Opinion
Record No. 2531-92-1
Decided: September 20, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, Thomas R. McNamara, Judge
Affirmed.
Jon M. Babineau (Glen Johnson; Goss, Johnson Meier, on brief), for appellant.
Donald R. Curry, Senior Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Benton, Bray and Retired Judge Gutterman
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Kyle Jordan was convicted in a jury trial of first degree murder, Code Sec. 18.2-32, and use of a firearm in the commission of a murder, Code Sec. 18.2-53.1. On this appeal, he contends that the trial judge erred in allowing the prosecutor to cross-examine a witness concerning a dispute between the witness and the witness's wife. He also contends that the evidence was insufficient to sustain the convictions. We find no error and affirm the convictions.
I.
The evidence at trial proved that Jordan's sister was married to Michael Stiltner, the victim, for approximately eight years. Stiltner and Jordan's sister separated in May of 1991 because of Stiltner's drinking, temper, suicide attempts, and abuse of his wife and children. After the separation, Stiltner contacted her daily and often visited her and his children. Jordan's sister filed with the police a missing person report after Stiltner failed to meet her for a planned lunch on September 16, 1991.
Billy Geiger testified that Jordan came to Robert Ashman's home, where Geiger was living, on the night of September 16. Jordan had blood on his clothes and tennis shoes. Geiger testified that Jordan told him then that he "had done a very bad thing." When Geiger asked Jordan what he had done, Jordan said that he had killed Stiltner in Jordan's apartment. Jordan said that he walked up to Stiltner, hugged him, and shot him in the back of the head. Geiger admitted that he and Jordan were drunk on alcohol and "stoned" on cocaine when Jordan told him of the killing.
Geiger also testified that two weeks before Jordan confessed, Jordan had threatened to kill Stiltner if things didn't get better between his sister and Stiltner. Jordan also said that his sister would give him $150,000 to leave the country and take care of himself.
Robert Ashman testified that Jordan also told him on the night of September 16 that he had killed someone. Ashman said he did not believe Jordan; however, when he went with Jordan to Jordan's apartment the next day, Jordan told Ashman that Stiltner's body was on the balcony. Ashman testified that Jordan pointed to something resembling a carpet or sleeping bag and said that the body was in it. Ashman did not examine the bundle. Ashman further testified that Jordan threatened to kill him if he told the police of the killing.
On September 18, 1991, the police received a report that someone had been shot in Jordan's apartment. Finding no one home, a police officer climbed onto the balcony of the apartment from the outside. Although the balcony was cluttered with trash, various items in bags, and old carpeting, the apartment was in good condition. The officer who entered the apartment saw an unloaded shotgun near the front door. The police officer did not see any blood or a body and left the apartment.
The next day, Jordan's neighbor in the apartment below his saw Jordan and another man carry a large box into Jordan's apartment. The neighbor said she heard a lot of noise, heard the sliding glass door to Jordan's balcony open, and later heard the door close. Although she did not see Jordan leave, she estimated that he was at the apartment five or ten minutes. Later that afternoon, she saw blood dripping from Jordan's balcony and called the police. When the police arrived at Jordan's apartment, they found the apartment ransacked and found Stiltner's body on the balcony wrapped in carpeting.
Although the body was severely decomposed, the autopsy revealed that Stiltner died from a gunshot wound to the back of the head. The medical examiner testified that the bullet entered the back of Stiltner's head slightly to the right of the middle of his skull and at approximately ear level. She testified that the shot that killed Stiltner "most likely" came from no less than one foot away. She also testified that Stiltner's blood alcohol level was 0.05 percent alcohol two days after death.
The evidence at trial proved that after his arrest, Jordan told the police that he shot and killed Stiltner on September 16, 1991. In the statement, he explained that his sister and Stiltner frequently fought and argued. Jordan said that Stiltner was physically abusive to his sister and to the couple's children.
Jordan told police that he overheard Stiltner argue with his sister and threaten to kill her at the beach on the day prior to the shooting. The next day, Stiltner arrived at Jordan's apartment still enraged and again threatened to kill Jordan's sister. He also threatened to kill Jordan if Jordan tried to stop him. Jordan stated that Stiltner was "all coked up" and reached for a pistol that Jordan always carried "in his back." Jordan said that as they struggled for the gun Stiltner released the gun and reached for a shotgun, which was propped up in a nearby corner. He then shot Stiltner in the backside of his head.
Jordan told police that after killing Stiltner, he became nervous and left the apartment for a few hours. When he returned he wrapped Stiltner's body in a sleeping bag with the intention of disposing of it. He drove Stiltner's vehicle from the apartment and left it in a parking lot. He stated that he told a person named Robert what had happened and decided not to ask for Robert's assistance because he did not want to get him involved. Jordan also told police that the pistol used to kill Stiltner and other guns he owned had been taken from his apartment in a burglary.
II.
In Jordan's defense, Billy Sutphin testified that he had known Stiltner for many years, that Stiltner had a well-known and deserved reputation for violence, and that Stiltner was known to carry a gun. Sutphin married Jordan's sister nine days after Stiltner's funeral. Sutphin testified that he married Stiltner's widow, whom he had known for more than ten years, out of love for her and concern that her children should have a father. Sutphin admitted that he also was once a "trouble maker" but did not get into fights anymore.
On cross-examination, the Commonwealth's attorney asked Sutphin if he had been arrested a month before trial for beating his wife, Stiltner's widow. Sutphin denied being arrested; however, he admitted that police had come to their residence. When asked why police came to the residence, Jordan objected that the question was irrelevant. The trial judge overruled the objection. Sutphin then explained he had been drinking with his friends and returned home intoxicated. He said that although he never hit his wife, she called the police. When the police arrived they escorted him out of his apartment. Jordan contends that this evidence was irrelevant and prejudicial.
It is well settled that irrelevant evidence is inadmissible. Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208 (1967). It is also well settled that the scope of cross-examination must be judged by the evidence educed during the direct examination.
Once a party has "opened the door" to inquiry into a subject, the permissible scope of examination on the subject by the opposing party is "a matter for the exercise of discretion by the trial court," and we will not disturb the court's action on appeal unless it plainly appears that the court abused its discretion.
Savino v. Commonwealth, 239 Va. 534, 545, 391 S.E.2d 276, 282 (1990) (citation omitted).
The limited cross-examination permitted by the trial judge was well within the trial judge's discretion because Jordan initiated the line of inquiry when he elected to question Sutphin on direct examination about the nature of his relationship with his new wife and Sutphin's conduct as a trouble maker. When Sutphin denied that he was still a trouble maker, evidence that Sutphin's relationship with his wife was such that police had to be called to the home because of his conduct tended to cast doubt on Sutphin's credibility. The trial judge did not abuse his discretion in allowing the limited cross-examination on this issue.
III.
In challenging the sufficiency of the evidence to prove first degree murder, Jordan relies in part on his own account of the circumstances of Stiltner's death. The jury was not required to believe Jordan's account that the killing was in self-defense. See Crumble v. Commonwealth, 2 Va. App. 231, 236, 343 S.E.2d 359, 362 (1986). Geiger testified that Jordan admitted to walking up to Stiltner, hugging him, and shooting him in the back of the head. Moreover, Jordan's conduct after the shooting included a pattern of deliberate deceit and concealment, which the jury was entitled to consider in weighing his conduct and credibility. Therefore, the jury was free to believe Geiger's testimony and to discount Jordan's self-serving version of events. See Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991) (the fact finder is not required to disregard testimony that is not "inherently incredible" or "unworthy of belief.")
Jordan also argues that Geiger's account of the killing cannot be reconciled with the medical examiner's conclusion that the shot that killed Stiltner was "most likely" fired from at least a foot away. We read nothing in the medical examiner's testimony that proved that Jordan was incapable of shooting Stiltner in the manner described by Geiger. The medical examiner's conclusion is not inconsistent with Geiger's testimony that Jordan hugged Stiltner, then shot him. Jordan further argues that if he fired "from a few inches away" he would have risked injury to himself. That fact, assuming it is true, does not prove that Jordan did not take that risk. The evidence was sufficient to prove beyond a reasonable doubt the elements of first degree murder.
For the foregoing reasons, we affirm the convictions of first degree murder and use of a firearm in the commission of a murder.
Affirmed.