Scott v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Overton
Argued at Norfolk, Virginia

TYRONE CHRISTOPHER SCOTT
OPINION BY
v. Record No. 2713-95-2 JUDGE ROSEMARIE ANNUNZIATA
JUNE 17, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge

Craig S. Cooley for appellant.

Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Following a jury trial, appellant, Tyrone Christopher Scott,

was convicted of second degree murder and robbery. Appellant

contends that the trial court erred in limiting the scope of his

cross-examination of one of the Commonwealth's witnesses on the

issue of that witness' bias or motive to testify. We find that

the trial court erred, but, under the facts of this case, we find

the error to have been harmless and affirm appellant's

convictions.

I.

Zenobia Jones and Tamika Young testified for the

Commonwealth concerning the events in question. They testified

that Jones, Young, Kimberly Taylor and appellant spent the day

drinking and taking drugs at Jones' home. Joseph Ford joined the

group early the same evening. During the course of the evening,
a dispute arose over Ford's payment for sexual acts he engaged in

with Young.

Young had decided to forego payment when Taylor intervened

and demanded that Ford pay Young. Taylor and Ford began fighting

and eventually drew the attention of appellant, who was Taylor's

ex-boyfriend. Together, appellant and Taylor fought Ford to the

ground, where they continued to hit him. Ford was released when

he agreed to pay, but shortly thereafter he ran away.
Taylor and appellant gave chase, caught up with Ford and

resumed hitting him, this time more aggressively. Taylor hit

Ford with a glass object as appellant held Ford down. Appellant

and Taylor were trying to get money from Ford, which Ford held in

his mouth. When it appeared Ford would not give her any money,

Taylor "got mad" and stated, "shoot, forget it. I'm just going to

kill him." Taylor went to the kitchen and returned with an

object which she used to hit Ford while appellant continued to

hold Ford down. Appellant resumed hitting Ford, stating he was

going to get the money. Taylor continued hitting Ford and

eventually strangled him with a belt. Appellant held Ford while

Taylor strangled him. Ford fell to the couch, and appellant and

Taylor dragged him outside. After returning inside, appellant

gave Taylor some blood-stained money. Ford was killed in the

course of the fight. Later that evening, appellant told his

sister, "we just killed a dude."

Linwood Wiggins, Jr. also testified for the Commonwealth.

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Wiggins testified that, while in jail, appellant told him he had

beaten Ford in the head with an ashtray because Ford had $1,000.

Wiggins further testified that he had been convicted of five or

six felonies as well as misdemeanors involving stealing.

On cross-examination, Wiggins admitted that his criminal

record reflected seven felony convictions. Wiggins also

testified that he faced a pending sentencing proceeding on three

felony charges in a different judicial circuit. Wiggins stated

his understanding that the sentence he would receive for his

recent convictions would likely relate to his prior convictions.

Wiggins stated that although he was not "promised" anything, the

Commonwealth had agreed to make Wiggins' sentencing judge "aware"

of his cooperation. Wiggins agreed that he was testifying,

hoping "they don't give me the 15 years the charges carry."
Appellant's counsel then attempted to ask Wiggins about the

date and nature of each of his felony and misdemeanor

convictions, but, upon the Commonwealth's objection, the court

ruled that only inquiry into felonies and misdemeanors involving

moral turpitude was relevant. In a subsequent proffer,

appellant's counsel attempted to clarify his position. He argued

that he was entitled to inquire into the number and nature of

each of Wiggins' prior convictions on the theory that the nature

of each of Wiggins' prior convictions would demonstrate the

extent of his motive to testify against appellant, in the "hope"

of receiving leniency at his forthcoming sentencing hearing. The

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court was unpersuaded.

Although the court's initial ruling on the matter was not

clear, it subsequently stated that it did not intend to preclude

appellant's counsel from eliciting testimony concerning the

nature of Wiggins' prior felonies and misdemeanors involving

moral turpitude. Following the court's clarification, counsel

argued that he should not be limited to inquiring about prior

felonies and misdemeanors involving moral turpitude, although he

stated he would "prefer that middle ground rather than no

ground." However, appellant's counsel made no further attempt to

elicit testimony concerning Wiggins' prior convictions for

felonies and misdemeanors involving moral turpitude. The court

also refused counsel's request to elicit testimony on Wiggins'

other convictions, viz., his misdemeanors not involving moral

turpitude, further stating that counsel had elicited testimony

concerning Wiggins' "hope" or "expectation" to receive some

consideration for leniency at his forthcoming sentencing. 1
II.

Appellant contends that the court erred in limiting his

inquiry on cross-examination into the nature of Wiggins' prior

criminal convictions. Initially, we note that the trial court

did not limit inquiry into the nature of all of Wiggins' prior
1
Appellant proffered Wiggins' criminal record to the
trial court. While Wiggins' criminal record appears nowhere in
the record on appeal, it is manifest from our reading of the
record that Wiggins had been convicted of misdemeanors not
involving moral turpitude.

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convictions. Instead, the trial court limited appellant's

cross-examination only as it concerned misdemeanors not involving

moral turpitude. Although there was some initial confusion on

the issue of appellant's inquiry into the nature of Wiggins'

prior convictions for felonies and misdemeanors involving moral

turpitude, the trial court made clear that it would allow

appellant to make such inquiry. Appellant's counsel clearly

understood the court's clarification, stating that he would

"prefer that middle ground rather than no ground." The issue on

appeal, therefore, is limited to the trial court's refusal to

allow appellant to cross-examine Wiggins concerning his prior

convictions for misdemeanors not involving moral turpitude.
Where the purpose of the inquiry is to impeach a witness'

veracity, cross-examination concerning a witness' prior

convictions is limited to prior felony convictions and

convictions for misdemeanors involving moral turpitude. See,

e.g., Johnson v. Commonwealth, 224 Va. 525, 528, 298 S.E.2d 99,

101 (1982); Chrisman v. Commonwealth, 3 Va. App. 89, 93-100, 348
S.E.2d 399, 401-05 (1986). However, it is error to apply the

principles governing cross-examination for purposes of impeaching

a witness' veracity to limit cross-examination designed to

demonstrate a witness' bias or motive to testify. Brown v.

Commonwealth, 246 Va. 460, 463-64, 437 S.E.2d 563, 564-65 (1993)

("An accused has a right to cross-examine prosecution witnesses

to show bias or motivation and that right, when not abused, is

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absolute. The right emanates from the constitutional right to

confront one's accusers."); Whittaker v. Commonwealth, 217 Va.

966, 967, 234 S.E.2d 79, 80 (1977); Fulcher v. Commonwealth, 226

Va. 96, 99, 306 S.E.2d 874, 876 (1983). We find this to be

precisely the error the trial court committed in the present

case.

It remains only to determine whether the trial court's error

in restricting appellant's right to cross-examination was

harmless beyond a reasonable doubt. Maynard v. Commonwealth, 11

Va. App. 437, 448, 399 S.E.2d 635, 641 (1990) (en banc); Williams

v. Commonwealth, 4 Va. App. 53, 78, 354 S.E.2d 79, 93 (1987);

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); see also

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc) (constitutional error harmless only when

reviewing court able to declare belief that it was harmless

beyond a reasonable doubt). "`The 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, 11 Va. App.

at 448, 399 S.E.2d at 641 (quoting Van Arsdall, 475 U.S. at 684);

see also Williams, 4 Va. App. at 78, 354 S.E.2d at 93; Shanklin

v. Commonwealth, 222 Va. 862, 864-65, 284 S.E.2d 611, 612-13

(1981). Thus, to determine whether the trial error was harmless,

our analysis turns not on the evidence excluded, viz., evidence

of Wiggins' prior convictions for misdemeanors not involving

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moral turpitude, but on the evidence in the record, viz.,

Wiggins' testimony, which was not fully subject to

cross-examination. See Van Arsdall, 475 U.S. at 684; Maynard, 11

Va. App. at 448, 399 S.E.2d at 641; Williams, 4 Va. App. at 78,

354 S.E.2d at 93; Shanklin, 222 Va. at 864-65, 284 S.E.2d at

612-13. As such, our harmless error 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. See Clagett v. Commonwealth, 252 Va. 79, 91,

472 S.E.2d 263, 270 (1996), cert. denied, 117 S. Ct. 972 (1997);

Jenkins v. Commonwealth, 244 Va. 445, 454, 423 S.E.2d 360, 366

(1992), cert. denied, 507 U.S. 1036 (1993). In this case,

Wiggins' testimony is the "improper" evidence we evaluate, to

determine its effect, if any, on the verdict.

Our analysis of the effect of Wiggins' testimony is guided

by specific factors. In determining whether the trial court's

error in limiting appellant's right to cross-examine Wiggins was

harmless, we evaluate:
"the importance of [Wiggins'] testimony in
the prosecution's case, whether [Wiggins']
testimony was cumulative, the presence or
absence of evidence corroborating or
contradicting [Wiggins'] testimony on
material points, the extent of

cross-examination [of Wiggins] otherwise

permitted and, of course, the overall

strength of the prosecution's case."
Williams, 4 Va. App. at 78-79, 354 S.E.2d at 93 (quoting Van

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Arsdall, 475 U.S. at 684); Maynard, 11 Va. App. at 448, 399

S.E.2d at 641-42.

Based on our review of the record, we conclude beyond a

reasonable doubt that the trial court's error was harmless. The

overall strength of the Commonwealth's case against appellant is

manifest. The facts established by testimony of witnesses other

than Wiggins, standing alone, provided overwhelming evidence of

appellant's guilt. That evidence established that appellant

participated, with malice, in the deadly attack on Ford.

Appellant struck Ford repeatedly and held Ford down as Taylor

struck him with various objects and eventually strangled him with

a belt. In the face of Taylor's stated intention to kill Ford,

appellant continued his participation in the attack. Appellant

later told his sister, "we just killed a dude." The evidence

further established that appellant and Taylor sought to take

Ford's money, by force, throughout the attack. After depositing

Ford's body, appellant returned with blood-stained money, the

same money, it could reasonably be inferred, that Ford had placed

in his mouth.
Furthermore, Wiggins' testimony was relatively insignificant

to the Commonwealth's case. Compare Shanklin, 222 Va. at 865,

284 S.E.2d at 613 (evidence sufficient to support conviction in

absence of witness' testimony), and Fulcher, 226 Va. at 99-100,

306 S.E.2d at 876-77 (same), with Brown, 246 Va. at 465, 437

S.E.2d at 565 (witness' testimony only evidence identifying or

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implicating defendant as perpetrator), and Whittaker, 217 Va. at

967, 234 S.E.2d at 80 (same). Wiggins' testimony was

corroborating evidence of appellant's participation in the attack

on Ford and the motivation behind the attack. It did not

materially contradict the testimony of the Commonwealth's other

witnesses, which alone provided evidence sufficient to support

appellant's convictions. 2

Finally, notwithstanding the trial court's exclusion of

misdemeanor offenses not involving moral turpitude as evidence

related to Wiggins' bias, it is clear that appellant was afforded

the opportunity to cross-examine Wiggins extensively on that very

point. The court allowed appellant to elicit testimony

concerning Wiggins' prior convictions for felonies and

misdemeanors involving moral turpitude. The jury was aware of at

least ten of Wiggins' prior convictions, seven of which it knew

were for felonies. The jury knew of Wiggins' forthcoming

sentencing and knew Wiggins believed that his prior criminal

record would likely be relevant to the sentence he received. The

jury was further aware that, in exchange for his testimony,

Wiggins hoped, "they [would not give him] the 15 years the
2
Although only Wiggins' testimony placed an ashtray in
appellant's hand, it is immaterial to appellant's conviction for
second degree murder whether, acting as a principal in the first
degree, appellant struck Ford with an ashtray or whether, acting
as a principal in the second degree, he held Ford down while
Taylor struck him and eventually strangled him. Furthermore,
contrary to the dissent's suggestion, the extent to which
Wiggins' testimony established premeditation is immaterial to
appellant's conviction for second degree murder.

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charges carry." In short, the issue of Wiggins' bias and motive

to lie was clearly before the jury; the jury knew that Wiggins

hoped to avoid a long sentence in his three pending cases and

that Wiggins knew the number of his prior convictions, both

misdemeanor and felony, could bear on the length of the sentence.

Wiggins' bias could have been further underscored and developed

only by disclosure of additional criminal conduct that was

manifestly of a less serious nature than the conduct of which the

jury was aware.
In sum, based on our review of the overwhelming evidence of

appellant's participation in the crimes, the cumulative nature of

Wiggins' testimony, and the significant opportunity appellant was

provided to present evidence concerning Wiggins' bias or motive

to testify, we conclude beyond a reasonable doubt that any error

in refusing to allow cross-examination with respect to Wiggins'

prior convictions for misdemeanors not involving moral turpitude

was harmless.

Accordingly, appellant's convictions are affirmed.

Affirmed.

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Benton, J., dissenting.

The trial judge erred in limiting Tyrone Scott's counsel's

cross-examination of Linwood Wiggins, the inmate who testified

for the Commonwealth. The questioning related to Wiggins' bias

and, thus, tended to undermine his credibility.
An accused 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, 464, 437 S.E.2d 563, 564-65

(1993).

The majority holds that the trial judge's error was

harmless. I disagree. The rule is well established that "'[a]

fair trial on the merits and substantial justice' are not

achieved if an error at trial has affected the verdict."

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc) (quoting Code § 8.01-678). Thus, "a

harmless error analysis . . . [is not] simply a sufficiency of

the evidence analysis." Hooker v. Commonwealth, 14 Va. App. 454,

458, 418 S.E.2d 343, 345 (1992). Even if "the other evidence

amply supports the jury's verdicts, [error is not harmless when]

the disputed testimony may well have affected the jury's

decision." Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d

784, 786 (1978).

Both Zenobia Jones and Tamika Young testified for the

Commonwealth concerning the events that occurred in Jones' house.

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Both testified that Jones, Young, Kimberly Taylor, Tyrone Scott,

and the victim had spent most of the day drinking beer and using

both cocaine and heroin. Young testified that in the evening she

and the victim went upstairs, disrobed, and began to engage in

sexual touching. When the victim refused to pay Young for sexual

acts, Taylor entered the room and attempted to force the victim

to pay Young. Young testified that Taylor and the victim began

to fight. During the fighting, the victim hit Young and pushed

her to the floor. After Young was pushed to the floor, she

called Scott to stop the fighting. The testimony of the events

that then followed was in conflict.
Young testified that Scott came upstairs and only became

involved in the dispute after the victim hit Young. Young

testified that Scott asked the victim to give Young the money he

owed her. Young testified that after Scott spoke to the victim,

the victim and Scott started fighting. The fighting moved from

the bedroom to a room downstairs. Young testified that Taylor

hit the victim while Scott held him. She also testified that

Taylor stabbed the victim and strangled him.

Jones testified that sometime after 8:00 p.m. Taylor, Young,

Scott, and the victim were "shoving amongst themselves." Jones

said that she ordered them to leave her house. All of them

walked down the stairs. Jones testified that after she ordered

all of them to leave her house she saw Scott holding the victim

and did not know "whether [Scott] was helping him or steadying

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him." She testified that she did not see Scott hit the victim.

However, as Jones opened the door, Taylor became aggressive and

began hitting the victim with an object. Young testified that

Taylor hit the victim with a glass object and strangled him.

Wiggins, the prison inmate who was not present at the house,

testified that Scott said he hit the victim with an ashtray.

Wiggins also testified that Scott said he got involved in the

dispute because the victim had a thousand dollars.
Scott testified that he only hit the victim to defend

himself when the victim became belligerent. Both Young and

Taylor testified that Scott asked Taylor to stop assaulting the

victim. Indeed, Scott's testimony that he only hit the victim in

self-defense is not inconsistent with the testimony of Jones and

Young.

The testimony concerning Scott's participation was

conflicting. Although Wiggins testified that Scott admitted

hitting the victim with an ashtray, both Young and Jones

testified that Taylor, not Scott, hit the victim with an object.

Young also testified that Taylor stabbed the victim with an

object. Neither Jones nor Young testified that Scott hit the

victim with any object. Thus, the jury was required to resolve

four different versions of the events from the testimony of the

three people who were in the house -- Jones, Young, and Scott --

and Wiggins, who was not present.

Wiggins' testimony was offered by the Commonwealth to fill

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substantial gaps in its case and to support the inferences the

jury was required to draw to convict Scott. Indeed, only

Wiggins' testimony, if believed, proved that Scott hit the victim

with an ashtray and tended to prove that Scott took money from

the victim. Thus, on one hand, if the jury believed Wiggins, the

jury could have reached the same verdicts based solely on his

testimony (i.e., even if the jury disbelieved the testimony of

Young, Jones, and Scott). On the other hand, if the jury had

disbelieved Wiggins' testimony, the jury would have had no

evidence to support a finding that Scott hit the victim with any

object and could only speculate that Scott took money from the

victim or that any money was even taken from the victim.

Moreover, Wiggins' testimony was the only evidence that directly

contradicted Scott's assertion that he acted in self-defense.

Thus, Wiggins' credibility was critically important.
In finding the error harmless, the majority posits that

other witnesses proved facts in dispute. However, that "[o]ther

evidence of a disputed fact [exists in the record] . . . does not

establish that an error is harmless." Hooker, 14 Va. App. at

458, 418 S.E.2d at 345. It is well settled that the credibility

of witnesses, the weight accorded witnesses' testimony, and the

inferences to be drawn from proven facts are matters that are

within the province of the fact finder. See Barrett v.

Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986). When

the trial judge errs in limiting a defendant's cross-examination

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of a witness on a matter that bears on credibility, that error

cannot be harmless where the determination of the sufficiency of

proof involves the jury's assessment of that witness'

credibility. See Waller v. Commonwealth, 22 Va. App. 53, 61, 467

S.E.2d 844, 848 (1996). Because the jury could have founded its

verdicts on Wiggins' testimony, the trial judge's limitation of

Scott's counsel's examination of Wiggins for bias cannot be

harmless.
Wiggins' testimony was the only evidence that tended to

prove Scott premeditated the killing and hit the victim with an

object to take his money. His testimony was the strongest

evidence tending to prove Scott acted with malice. Most

importantly, Wiggins was the only witness whose testimony

directly contradicted Scott's testimony. Thus, it cannot be

said, as the majority asserts, that Wiggins' testimony was merely

cumulative.

The majority concludes that the evidence would have had

little impact because "the issue of Wiggins' bias and motive to

lie was [already] . . . before the jury" and the crimes excluded

were less serious than the crimes admitted. Even assuming that

the jury would have only slightly further discounted Wiggins'

testimony, the effect on the verdict -- the relevant harmless
error issue -- may have been significant. Wiggins' testimony was

critical to the prosecution and extremely damaging to Scott's

defense. Even the slightest further diminution of Wiggins'

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credibility may have had a significant impact on the verdict. As

the Supreme Court stated in Brown:
We do not accept the Commonwealth's
suggestion that any error was harmless. [The
witness'] testimony was the only evidence
directly identifying [the accused] as the
perpetrator of the murder. It is true that
the Commonwealth presented certain
circumstantial evidence that implicated [the
accused], but this evidence alone may not
have been sufficient to support the
conviction.

246 Va. at 465, 437 S.E.2d at 565.
Scott testified that he was merely defending himself. His

testimony was not inconsistent with the testimony of Jones and

Young, the Commonwealth's witnesses. Indeed, upon the evidence

proved at trial, the trial judge instructed the jury that it

could render a verdict of manslaughter, a killing committed

without premeditation or malice. Moreover, based on the verdict

of second degree murder, the conclusion is inescapable that the

jury disbelieved Wiggins' testimony to the extent that it was

offered to prove premeditation. Thus, had Scott's counsel been

permitted to develop fully Wiggins' possible bias, the jury may

have further discounted Wiggins' testimony and rendered a verdict

of manslaughter.

The majority states that "the extent to which Wiggins'

testimony established premeditation is immaterial to [Scott's]

conviction for second degree murder." That assertion ignores the

harmless error inquiry -- whether the error may have affected the

verdict. See Cartera, 219 Va. at 519, 248 S.E.2d at 786.

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Wiggins' testimony was the only evidence that tended to prove

Scott possessed the most blameworthy state of mind --

premeditating a malicious killing. Because Wiggins' testimony

was extremely prejudicial as to malice, it cannot be said that

the error did not affect the verdict simply because the jury did

not convict for first degree murder. Wiggins' testimony may have

caused the jury to find second decree murder instead of finding

manslaughter or acquitting Scott.
Obviously, from the record in this case "[w]e cannot say

beyond a reasonable doubt that, if the jury had believed

[Wiggins'] testimony was unreliable, the[] verdict would have

been the same." Whittaker v. Commonwealth, 217 Va. 966, 970, 234

S.E.2d 79, 82 (1977). We cannot say that if the evidence

relating to Wiggins' bias had been thoroughly explored, the jury

nevertheless would have credited his testimony as proof of malice

and returned the same verdict. See id. That is, we cannot

exclude the possibility that, had Wiggins' bias been further

revealed, the jury would have returned a verdict of voluntary

manslaughter or not guilty.

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