Singleton v. Commonwealth

Coleman, J.,

dissenting.

The majority reverses Singleton’s robbery, abduction and firearms convictions on the ground that “[ejvidence that Singleton was present in the Food Lion grocery . . . two weeks prior to the *97robbery . . . was not relevant” and because “evidence of another crime . . . was offered to impeach Singleton on a collateral matter.” I respectfully disagree with both holdings. Evidence that Singleton had been in the Food Lion grocery on Crater Road, while collateral, was relevant. Contrary to the majority’s holding, it was not irrelevant evidence that was used simply to impeach Singleton’s credibility on a collateral matter. Furthermore, the fact that Singleton was in the Food Lion grocery after midnight did not prove, directly or inferentially, that Singleton was committing or had committed another crime at the Food Lion grocery. Accordingly, even if the trial judge erred by admitting irrelevant evidence or by allowing impeachment on a collateral issue, as the majority holds, the error is not reversible error because admission of the fact that Singleton had been in Food Lion on Crater Road was not prejudicial.

RELEVANCE

I agree with the majority that evidence that Singleton had been in the Food Lion grocery on another occasion is proof of a collateral fact. However, “[ajdmission of evidence collateral to the issues is subject to the discretion of a trial court,” Norfolk & Western Ry. Co. v. Sonney, 236 Va. 482, 489, 374 S.E.2d 71, 75 (1988), and “[a] trial court exercises a broad discretion in deciding whether collateral evidence is sufficiently relevant to admit in evidence.” Mackall v. Commonwealth, 236 Va. 240, 255, 372 S.E.2d 759, 769 (1988), cert. denied, 492 U.S. 925 (1989). “Evidence upon a collateral issue may be relevant if the fact which it tends to establish will tend to prove or disprove the fact in issue.” Goodloe v. Smith, 158 Va. 571, 584, 164 S.E. 379, 383 (1932). Although proof during the Commonwealth’s case-in-chief that Singleton had been in the Food Lion grocery on Crater Road on another occasion or was familiar with Crater Road would have had little or no tendency, standing alone, to prove that he had robbed the Crater Road Pizza Hut, the fact that he had been on Crater Road or at another Crater Road business on another occasion takes on greater relevance after Singleton, in an effort to discredit the victims’ identification of him, disavowed any familiarity with the location. Evidence that Singleton was in the Food Lion grocery on Crater Road approximately two weeks before he robbed the Crater Road Pizza Hut was relevant.

*98Singleton testified that he did not know the location of the Pizza Hut that he allegedly robbed or the location of Crater Road.1 By doing so, he placed those facts in issue, and they became material. See Lewis v. Commonwealth, 7 Va. App. 596, 602, 376 S.E.2d 295, 298-99 (1989) (citations omitted). Singleton was asserting that, because he did not know the location of Crater Road or the Pizza Hut, he could not have been the person who robbed the employees of the Crater Road Pizza Hut. He was attempting to persuade the jury that because of his unfamiliarity with Crater Road and the Pizza Hut, the victims were mistaken in identifying him as one of the persons who had robbed, abducted, and threatened them with a firearm. Of course, whether Singleton was one of the criminals who robbed, abducted and threatened the Pizza Hut employees with a firearm was a material fact and an essential element of the charged crimes that the Commonwealth was required to prove beyond a reasonable doubt.

As to the probative value of the evidence, although the record does not show the proximity of the Food Lion to the Pizza Hut, whether Singleton had been in other businesses on Crater Road has some tendency, however slight, to prove that he was familiar with Crater Road and was being untruthful in his disavowal. Furthermore, jurors who are from the area may well be familiar with the two businesses on Crater Road. “Evidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case,” and a trial judge does not abuse his or her discretion by admitting evidence that enhances a victim’s account where that account has been contradicted or impeached provided the proba*99tive value outweighs the prejudicial effect. Largin v. Commonwealth, 215 Va. 318, 320, 208 S.E.2d 775, 777 (1974). Whether Singleton knew the location of the Pizza Hut on Crater Road became a fact material to his defense and a fact relevant because it had some tendency to prove that he had been correctly identified by the victims. See Sonney, 236 Va. at 489, 374 S.E.2d at 75 (holding that trial judge abused his discretion by excluding evidence collateral to a material issue where opposing counsel had introduced and “placed emphasis” upon the evidence). Thus, in my opinion, the majority incorrectly holds that the rebuttal evidence that Singleton was in Food Lion was irrelevant or inadmissible because it was collateral in nature.

Of course, all relevant evidence is not admissible. Unless the probative value of relevant evidence outweighs the prejudicial effects that the evidence may have, the evidence is inadmissible. Woodson v. Commonwealth, 16 Va. App. 539, 540, 431 S.E.2d 82, 83 (1993). For reasons that I will explain further, as “disingenuous” as the view may be, I disagree with the majority that evidence showing that Singleton was in the Food Lion grocery after midnight was proof that he was committing or had committed an unrelated crime. Thus, in my opinion, because the evidence that Singleton had been in Food Lion was relevant and because that evidence was not prejudicial, the trial judge did not abuse his discretion by admitting it.

IMPEACHMENT ON COLLATERAL MATTER

While expressing my disagreement with the majority’s holding that the Food Lion evidence was irrelevant, I previously referred to the principle that prohibits a party from impeaching a witness on a collateral issue. The majority further relies upon this principle that

[a] witness may not be cross-examined regarding any fact irrelevant to the issues on trial when that cross-examination is for the mere purpose of impeaching his credit by contradicting him . . . [nor] may [he] be asked about any collateral independent fact “merely with a view to contradict him afterwards by calling another witness.”

Simpson v. Commonwealth, 13 Va. App. 604, 606, 414 S.E.2d 407, 409 (1992) (quoting Seilheimer v. Melville, 224 Va. 323, *100327, 295 S.E.2d 896, 898 (1982)).

That principle does not apply in this case. First, as discussed, the evidence was relevant to disprove a material fact interjected into the case by Singleton. Singleton’s disavowal of the location of Crater Road, if believed, would have discredited the victims’ identification of him as one of the criminals. But moreover, the collateral evidence of whether Singleton had been in Food Lion on Crater Road was not offered solely to impeach “his credit by contradicting him” by thereafter calling another witness to prove that he had been in the Food Lion grocery. See id. at 606, 414 S.E.2d at 409. The rebuttal evidence did more than merely impeach Singleton’s credibility by showing that he had testified untruthfully on an immaterial fact.

OTHER CRIMES EVIDENCE

Even if the majority is correct that the evidence is irrelevant that Singleton knew the location of the Food Lion on Crater Road and that such evidence was an impermissible form of impeachment, the error in admitting it was not prejudicial because “proof that Singleton was in the Food Lion grocery store after midnight was . . . [not] evidence of another crime.” As “disingenuous” as this view may be, I simply do not understand how the majority infers from proof that Singleton was in the Food Lion grocery on Crater Road after midnight was proof that he was there committing a crime.

The majority states that because Singleton was in the grocery “beyond closing time,” a “strong” inference of “nefarious conduct” and of unrelated criminal activity arises. First, the evidence did not tend to establish that Singleton was in Food Lion “beyond closing . . . time.” The record is silent as to when the store closed. But, even if the evidence showed that he was there after “closing time,” that circumstance does not reasonably support an inference that he was there committing a crime. Furthermore, the trial judge ruled inadmissible any evidence that Singleton had robbed the employees of Food Lion or that charges were pending against him for that offense. Except for defense counsel having made reference to the fact that robbery charges were pending against Singleton for the Food Lion offense in his motion to exclude evidence, there is no way, on this record, that the majority would know that a crime had occurred at the Food Lion grocery. The *101majority’s finding that the evidence proved Singleton committed another crime amounts to pure and unwarranted speculation and surmise.

HARMLESS ERROR

Thus, because the evidence that Singleton was in Food Lion does not, in my view, prove an unrelated crime, the admission of the evidence was not prejudicial, and any error in admitting it as irrelevant or as impermissible impeachment was harmless.

Incidents in jury trials come hot and hurrying. From unanticipated sources new problems spring and must be solved without delay. Judges cannot take time off to ponder. These primary purposes are ever before them: All litigants are entitled to one fair trial and to no more; justice must be done and settled rules of law and procedure must be obeyed. If errors beyond those warranted new trials litigation would be unending, for, as we have more than once said, there is no such thing as a perfect trial. Cases sometimes won after long delays might as well never have been won at all.

Remine v. Whited, 180 Va. 1, 12-13, 21 S.E.2d 743, 747 (1942); see Code § 8.01-678. Although questions of relevance and impeachment on collateral issues involve the application of settled rules of law, where “it plainly appears that [the error, if any,] could not have affected the result,” the error is harmless. Lavinder v. Commonwealth, 12 Va. App. 1003, 1008, 407 S.E.2d 910, 912 (1991) (en banc). “The crux of the harmless error analysis is whether the defendant received a fair trial on the merits and substantial justice has been achieved.” Timmons v. Commonwealth, 15 Va. App. 196, 199, 421 S.E.2d 894, 896 (1992). In my opinion, the trial judge did not admit irrelevant evidence nor did he allow impermissible impeachment on a collateral matter, but if the trial judge erred for either reason in admitting the evidence, the error was harmless.

As to the majority’s concern that Singleton was limited in the scope of his cross-examination of the rebuttal witnesses about Singleton being in the Food Lion grocery because he risked disclosure of the fact that Singleton had robbed the employees there, I would simply note that such limitations are always present when relevant evidence is admitted for its limited probative value, but any preju*102dicial aspect is excluded.

CONFRONTATION AND SUFFICIENCY ISSUES

Because I would affirm Singleton’s convictions, I briefly address the remaining issues that the majority was not required to decide.

Singleton contends, for the first time on appeal, that he was denied his Sixth Amendment right to be confronted by his accuser. He bases his claim on the fact that Paul Cathcart, one victim, was not called to testify that Singleton had abducted, robbed and threatened him with a firearm.

We will not consider a question raised for the first time on appeal, Rule 5A:18, even a constitutional question. See Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438, 441 (1991). Furthermore, it is not necessary to apply one of the exceptions to Rule 5A:18 in order to correct a miscarriage of justice. Singleton did not demonstrate good cause for having failed to raise this objection at trial. Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 743, 744 (1987).

As to the sufficiency of the evidence to support the abduction, robbery, and firearms convictions, the testimony of the victims, if credited by the jury, is sufficient to support all the convictions. “It is fundamental that ‘the credibility of witnesses and the weight accorded their testimony are matters solely for the fact finder who has the opportunity of seeing and hearing the witnesses.’ ” Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175, 176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)). The testimony from the victims was not inherently incredible, regardless of conflicts or the inability of a particular victim to make a positive identification of Singleton as a person who committed the crime. Therefore, because the evidence was sufficient, we cannot disturb the verdicts on appeal. Code § 8.01-678; Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991).

In my opinion, the majority does not construe the facts in the light most favorable to the Commonwealth, as the prevailing party, when they find that “the Commonwealth’s attorney established that Singleton knew where Crater was located.” (emphasis added). In response to the Commonwealth’s attorney’s question, “So you know where Crater Road is?,” Singleton responded, “Yeah.” He was saying that, as of the trial date, he knew where Crater Road was. However, the clear import of Singleton’s entire testimony was that at the time of the robbery, he did not know the location of Crater Road or the Pizza Hut. In fact, on brief, Singleton’s counsel acknowledged that “[Singleton] stated that he did not know the location, Crater Road.” (Brief at 6.) When the trial judge ruled admissible the evidence that Singleton had been in Food Lion on Crater Road, he based his ruling on a finding that Singleton “stated emphatically that he did not know anything about the streets of Petersburg and had not been on Crater Road and never been to Food Lion.” The majority draws factual inferences from the evidence that are most favorable to the convicted appellant, contrary to established principles. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).