COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
RALPH BAILEY GORMUS
MEMORANDUM OPINION * BY
v. Record No. 0982-99-3 JUDGE LARRY G. ELDER
MAY 2, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
George W. Nolley for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Ralph Bailey Gormus (appellant) appeals from his jury trial
convictions for misdemeanor hit-and-run pursuant to Code
§ 46.2-894 and driving under the influence of alcohol pursuant
to Code § 18.2-266. Appellant's sole defense at trial was that
he was merely a passenger at the time of the accident and that
his cousin, Cleveland Taylor, was driving. On appeal, appellant
contends the trial court erroneously refused to allow him to
cross-examine Taylor about his two prior convictions for driving
under the influence of alcohol and his fear that a third
conviction would result in heightened punishment, thereby
denying him the opportunity to fully develop Taylor's bias.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Appellant also contends the trial court erroneously instructed
the jury on the inference that a person intends the natural and
probable consequences of his acts, arguing that this instruction
improperly shifted to him the burden of proving a lack of
intent, improperly emphasized a portion of the evidence and
confused the jury. We hold that the court erroneously
restricted cross-examination of Taylor but that the error was
harmless. We also hold the giving of the challenged jury
instruction was not error because it created a permissive
inference rather than a mandatory presumption and was supported
by the evidence. Therefore, we affirm appellant's convictions.
I.
PRIOR DUI CONVICTIONS AS EVIDENCE OF BIAS
The rules for impeaching the veracity of a witness with
prior convictions differ depending on the method used. "Where
the purpose of the inquiry is [a direct attack on] a witness'
veracity based on prior convictions, cross-examination
concerning a witness' prior convictions is limited to prior
felony convictions and convictions for misdemeanors involving
moral turpitude." Scott v. Commonwealth, 25 Va. App. 36, 41,
486 S.E.2d 120, 122 (1997). However, where the purpose of the
"cross-examination [is an indirect attack on veracity] designed
to demonstrate a witness' bias or motive to testify" falsely, it
is error to limit the cross-examination to prior felony
convictions and crimes of moral turpitude. See id. "An accused
- 2 -
has a right to cross-examine prosecution witnesses to show bias
or motivation and that right, when not abused, is absolute. The
right emanates from the constitutional right to confront one's
accusers." Brown v. Commonwealth, 246 Va. 460, 463-64, 437
S.E.2d 563, 564-65 (1993).
"Such an inquiry is always relevant, and the jury should
consider the evidence of bias in deciding what weight to give to
the testimony of the witness." 1 Charles E. Friend, The Law of
Evidence in Virginia § 4-4(a), at 131 (4th ed. 1993) (footnote
omitted). Further, "[t]he issue of bias is never collateral,
and cross-examining counsel is therefore never precluded from
producing extrinsic evidence if the bias is denied." Id. at 132
(footnote omitted).
So absolute is this right to cross-examine
for bias that it takes precedence over other
rules of evidence and even over statutory
enactments. Thus, . . . it is error to
limit an accused's cross-examination of
prosecution witnesses as to juvenile
offenses, even though a statute protects
such matters from disclosure[, where that
cross-examination relates to bias].
Id.; see Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39
L. Ed. 2d 347 (1974) (cross-examination regarding juvenile court
record). Other types of evidence probative of bias include the
existence of a plea bargain between the witness and the
prosecution or other expectation of favorable consideration at
trial or in sentencing for the witness' own crime. See Brown,
246 Va. at 464, 437 S.E.2d at 565; Davis v. Commonwealth, 215
- 3 -
Va. 816, 822, 213 S.E.2d 785, 789 (1975); Scott, 25 Va. App. at
40-42, 486 S.E.2d at 121-22; see also 1 Friend, supra, § 4-4(a),
at 132.
Here, evidence that Commonwealth's witness Cleveland Taylor
had twice previously been convicted for driving under the
influence of alcohol and knew that a third conviction likely
would result in a greater punishment or longer license
suspension was probative of his bias in testifying that
appellant was behind the wheel at the time of the accident.
Taylor arguably had a motive to implicate appellant in order to
exonerate himself, and appellant was entitled to put this
evidence before the jury for its use in determining what weight
to give Taylor's testimony. This evidence was relevant and
material to Taylor's credibility and was not collateral.
Therefore, the trial court erred in excluding it.
The Commonwealth contends that the exclusion, if error, was
harmless. Even if the jury had disregarded Taylor's testimony,
it contends, the verdicts would have been the same based on the
other evidence before the jury, which included the testimony of
independent witness Robert Dodson, who identified appellant as
the driver and heard appellant admit he was the driver, and
appellant's flight from the scene. Furthermore, it argues,
although Taylor was sufficiently impeached by his prior
convictions for felonies, crimes of moral turpitude and one DUI
offense, the jury still rejected appellant's claim that Taylor
- 4 -
was the driver. We hold that the exclusion of the proffered
bias evidence was harmless under the facts of this case.
In evaluating a court's erroneous restriction of
cross-examination, "'[t]he correct inquiry is whether, assuming
that the damaging potential of the cross-examination were fully
realized, [we] might nonetheless say that the error was harmless
beyond a reasonable doubt.'" Maynard v. Commonwealth, 11 Va.
App. 437, 448, 399 S.E.2d 635, 641 (1990) (en banc) (quoting
Delaware v. Van Ardsall, 475 U.S. 673, 684, 106 S. Ct. 1431,
1438, 89 L. Ed. 2d 674 (1986)). This analysis "is akin to
harmless error review in cases of improperly admitted evidence,
where the error is held harmless if the record contains
'overwhelming' evidence of guilt. . . . [Taylor's] testimony is
the 'improper' evidence we evaluate, to determine its effect, if
any, on the verdict." Scott, 25 Va. App. at 42-43, 486 S.E.2d
at 123 (citations omitted). In performing such analysis, we
evaluate "'the importance of [Taylor's] testimony in the
prosecution's case, whether [Taylor's] testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting [Taylor's] testimony on material points, the
extent of cross-examination [of Taylor] otherwise permitted and,
of course, the overall strength of the prosecution's case.'"
Williams v. Commonwealth, 4 Va. App. 53, 78-79, 354 S.E.2d 79,
93 (1987) (quoting Van Ardsall, 475 U.S. at 684, 106 S. Ct. at
1438). "An error does not affect a verdict if a reviewing court
- 5 -
can conclude, without usurping the jury's fact finding function,
that, had the error not occurred, the verdict would have been
the same." Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,
407 S.E.2d 910, 911 (1991) (en banc).
We conclude first that the extent of cross-examination of
Taylor otherwise permitted was insufficient to allow appellant
to establish his bias. We reject the Commonwealth's argument
that Taylor's admission to one prior DUI conviction before the
trial court sustained appellant's objection rendered the
exclusion of further evidence harmless. Because the trial court
sustained the Commonwealth's objection to this line of
questioning, appellant was not permitted to argue to the jury
that the prior DUI conviction to which Taylor admitted provided
him with a motive to lie about who was driving in order to
exonerate himself. Thus, appellant was deprived of the ability
to use effectively a potentially significant piece of impeaching
evidence.
This case is distinguishable from Fitzgerald v. Bass, 6 Va.
App. 38, 366 S.E.2d 615 (1988) (en banc), cited by the
Commonwealth. 1 In Fitzgerald, the witness was merely a cellmate
1
Although Fitzgerald involved review of a petition for a
writ of habeas corpus, the Court observed that the applicable
standard of review was "equivalent to the 'harmless beyond a
reasonable doubt' standard," Fitzgerald, 6 Va. App. at 53, 366
S.E.2d at 623, which is applied in evaluating alleged
constitutional error on direct appeal, see Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc).
- 6 -
to whom the accused confessed. See id. at 47, 366 S.E.2d at
620. The cellmate admitted to one felony conviction and said
that he had one charge pending against him when he met the
accused but that it had been reduced to a misdemeanor. See id.
at 49, 366 S.E.2d at 621. In fact, he had three prior felony
convictions and two pending felony charges in another
jurisdiction, and was a paid informant for the state police on a
matter not involving the accused. See id. at 47, 49, 366 S.E.2d
at 620, 621. The court acknowledged that the cellmate provided
testimony key to the accused's conviction, but noted that the
jury knew the cellmate was a convicted felon, had committed
misdemeanor offenses involving moral turpitude, and was
incarcerated when he met the accused. See id. at 54-55, 366
S.E.2d at 624. Under those circumstances, it held, "given the
extent to which [the cellmate's] credibility was impeached, it
is doubtful that additional evidence in this regard would have
made a difference in the jury's opinion of his credibility."
Id. at 55, 366 S.E.2d at 624-25.
In appellant's case by contrast, Taylor, the witness whose
bias appellant sought to show, was a direct participant in the
events for which appellant was on trial, not merely an
uninvolved cellmate to whom appellant later confessed. Further,
the prior convictions appellant sought to prove related to more
than just a general propensity for untruthfulness or a desire to
lessen his sentence for an unrelated offense. Rather, Taylor's
- 7 -
two prior convictions--which were for driving under the
influence--went directly to Taylor's motive to lie about whether
he was driving at the time of the accident, a key element of
appellant's hit-and-run conviction. Under appellant's theory,
Taylor was seeking not simply to lessen his punishment for an
unrelated offense, as the cellmate in Fitzgerald may have been;
rather he was seeking to exonerate himself for the precise
behavior key to appellant's hit-and-run conviction--the same act
of driving.
Nevertheless, the error in restricting appellant's
cross-examination of Taylor clearly was harmless beyond a
reasonable doubt as to both convictions. Appellant challenged
only the evidence that he was driving at the time of the
accident. He did not challenge Dodson's testimony that he
attempted to remove the vehicle from the ditch shortly
thereafter. Even if appellant was not driving at the time of
the accident, this second act of driving was sufficient to
support his conviction for driving under the influence. See,
e.g., Gallagher v. Commonwealth, 205 Va. 666, 668-70, 139 S.E.2d
37, 39-40 (1964). Therefore, the trial court's erroneous
restriction of appellant's ability to cross-examine Taylor was
harmless in relation to appellant's DUI conviction.
The error also clearly was harmless as to the hit-and-run
conviction because, even without Taylor's testimony, the record
contained overwhelming evidence that appellant was driving at
- 8 -
the time of the accident. Appellant admitted to Dodson, a
witness with no known motive to fabricate, that he was driving
at the time of the accident. Within a minute of the accident,
Dodson saw appellant in the driver's seat of the vehicle
attempting to extricate it from the ditch. Appellant posed no
challenge at trial to the accuracy of Dodson's observations and
admitted that Dodson's observations were sufficient to permit
appellant's conviction for driving under the influence.
Finally, appellant fled the scene of the accident when Dodson
left briefly to obtain help. Taylor, whom Dodson saw in the
passenger seat a minute after the accident, was pinned in the
vehicle and had to be cut out. The only evidence in the record
tending to indicate that appellant was not driving at the time
of the accident came from Katherine Christiansen, who believed
she had seen appellant in the passenger seat immediately after
the accident. However, Christiansen admitted that it was dark
and that her identification was based on her seeing the
passenger's neck and nose only. In light of appellant's
admission that he was driving, his flight from the scene and the
fact that Taylor was pinned in the passenger seat immediately
following the accident, we hold that overwhelming evidence
established that appellant was driving, which supported a
finding that appellant was guilty of both offenses. Therefore,
we hold the error in restricting cross-examination of Taylor was
harmless.
- 9 -
II.
JURY INSTRUCTION
Appellant contends the court erred in instructing the jury
that it could infer he intended the natural and probable
consequences of his acts. We disagree.
In Kelly v. Commonwealth, 8 Va. App. 359, 373-74, 382
S.E.2d 270, 278 (1989), we approved the precise jury instruction
at issue in appellant's case. We distinguished that instruction
from the one held unconstitutional in Sandstrom v. Montana, 442
U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). "The
Sandstrom instruction created a mandatory presumption whereas
[the challenged Virginia Model Jury Instruction] created a
permissive inference." Kelly, 8 Va. App. at 374, 382 S.E.2d at
278. Therefore, here, as in Kelly, the instruction, taken in
the abstract, was appropriate.
Although the trial court may have believed the instruction
was "unnecessary," we do not believe that giving it constituted
error. A court should give a proffered jury instruction which
finds support in the evidence so long as it does not confuse the
jury or place undue emphasis on a particular piece of evidence.
See Alexander v. Commonwealth, 28 Va. App. 771, 775, 508 S.E.2d
912, 914 (1999); Terry v. Commonwealth, 5 Va. App. 167, 170, 360
S.E.2d 880, 882 (1987). We also conclude that the instruction
was appropriate in light of the facts of the case. A conviction
for "hit-and-run" pursuant to Code § 46.2-894 requires proof of
- 10 -
knowledge: "'[T]he driver must be aware that harm has been
done; it must be present in his mind that there has been an
injury [to person or property]; and then, with that in his mind,
he must deliberately go away without making himself known.'"
Herchenbach v. Commonwealth, 185 Va. 217, 220, 38 S.E.2d 328,
329 (1946) (citation omitted). The Commonwealth, therefore, was
required to prove that appellant intended to leave the scene
with knowledge of the damaged property. The challenged
instruction permitted the jury to make such a finding.
For these reasons, we affirm appellant's convictions.
Affirmed.
- 11 -