Opinion
Record No. 1801-91-2
May 25, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND ROBERT W. DULING, JUDGE.
Michael Morchower (Lee W. Kilduff; Morchower, Luxton Whaley, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Antonio "Mark Twain" Nelson appeals from his convictions of first degree murder, malicious wounding and use of a firearm in the commission of both offenses. He asserts that the trial court erred (1) in denying his motion for a two-week continuance to secure the presence of a material witness and (2) in admitting into evidence a taped interview in which an investigator told him to "stop lying." For the reasons set forth below, we affirm appellant's firearm convictions and reverse and remand the malicious wounding and murder convictions.
The parties are familiar with the record; consequently, this memorandum opinion recites only those facts necessary to a disposition of the issues before the Court.
I.
In reviewing the trial court's denial of appellant's motion for a continuance, we are guided by the following principles:
"[A] motion for a continuance in order to obtain the presence of a missing witness is addressed to the sound discretion of the trial court whose decision will not be reversed unless the record affirmatively shows an abuse of discretion." This discretion, however, "must be exercised with due regard to the constitutional guaranty of a fair and impartial trial to one accused of crime, and the right to call for evidence in his favor."
Cherricks v. Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d 397, 399 (1990) (citations omitted).
If the expected testimony is competent and material and not merely cumulative, and if it is credible and probably will effect the result, and will likely be obtained at a future trial, and if due diligence has been exercised to secure the attendance of the absent witness, and if the accused cannot safely go to trial without his testimony, generally a continuance will be granted.
Lacks v. Commonwealth, 182 Va. 318, 324, 28 S.E.2d 713, 715 (1944) (citations omitted).
Under the facts in this case, the trial court could reasonably have concluded that appellant failed to exercise due diligence in attempting to obtain Linwood Cosby's presence at trial. Appellant's counsel met with the witness on July 29, but as of August 29, had made no effort to have a summons issued in order to secure the witness' presence at trial on September 11. Counsel also admitted to contacting Linwood Cosby's mother, who said she might be able to get in touch with him. Although counsel left a number where she could call with information as to her son's whereabouts, she never called. Appellant's attorney stated that he was unable to follow up with Cosby's mother on the day before trial because he was out of town and his investigator was attending a funeral. The trial court could also have concluded that the likelihood of locating Linwood Cosby and obtaining his presence at trial on some future date was not reasonably probable. Linwood Cosby's brother, Anthony, was present that day and testified that he had not seen Linwood in a month and had no knowledge of Linwood's whereabouts. In light of the holding in Lacks, we cannot say that the trial court abused its discretion in denying appellant's motion for a continuance.
II.
Appellant also asserts that the trial court erred in admitting into evidence a taped conversation between appellant and an investigator in which that investigator told appellant to "stop lying." The Commonwealth argues that appellant waived his objection to the admission of this testimony by twice calling attention to it himself during closing arguments, thereby attempting to use it to his advantage. Our recent case law makes clear, however, that
[a]n objection to previously introduced testimony is not waived by "the mere cross-examination of a witness or the introduction of rebuttal evidence, either or both." A waiver does not result until the party objecting to the introduction of evidence actually introduces, on his own behalf, evidence that is similar to that to which the objection applies.
McGill v. Commonwealth, 10 Va. App. 237, 244, 391 S.E.2d 597, 601 (1990) (quoting Snead v. Commonwealth, 138 Va. 787, 801, 121 S.E. 82, 86 (1924); Culbertson v. Commonwealth, 137 Va. 752, 757, 119 S.E. 87, 88 (1923)); see Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638-39 (1970). In this case, appellant referred to the challenged evidence only in his closing argument and made no attempt to introduce similar evidence. The actions do not constitute a waiver of his original objection. Accordingly, this assignment of error is properly before us on appeal.
On the merits, appellant contends that this portion of the tape should not have been admitted because it was irrelevant and infringed on the jury's role in judging credibility. Relevancy is a legal determination that is subject to appellate review.League v. Commonwealth, 9 Va. App. 199, 207, 385 S.E.2d 232, 237 (1989), aff'd en banc, 10 Va. App. 428, 392 S.E.2d 510 (1990). In admitting the challenged portion of the tape, the trial judge noted that "it was just a police officer's tactic" and "goes to his demeanor and maintains continuity." After reviewing the transcript and listening to the tape, however, we conclude that the challenged portion was irrelevant and was not probative of appellant's guilt. The jury had already heard the portions of the interrogation that led Officer Hickman to conclude that appellant was lying, and its members were entitled to decide for themselves whether appellant's statements were so inconsistent as to mandate that conclusion, without being influenced by Hickman's personal opinion. In addition, the challenged portion was at the end of the statement, contains no substantive statements from appellant, and occurs after a lull in the interrogation such that it could easily have been severed from the remainder of the tape. For these reasons, we conclude that the trial court erred in admitting this portion of the interrogation tape into evidence.
Even if the trial court erred in admitting these statements into evidence, the error was harmless insofar as it related to the jury's finding of guilt, for an error is harmless where it is inconsequential in comparison to uncontradicted evidence of guilt rebutted only by the inherently incredible testimony of the defendant. Hanson v. Commonwealth, 14 Va. 173, 189, 416 S.E.2d 14, 24 (1992). As long as "'it plainly appears from the record and the evidence . . . that' the error did not affect the verdict," the error is harmless. Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678).
After reviewing the record in this case, we conclude the admission of Officer Hickman's statement that appellant was lying was harmless error as to the jury's finding of guilt. The testimonial, physical and forensic evidence overwhelmingly supported that same conclusion, thereby clearly contradicting appellant's claim of self-defense. Although appellant testified that he shot the victims from across a forty-foot street after they had shot at him, the medical evidence showed that the bullet that killed one of the victims was fired from a distance of less than two feet. Melvin Smith testified that appellant ran up to Jerome Bell and said he was ready to fight again. Although Bell said he did not want to fight, a struggle ensued and Smith heard a gunshot. He then turned to see Bell lying on the ground and appellant pointing a gun at Smith. As Smith turned to run, appellant fired, hitting Smith in the back. Smith also testified that, although he had a gun in his possession, it was not loaded. Randall Coleman gave similar testimony, stating that appellant ran straight up to Bell, repeated several times that Bell "couldn't beat him heads up fighting," and then pulled a gun and shot Bell in the face from a distance of only an arm's length. Appellant then shot Melvin Smith before fleeing the scene. Finally, Coleman corroborated Smith's testimony that the gun in Smith's possession was not loaded. The only reasonable conclusion to be drawn from this evidence was that appellant did not act in self-defense and lied in his statement to Officer Hickman. Because the evidence pointed overwhelmingly to this conclusion, with or without the admission of Officer Hickman's testimony, its admission into evidence, even if error was harmless on the issue of guilt or innocence.
We are unable to conclude, however, that this error was harmless in relation to the length of appellant's sentence.
[A] criminal conviction must be reversed unless "it plainly appears from the record and the evidence given at trial that" the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's factfinding function, that, had the error not occurred, the verdict would have been the same.
Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 911 (quoting Code § 8.01-678). Although our analysis here deals with the length of appellant's sentence as opposed to the verdict of guilt or innocence, we see no reason to apply a different standard in assessing the harmlessness of the error. See, e.g.,Satterwhite v. Texas, 486 U.S. 249 (1988) (in bifurcated capital trial, applying same standard used to evaluate constitutional error in guilt phase to constitutional error occurring in sentencing phase). The Code specifies the precise sentence to be given on the firearms charges of which appellant was convicted, but it provides a range of twenty years to life imprisonment for both first degree murder and aggravated malicious wounding. Here, the jury sentenced appellant to thirty-five years on each of those offenses, far more than the statutory minimum of twenty years. Therefore, we cannot conclude, from the record and the evidence, that the error did not affect those verdicts.
For the aforementioned reasons, we affirm appellant's firearm convictions and reverse appellant's convictions for malicious wounding and murder and remand this case for further proceedings if the Commonwealth be so advised.
Affirmed in part, reversed and remanded in part.