant while he was on the ground, a clear contradiction of
his trial testimony. Shelton said that Peggins "felt he would
get more money from the State rather than saying [the shooting]
was an accident."
II. Cross-examination of the Complaining Witness
Appellant first contends the trial court erred in limiting
his cross-examination of Peggins. Appellant argues he should have
been permitted to question Peggins on the statements he made in
the Claim Form. 2 We agree and find the analysis in Barker v.
Commonwealth, 230 Va. 370, 337 S.E.2d 729 (1985), controlling.
"The Sixth Amendment's Confrontation Clause, made applicable
to the States through the Fourteenth Amendment, provides: 'In all
criminal prosecutions, the accused shall enjoy the right to be
2
The Commonwealth argues appellant's assignment of error is
procedurally barred because he failed to expressly say he wanted
to impeach Peggins for "bias." We hold that appellant properly
preserved his assignment of error for appeal when he stated on
the record that he wished to impeach Peggins as to the
inconsistent statements on the Claim Form and by showing Peggins
had a motive to fabricate his testimony.
- 5 -
confronted with the witnesses against him.'" Ohio v. Roberts, 448
U.S. 56, 62-63 (1980). "The right to confront witnesses secured
by the Sixth Amendment encompasses the right to cross-examine
them." Rankins v. Commonwealth, 31 Va. App. 352, 364, 523 S.E.2d
524, 530 (2000) (citing Cruz v. New York, 481 U.S. 186 (1987);
Douglas v. Alabama, 380 U.S. 415, 418 (1965)).
"Cross-examination is an absolute right guaranteed to a
defendant by the confrontation clause of the Sixth Amendment and
is fundamental to the truth-finding process." Clinebell v.
Commonwealth, 235 Va. 319, 325, 368 S.E.2d 263, 266 (1988).
"One purpose of cross-examination is to show that a witness
is biased and his testimony unreliable because it is induced by
considerations of self-interest." Barker, 230 Va. at 376, 337
S.E.2d at 733 (citing Whittaker v. Commonwealth, 217 Va. 966,
967, 234 S.E.2d 79, 81 (1977)). "The bias of a witness . . . is
always a relevant subject of cross-examination." Goins v.
Commonwealth, 251 Va. 442, 465, 470 S.E.2d 114, 129 (1996)
(citing Norfolk & Western Railway Co. v. Sonney, 236 Va. 482,
488, 374 S.E.2d 71, 74 (1988); see Brown v. Commonwealth, 246
Va. 460, 464, 437 S.E.2d 563, 564-65 (1993)). Accordingly, the
Supreme Court of Virginia has "consistently held that the right
of an accused to cross-examine prosecution witnesses to show
bias or motivation, when not abused, is absolute." Hewitt v.
Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114 (1984)
(citing Whittaker, 217 Va. at 968, 234 S.E.2d at 81; Davis v.
- 6 -
Commonwealth, 215 Va. 816, 822, 213 S.E.2d 785, 789 (1975);
Woody v. Commonwealth, 214 Va. 296, 299, 199 S.E.2d 529, 531-32
(1973); Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324,
327 (1961)).
"Although a trial court may exercise discretion to see that
the right of cross-examination is not abused, the discretion may
be employed only after the right to cross-examine has been
fairly and substantially exercised." Barrett v. Commonwealth,
231 Va. 102, 108, 341 S.E.2d 190, 194 (1986) (emphasis added).
In the instant case, appellant's right to cross-examine Peggins
was not fairly and substantially exercised. Like the appellant
in Barker, appellant attempted to investigate Peggins' possible
bias and motive to fabricate by questioning him about his
request for payment of funds under a victim assistance program.
The Supreme Court of Virginia stated, "We believe that the
matters Barker wished to explore were appropriate subjects of
cross-examination to test [the victim's] credibility. Clearly,
these matters were relevant to establish [the victim's] possible
bias and motive to fabricate." Barker, 230 Va. at 376, 337
S.E.2d at 734. Appellant was neither permitted to introduce the
Claim Form into evidence nor to question Peggins on statements
in the Claim Form that were inconsistent with his trial
- 7 -
testimony. 3 Thus, as in Barker, "we hold that the trial court
erred in restricting [appellant's] cross-examination." Id.
Although we reverse on this issue, because appellant's second
assignment of error is likely to arise on remand we must
consider it as well.
III. Privileged Marital Communications
Appellant next contends the trial court erred in limiting
his cross-examination of Peggins' estranged wife. We agree.
In criminal cases husband and wife shall be
allowed, and, subject to the rules of
evidence governing other witnesses and
subject to the exception stated in
§ 8.01-398, may be compelled to testify in
behalf of each other, but neither shall be
compelled to be called as a witness against
the other, except (i) in the case of a
prosecution for an offense committed by one
against the other or against a minor child
of either, (ii) in any case where either is
charged with forgery of the name of the
other or uttering or attempting to utter a
writing bearing the allegedly forged
signature of the other or (iii) in any
proceeding relating to a violation of the
laws pertaining to criminal sexual assault
(§§ 18.2-61 through 18.2-67.10), crimes
against nature (§ 18.2-361) involving a
minor as a victim and provided the defendant
and the victim are not married to each
other, incest (§ 18.2-366), or abuse of
children (§§ 18.2-370 through 18.2-371).
Code § 19.2-271.2.
3
For example, on the Claim Form, Peggins stated that he was
earning $200 per week prior to the shooting. However, at trial,
Peggins conceded that he really had not been working
consistently. Although appellant had been giving him some
money, Peggins estimated that it amounted to perhaps $100 per
week.
- 8 -
Husband and wife shall be competent
witnesses to testify for or against each
other in all civil actions; provided that
neither husband nor wife shall, without the
consent of the other, be examined in any
action as to any communication privately
made by one to the other while married, nor
shall either be permitted, without such
consent, to reveal in testimony after the
marriage relation ceases any such
communication made while the marriage
subsisted.
Code § 8.01-398 (emphasis added). 4 "Such communications include
'all information or knowledge privately imparted and made known
by one spouse to the other by virtue of and in consequence of
the marital relation.'" Edwards v. Commonwealth, 20 Va. App.
470, 474, 457 S.E.2d 797, 799 (1995); Osborne v. Commonwealth,
214 Va. 691, 692, 204 S.E.2d 289, 290 (1974); Menefee v.
Commonwealth, 189 Va. 900, 912, 55 S.E.2d 9, 15 (1949).
4
The Commonwealth's attorney's sua sponte invocation of
"immunity" confused the spousal immunity privilege with "the
separate and distinct rule of evidence governing confidential
communications between husband and wife." Stewart v.
Commonwealth, 219 Va. 887, 893, 252 S.E.2d 329, 333 (1979).
Under the former, a witness spouse cannot be compelled to
testify against a defendant spouse at trial. Pursuant to the
statute, however, the privilege rests with the testifying
spouse, not the defendant spouse. See Code § 19.2-271.2; Turner
v. Commonwealth, 33 Va. App. 88, 531 S.E.2d 619 (2000).
Therefore, neither the Commonwealth nor Peggins had the right to
invoke the spousal immunity if Shelton was willing to testify.
See Turner, 33 Va. App. at 95, 531 S.E.2d at 622 ("the
legislature [has] eliminated the defendant spouse's privilege to
bar the witness spouse from testifying against the defendant,
while preserving in the witness spouse the privilege to avoid
compelled testimony, subject to certain statutory exceptions").
Additionally, the excluded testimony was not "against" the
defendant at trial. Thus, the spousal privilege claimed is
inapposite.
- 9 -
Assuming without deciding that the statement was a
privileged marital communication, we hold the privilege was
waived in this case. "Like all privileges, the husband-wife
communications privilege can be waived." Charles E. Friend, The
Law of Evidence in Virginia, § 7-2 (4th ed. 1993); see also
Osborne, 214 Va. 691, 204 S.E.2d 289. During cross-examination,
appellant asked Peggins, without objection, whether he told
Shelton he was fighting with appellant and was "getting the
better" of appellant when he was shot. Peggins replied, "No,
nobody is going to fight with a man with a loaded .357 in his
pocket." Neither Peggins nor the Commonwealth 5 asserted the
privilege when appellant posed the question. Instead, Peggins
answered the question and denied he made such a statement to
Shelton. By answering the question rather than invoking his
privilege, Peggins waived the privilege. See Osborne, 214 Va.
691, 204 S.E.2d 289. Once Peggins denied making the statement,
appellant had the right to make the same inquiry of Shelton and
elicit testimony about the victim's statement to her that
undermined his testimony at trial. Accordingly, it was error
for the trial court to exclude from evidence Shelton's testimony
regarding Peggins' account of the fight.
5
Because appellant did not raise the issue at trial, we do
not address whether the Commonwealth had standing to raise the
marital communication privilege.
- 10 -
IV. Harmless Error
The Commonwealth argues that any error at trial was
harmless because the evidence appellant sought to introduce was
merely cumulative and could not have affected the verdict. We
disagree.
We must reverse a criminal conviction unless it plainly
appears from the record and the evidence given at the trial that
the error did not affect the verdict. An error does not affect
the verdict if we can determine, without usurping the jury's
fact finding function, that, had the error not occurred, the
verdict would have been the same. Hanson v. Commonwealth, 14
Va. App. 173, 190, 416 S.E.2d 14, 24 (1992) (internal quotations
omitted). "The effect of an error on a verdict varies widely
depending upon the circumstances of the case. Each case must,
therefore, be analyzed individually to determine if an error has
affected the verdict." Lavinder v. Commonwealth, 12 Va. App.
1003, 1009, 407 S.E.2d 910, 913 (1991) (internal citations and
quotations omitted). "In criminal cases, the requirement of
proof beyond a reasonable doubt is a constitutional requirement
of due process." Id. at 1007, 407 S.E.2d at 912. The error is
harmless only if we can say beyond a reasonable doubt that the
error did not affect the verdict.
The excluded evidence was offered to show Peggins' motive
to fabricate his testimony and to highlight prior inconsistent
statements. While there was testimony that Peggins was "a
- 11 -
compulsive liar" and that he had "a very short temper," we
cannot say that the excluded evidence of a specific financial
motive to lie in this case would have the same weight as the
more general statement that Peggins lied on other occasions.
Moreover, Shelton's proffered testimony corroborated appellant's
version of the events surrounding the fight, showing Peggins as
the aggressor and the shooting to be accidental. Specifically,
Shelton's testimony corroborated appellant's statement that
Peggins struck him and knocked him to the ground when the two
went outside and that Peggins "was stomping on" appellant
immediately before the shot was fired. Without usurping the
jury's fact finding function, we cannot say that this evidence
would not have changed the verdict in the instant case.
Accordingly, we reverse and remand the case to the trial court
for a new trial if the Commonwealth be so advised.
Reversed and remanded.
- 12 -