Shavis Donta Holloman v. Commonwealth of Virginia ( 2015 )

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Petty, Chafin and Decker
Argued at Norfolk, Virginia
SHAVIS DONTA HOLLOMAN
OPINION BY
v. Record No. 1319-14-1 JUDGE MARLA GRAFF DECKER
AUGUST 11, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Charles E. Haden for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Shavis Donta Holloman appeals his convictions for second-degree murder, malicious
wounding, attempted robbery, conspiracy to commit robbery, three counts of use of a firearm in
the commission of a felony, and gang participation.1 For the reasons that follow, we affirm the
convictions.
I. BACKGROUND
At trial, the Commonwealth presented evidence regarding two events, each involving a
different victim, Thomas Needham and Rhonda Stubbs. Witnesses testified that the appellant,
known as “S-Dot,” was a “five[-]star general” in the Nine-Trey Bloods criminal street gang.
Prosecution witnesses included Detectives John Baer and Ernest Sales of the City of Hampton
Police Department, and Lieutenant R. Whitehead, an assistant watch commander at the Hampton
Roads Regional Jail. The Commonwealth also presented testimony from Essie
1
The appellant was convicted pursuant to Code §§ 18.2-22, -26, -32, -46.2, -51, -53.1,
and -58.
Hawkins-Whitlock, who was not a member of the gang, as well as Latoya Manning and Stephen
Hayes, who were gang members.
The Commonwealth presented evidence that the appellant and some fellow gang
members attempted to rob Needham on August 22, 2010. The appellant drove several of his
gang affiliates to Needham’s apartment intending to rob him. Four of his accomplices went to
Needham’s door while the appellant waited in the car. They decided not to rob Needham at that
time, in part because Needham’s children were home. When they returned to the car, the
appellant “got upset” and, as the local gang leader, insisted that they complete the robbery.
During the encounter that followed, a fellow gang member, Jamel Carney, shot and killed
Needham.
The prosecution also presented evidence that the appellant shot Stubbs on September 17,
2010. She was leaving a friend’s house with her five-year-old son. The appellant was in the
same area, once again accompanied by other members of the gang. While there, the appellant
encountered a man with whom he “had a conflict,” and the two “exchang[ed] words.” When the
man insulted the appellant and intentionally turned away, the appellant opened fire on the street.2
Stubbs, an innocent bystander, was shot. Detective Sales was in the area and saw “the fire
coming from the firearms, and [from] the trajectory [he] could see it was coming from where [a]
vehicle was located.” Sales immediately stopped the car. The appellant was a passenger and
was later identified as the shooter.
The jury convicted the appellant of all of the charges. He received a life sentence plus an
additional sixty-three years in prison.
2
Detective Sales explained that gang culture does not tolerate disrespect and dictates
“some type of retaliation.”
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II. ANALYSIS
The appellant argues that the trial court erred by: (A) not dismissing the case after the
prosecutor failed to comply with the terms of his cooperation and immunity agreement with the
Commonwealth; (B) trying the charges relating to Needham jointly with those relating to Stubbs;
(C) not striking a particular venireman for cause; (D) allowing a “gang notebook” and related
testimony into evidence; and (E) denying the appellant’s proposed cautionary jury instructions
relating to accomplice testimony.
A. Cooperation and Immunity Agreement
The appellant challenges the interpretation of a written agreement that he entered into
with the Commonwealth. He argues that the trial court erred by not dismissing the charges in
accordance with the contract because the Commonwealth violated its terms.
The cooperation and immunity agreement was prepared by the Commonwealth. The first
two sentences state:
The Hampton Commonwealth Attorney’s Office agrees not
to prosecute you for any violation of the criminal laws of the
Commonwealth of Virginia based on statements provided pursuant
to this agreement for which truthful disclosure is made and the
occurrence of which the Attorney for the Commonwealth has full
and complete knowledge. This use immunity applies [to] any
conversations with the Hampton Police or the Hampton
Commonwealth’s Attorney’s office with respect to knowledge that
you have regarding criminal activity.
The document also states that “[t]he information that you provide to the Attorney for the
Commonwealth during your cooperation will not be used against you, except as otherwise
provided by this agreement.” The appellant and his attorney signed the agreement.
The appellant filed a motion to dismiss the charges against him in accordance with the
cooperation and immunity agreement. He argued that the agreement stated that the
Commonwealth was not going to prosecute him based on statements that he provided pursuant to
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the agreement. The Commonwealth responded that the appellant was indicted based on other
evidence, not the statements that he made in exchange for the agreement.
The trial court concluded that the agreement was limited to “use immunity” and denied
the motion to dismiss. The court also ruled that none of the appellant’s statements made as a
result of the agreement would be admissible at trial, except for impeachment purposes if the
appellant testified.
“On appellate review, the trial court’s interpretation of the agreement is a matter of law
subject to de novo review, while a clearly erroneous standard of review is applied to the trial
court’s factual findings.” Hood v. Commonwealth, 269 Va. 176, 181, 608 S.E.2d 913, 916
(2005). Cooperation and immunity agreements “are contractual in nature and, thus, are subject
to principles of contract law.” Lampkins v. Commonwealth, 44 Va. App. 709, 722, 607 S.E.2d
722, 728 (2005). Further, the reviewing court must interpret the contract as a whole. E.g.,
Schuiling v. Harris, 286 Va. 187, 193, 747 S.E.2d 833, 836 (2013).
In Gosling v. Commonwealth, 14 Va. App. 158, 164, 415 S.E.2d 870, 873 (1992), this
Court described three categories of immunity from prosecution. “Use immunity protects the
witness only from ‘the use of the specific testimony compelled from him under the grant of
immunity,’ but not from evidence obtained as a result of such testimony.” Id. (quoting Kastigar
v. United States, 406 U.S. 441, 450 (1972)). In contrast, “transactional immunity accords
complete immunity from prosecution to the witness for the offense related to compelled
testimony.” Id. A third type of immunity, “[d]erivative use immunity[,] prohibits use against the
witness of evidence even indirectly obtained from his testimony.” Id.
In this case, the first sentence of the agreement specifically states that the
Commonwealth will not prosecute the defendant “based on statements provided pursuant to this
agreement.” The second sentence of the agreement refers to “[t]his use immunity.” Under the
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principle that the contract is construed as a whole, the agreement expressly provided the
appellant with use immunity, not transactional or derivative use immunity. The use immunity
provided the appellant protection only from the Commonwealth using the specific statements he
made in exchange for the agreement.3 The prosecutor averred that the indictments were not
based on those statements. The appellant did not dispute that assertion, nor does he contend that
those statements were admitted at trial. Consequently, the cooperation and immunity agreement
did not require the trial court to dismiss the charges against the appellant.
B. Joinder
The appellant argues that the trial court erred by denying his motion for separate trials.
The Commonwealth contends, as one basis for affirmance, that joinder was proper because to
prove participation in a gang it had to demonstrate two or more predicate criminal acts, at least
one of which was an act of violence.
Rule 3A:10(c) states that “[t]he court may direct that an accused be tried at one time for
all offenses then pending against him, if justice does not require separate trials and (i) the
offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth’s
attorney consent thereto.” Subject to these rules, “[t]he determination as to joinder rests within
the sound discretion of the trial court . . . .” Brown v. Commonwealth, 37 Va. App. 507, 514,
559 S.E.2d 415, 419 (2002); see also Walker v. Commonwealth, __ Va. __, __, 770 S.E.2d 197,
199 (2015). The abuse of discretion standard, “‘if nothing else, means that the trial judge’s
ruling will not be reversed simply because an appellate court disagrees. Only when reasonable
jurists could not differ can we say an abuse of discretion has occurred.’” Tynes v.
3
The appellant correctly characterizes the agreement as inartfully drawn. However, the
rule that “an ambiguous contract is to be construed against the drafter” is applied only where
other rules of construction do not resolve the question of intent and the “evidence is in
equipoise.” Robinson-Huntley v. George Wash. Carver Mut. Homes Ass’n, 287 Va. 425, 431
n.*, 756 S.E.2d 415, 419 n.* (2014).
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Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688, 689 (2006) (citation omitted) (quoting
Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en
banc, 45 Va. App. 811, 613 S.E.2d 870 (2005)).
Where, as here, the defendant did not consent to having his charges tried together, this
Court must evaluate whether the requirements of Rule 3A:6(b) were satisfied. “This rule
provides the ‘trial court [with] limited discretion to order an accused to be tried for more than
one offense at the same time.’” Purvis v. Commonwealth, 31 Va. App. 298, 304, 522 S.E.2d
898, 901 (2000) (alteration in original) (quoting Godwin v. Commonwealth, 6 Va. App. 118,
121, 367 S.E.2d 520, 521 (1988)). Offenses may be tried together “if (1) the offenses are based
on ‘the same act or transaction,’ (2) the offenses are based on ‘two or more acts or transactions
that are connected,’ or (3) the offenses ‘constitute parts of a common scheme or plan.’” Cook v.
Commonwealth, 7 Va. App. 225, 228, 372 S.E.2d 780, 782 (1988) (quoting Rule 3A:6(b)). In
reviewing a trial court’s pretrial ruling allowing joinder of offenses for trial, the appellate court is
not confined to the contents of the pretrial proffers and may rely on evidence presented at trial to
affirm the joinder decision. Allen v. Commonwealth, 58 Va. App. 618, 620-21, 712 S.E.2d 748,
749 (2011) (also holding that an appellate court may not rely on evidence presented at trial to
reverse a pretrial joinder ruling unless the defendant renewed his objection to joinder at the
conclusion of trial).
The Commonwealth argues that the offenses were “connected” under Rule 3A:6(b) due
to the statutory elements of the offense of gang participation. Specifically, it points to the
requirement that the prosecution show that the members of the gang have committed at least two
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predicate criminal acts.4 See Code §§ 18.2-46.1, -46.2. Generally, a “connection” between
multiple offenses is sufficient for joinder to exist where they are “‘so intimately connected and
blended with the main facts adduced in evidence[] that they cannot be departed from with
propriety.’” Spence v. Commonwealth, 12 Va. App. 1040, 1044, 407 S.E.2d 916, 918 (1991)
(quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 273, 176 S.E.2d 802, 806 (1970)).
However, the General Assembly has, in certain circumstances, implicitly modified this
interpretation of the “connection” requirement under Rule 3A:6(b). Commonwealth v. Smith,
263 Va. 13, 18, 557 S.E.2d 223, 226 (2002).
In Smith, the Supreme Court of Virginia considered whether it was appropriate for the
circuit court to jointly try four murders perpetrated by the defendant. Id. at 15, 557 S.E.2d at
224. In that case, the Supreme Court did not address the Commonwealth’s argument that the
murders were connected and shared a common scheme or plan because they were committed as
part of a gang feud. Id. at 16-17, 557 S.E.2d at 225. Instead, the Court evaluated whether the
“gradation” structure within the capital murder statute provided the necessary connection. Id. at
17, 557 S.E.2d at 226. The Court explained that “an aggravating circumstance, which is often a
gradation or nexus crime, is required to elevate the offense from . . . first-degree murder to
4
We recognize that the prosecution did not make this argument below and that the trial
court ruled that the cases could be joined based on a common scheme or plan. “‘An appellate
court may affirm the judgment of a trial court when it has reached the right result for the wrong
reason.’” Debroux v. Commonwealth, 32 Va. App. 364, 371-72, 528 S.E.2d 151, 155 (quoting
Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312, 313 (1992)), adopted upon
reh’g en banc 34 Va. App. 72, 537 S.E.2d 630 (2000). The Supreme Court of Virginia has
explained that “‘[f]ailure to make the argument before the trial court is not the proper focus of
the right result for the wrong reason doctrine.’” Banks v. Commonwealth, 280 Va. 612, 617, 701
S.E.2d 437, 440 (2010) (quoting Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431,
436 (2010)). Instead, “‘[c]onsideration of the facts in the record and whether additional factual
presentation is necessary to resolve the newly-advanced reason is the proper focus of the
application of the doctrine.’” Id. (quoting Perry, 280 Va. at 580, 701 S.E.2d at 436). No
additional facts are necessary for this Court’s decision. Consequently, the record provides an
adequate foundation for the Court to decide the issue on this basis.
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capital murder.” Id. at 18, 557 S.E.2d at 226. It concluded that the General Assembly had,
through the statutory gradation structure, “implicitly modified” the Court’s previous
interpretation of “connected crimes” under Rule 3A:6(b). Id.; see also Code § 8.01-3(D)
(providing that the General Assembly has the power to modify Supreme Court rules and that a
statute prevails over a rule in the event of a “variance” between the two); Creamer v.
Commonwealth, 64 Va. App. 185, 199, 767 S.E.2d 226, 232 (2015) (recognizing that the
Supreme Court rules must be read in harmony with the code). The Court held that the statutory
gradation structure elevating murder to capital murder where a defendant commits two murders
within a three-year period provided the requisite “connection” for joinder under Rule 3A:10(c).
Smith, 263 Va. at 18-19, 557 S.E.2d at 226; see also Doss v. Commonwealth, 59 Va. App. 435,
449-50, 719 S.E.2d 358, 365-66 (2012) (applying Smith to hold that the gradation structure of an
earlier version of Code § 18.2-248 established the connection necessary to join two drug
transactions for trial).
Here, the Commonwealth contends that the offenses involving Needham were connected
to those involving Stubbs because they were both predicate crimes necessary for the gang
participation charge under Code § 18.2-46.2. That code section provides, in pertinent part:
Any person who actively participates in or is a member of a
criminal street gang and who knowingly and willfully participates
in any predicate criminal act committed for the benefit of, at the
direction of, or in association with any criminal street gang shall be
guilty of a Class 5 felony.
Code § 18.2-46.2(A). Based on the requirements of this statute, the Commonwealth had the
burden of proving that the appellant committed a predicate criminal act and that he did so “for
the benefit of, at the direction of, or in association” with a “criminal street gang.” Id.
A “criminal street gang” is:
any ongoing organization, association, or group of three or more
persons, whether formal or informal, (i) which has as one of its
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primary objectives or activities the commission of one or more
criminal activities; (ii) which has an identifiable name or
identifying sign or symbol; and (iii) whose members individually
or collectively have engaged in the commission of, attempt to
commit, conspiracy to commit, or solicitation of two or more
predicate criminal acts, at least one of which is an act of violence,
provided such acts were not part of a common act or transaction.
Code § 18.2-46.1 (emphases added). In order to prove that the Nine-Trey Bloods was a criminal
street gang, the Commonwealth was required to present evidence that (1) it had at least three
people within the organization, (2) one of its “primary objectives or activities” was committing
crimes, (3) it existed as an identifiable gang, and (4) its members had committed “two or more
predicate criminal acts,” at least one of which was violent. Id. (emphasis added); see also
Rushing v. Commonwealth, 284 Va. 270, 277, 726 S.E.2d 333, 337 (2012).
Through Code §§ 18.2-46.1 and -46.2(A), the General Assembly has necessarily
modified the “connection” requirement in Rule 3A:6(b). In the context of the connection of
predicate crimes to a gang participation charge, the definition of “the words ‘connected crimes’”
as offenses “‘so intimately connected and blended with the main facts adduced in evidence[] that
they cannot be departed from with propriety[]’ no longer applies.” See Smith, 263 Va. at 18-19,
557 S.E.2d at 226 (quoting Kirkpatrick, 211 Va. at 273, 176 S.E.2d at 806). Pursuant to these
statutes, a gang participation charge is “connected,” for purposes of joinder, with “two or more
predicate criminal acts, at least one of which is an act of violence,” committed by the gang’s
members. Code § 18.2-46.1. These predicate criminal acts, for purposes of Code § 18.2-46.1,
must not be part of a “common act or transaction” in order to meet the definitional requirement
of “criminal street gang.” Consequently, we hold that the requirement that the Commonwealth
prove two or more predicate criminal acts by the members of the Nine-Trey Bloods provided the
connection between the attempted robbery and murder of Needham, the malicious wounding of
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Stubbs, and the gang participation offense to satisfy Rules 3A:10(c) and 3A:6(b).5 Where, as
here, one offense is admissible to prove an element of another offense, both offenses are
sufficiently connected to satisfy the joinder requirement of Rule 3A:6(b).
Finally, justice does not require that the offenses relating to Needham be tried separately
from those relating to Stubbs. The appellant was not unduly prejudiced by allowing the
Commonwealth to try the charges together, because evidence of both incidents was admissible to
prove an element of the gang participation charge—that the Nine-Trey Bloods was a criminal
street gang under Code §§ 18.2-46.1 and -46.2(A). See Smith, 263 Va. at 19, 557 S.E.2d at
226-27 (holding that the prejudice resulting from the joinder of two counts of murder was
necessary under the relevant statute); Doss, 59 Va. App. at 451, 719 S.E.2d at 366 (explaining
that a joint trial of two drug transactions did not unduly prejudice the defendant because the
“evidence of one offense was necessary to prove a second or subsequent offense”). Generally,
“‘[e]vidence of other offenses is admitted . . . if it tends to prove any relevant element of the
offense charged.’” Commonwealth v. Minor, 267 Va. 166, 172, 591 S.E.2d 61, 65 (2004)
(quoting Satcher v. Commonwealth, 244 Va. 220, 230, 421 S.E.2d 821, 828 (1992)). If the
legitimate probative value of the evidence outweighs its prejudicial effect, it is admitted. Id.
Here, as exhibited by the statutory structure, the General Assembly has “determined the precise
condition” under which two or more offenses may be joined for prosecution “despite the
5
In light of this conclusion, we do not consider the Commonwealth’s argument that the
offenses shared a common scheme or plan. See Smith, 263 Va. at 17-19, 557 S.E.2d at 225-26
(analyzing the Commonwealth’s “overriding alternative argument” that the capital murder statute
supplanted the traditional interpretation of the joinder test). Consequently, we do not address
whether the general goal of promoting the gang’s interest and twenty-six-day time period were
sufficient to meet the “common scheme or plan” requirement of Rule 3A:6(b). See Scott v.
Commonwealth, 274 Va. 636, 646, 651 S.E.2d 630, 635 (2007) (“[T]he term ‘common plan’
describes crimes that are related to one another for the purpose of accomplishing a particular
goal.”); see also Walker, __ Va. at __, 770 S.E.2d at 199-201 (holding that a thirteen-day period
was insufficient to connect four drug transactions under Rule 3A:6(b)).
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prejudice that may result thereafter.” Smith, 263 Va. at 19, 557 S.E.2d at 227; see id. at 17 n.3,
557 S.E.2d at 225 n.3 (rejecting the defendant’s argument that the Commonwealth was required
to try the predicate crimes first, separately from the principal offense, because “nothing in the
[applicable] statute even suggests such a requirement”). Accordingly, in light of the fact that the
offenses were predicate crimes for the gang participation offense, the trial court did not err by
denying the motion for separate trials.
C. Venire
The appellant contends that the trial court erred by not granting his motion to strike a
venire member for cause. He confirmed at oral argument that he does not contend that the
prospective juror should have been disqualified per se as a matter of law. Instead, the appellant
argues that the record shows bias based upon the venireman’s relationship with two of the
Commonwealth’s witnesses and his status as a victim of a violent crime. According to the
appellant, this alleged bias serves as the basis for why the venireman should have been struck for
cause.6
During voir dire, one of the potential jurors stated that he was a retired Hampton police
detective. That prospective juror disclosed that while on duty he had been shot and wounded by
a suspect. The venire member further acknowledged that he knew two of the people on the
Commonwealth’s witness list, a law enforcement officer and a former Assistant
Commonwealth’s Attorney.
6
Only “‘limited categories’” of jurors require “‘per se disqualification.’” Mayfield v.
Commonwealth, 59 Va. App. 839, 846, 722 S.E.2d 689, 693 (2012) (quoting Townsend v.
Commonwealth, 270 Va. 325, 331, 619 S.E.2d 71, 74 (2005)). “This includes the per se
disqualification of certain jurors in order to maintain public confidence in the judicial system.”
Id. Here, the appellant argues only that the prospective juror should have been struck because
the record proved bias. See id. at 847, 722 S.E.2d at 693-94 (holding that the defendant’s public
confidence argument was barred on appeal because, in the trial court, he challenged the juror
only on bias grounds).
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The same venire member represented that he had not formed an opinion as to the
appellant’s guilt or innocence and did not have a bias in favor of the Commonwealth. He also
indicated that he did not know of any reason why he could not be fair and impartial. When asked
if he had ever had a preconception that was wrong, the venireman answered affirmatively. He
explained that during investigations, “you have to get past the initial . . . meeting and . . . come to
understand . . . regardless of how [someone] come[s] off, . . . you get past . . . the outer
appearances.”
The appellant moved to strike the prospective juror for cause on the bases of his
experience as a Hampton police officer, his relationships with an Assistant Commonwealth’s
Attorney and law enforcement witnesses, and his own status as a victim of a shooting. The trial
court denied the motion, finding that the prospective juror had not given any responses indicating
that he could not remain fair and impartial. The venireman was removed from the jury through a
peremptory strike.
In the context of this record, we consider the appellant’s challenge to the court’s refusal
to strike the potential juror for cause. “A trial judge has broad discretion and control over how
voir dire is conducted and the procedure for seating a jury.” Brooks v. Commonwealth, 24
Va. App. 523, 529, 484 S.E.2d 127, 129 (1997). It is well settled that the decision to retain a
prospective juror “‘will not be disturbed on appeal unless there has been manifest error
amounting to an abuse of discretion.’” Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 61, 707
S.E.2d 27, 30 (2011) (quoting Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 732
(2001)). Such deference is given “because the trial court ‘sees and hears the [prospective]
juror’” during the voir dire process. Weeks v. Commonwealth, 248 Va. 460, 475, 450 S.E.2d
379, 389 (1994) (quoting Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391
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(1990)). The trial judge is in the best position to determine whether, despite past experiences or
relationships, the prospective juror is able to remain fair and impartial.
During voir dire, if it appears “to the court that the juror does not stand indifferent in the
cause, another shall be drawn or called and placed in his stead for the trial of that case.” Code
§ 8.01-358. A potential juror should be struck for cause if he or she “‘has any interest in the
cause, or is related to either party, or has expressed or formed any opinion, or is sensible of any
bias or prejudice.’” Mayfield v. Commonwealth, 59 Va. App. 839, 845, 722 S.E.2d 689, 693
(2012) (quoting Townsend v. Commonwealth, 270 Va. 325, 330-31, 619 S.E.2d 71, 74 (2005)).
“Juror impartiality is a question of fact . . . .” Lovos-Rivas, 58 Va. App. at 61, 707 S.E.2d at 30.
Virginia’s appellate courts have considered numerous scenarios in which a venireman has
identified relationships, connections, or personal situations that have not been sufficient to
overturn a trial court’s assessment and decision under the requisite standard of review. For
example, a familial relationship with prosecution witnesses does not show that a prospective
juror was biased. See Mayfield, 59 Va. App. at 848, 722 S.E.2d at 694; cf. George v.
Commonwealth, 242 Va. 264, 275-76, 411 S.E.2d 12, 18-19 (1991) (holding on the facts of the
case that the trial court did not commit manifest error by refusing to exclude for cause a juror
whose son served as a pallbearer at the victim’s funeral). Nor does a venireman’s previous
experience as a victim of a crime similar to that being tried signify that he or she cannot “sit
fairly and impartially in the case.” Webb v. Commonwealth, 11 Va. App. 220, 223, 397 S.E.2d
539, 540 (1990).
In the instant case, despite the prospective juror’s personal experiences and personal
relationships, he gave no indication of bias in favor of the Commonwealth. See Wise v.
Commonwealth, 230 Va. 322, 325, 337 S.E.2d 715, 717 (1985) (explaining that a social
relationship is not a basis for disqualification where the prospective juror’s “responses to
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questions from the bench negate[d] any danger of bias”); cf. Stewart v. Commonwealth, 245 Va.
222, 235, 427 S.E.2d 394, 403 (1993) (affirming the trial court’s retention of a prospective juror
who stated that “in most cases she would believe a police officer’s testimony when it conflicted
with a non-police officer’s testimony”). Here, the prospective juror was forthcoming regarding
his past experiences and relationships, and he indicated that he had not formed an opinion as to
the guilt or innocence of the appellant. He also assured the court that he did not have a bias in
favor of the Commonwealth and that he could hear the case fairly and impartially. The
appellant’s attorney had the opportunity to ask additional questions and did not.
We recognize that there were multiple factors identified by the venireman that could have
provided a basis for a factual finding of bias. However, the trial court, which had the ability to
see the venireman and hear his responses, concluded that the individual could be impartial.
Nothing in this record suggests that the trial court committed manifest error and abused its
discretion by declining to strike the juror for cause. See Yeatts v. Commonwealth, 242 Va. 121,
133-34, 410 S.E.2d 254, 262 (1991) (affirming the trial court’s refusal to excuse a potential juror
for cause where she denied bias in favor of the Commonwealth despite the fact that she was an
employee of the county, was the daughter of a retired deputy sheriff, and had a social
relationship with two investigators who participated in the investigation of the defendant’s case).
Consequently, the trial court did not err in refusing to strike the prospective juror for cause.
D. Admissibility of the Notebook and Related Testimony
The appellant contends that the admission of the “gang notebook” and related expert
testimony by Detective Sales violated the rule against hearsay and his right to confront witnesses
against him as guaranteed by the Sixth Amendment to the Constitution of the United States.
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The prosecution admitted into evidence a notebook allegedly used by the appellant’s
gang.7 Latoya Manning, a Nine-Trey Bloods member, without objection, identified the item as
“the book of Blood knowledge” for the Nine-Trey. She explained that the book contained the
names of the gang’s founders and rules for gang members. Manning also testified that she was
periodically tested on the contents of the book, although she was not allowed to read it herself.
Detective Baer testified that he found the notebook when investigating Needham’s death.
The Commonwealth asked him why he thought that it was a gang notebook, and he responded
that it contained the aliases of the Nine-Trey Bloods gang members. The appellant objected, and
the trial court ruled at that time that the notebook was not admissible.
During Detective Sales’ testimony as an expert on gangs, he explained the culture and
history of the Bloods gang. Sales testified that Nine-Trey was “under the United Blood Nation.”
The Commonwealth asked him if he recognized the notebook. The appellant objected on
hearsay and Sixth Amendment grounds. The court ruled that even though the notebook was
hearsay, the witness could reference it to explain the bases of his opinions. Sales testified that he
recognized the notebook. He said that it “symbolize[d] some of the gang ideologies and g[ave]
some history of the gang.” Sales also explained that he recognized some names of local gang
members, including “S-Dot,” who was listed as the gang’s general.8 The notebook was not
7
The Commonwealth contends that the notebook was not admitted into evidence. The
trial court ruled that the notebook was not admissible during Sales’ and Baer’s testimony,
including when the notebook was marked as Commonwealth’s Exhibit 16. However, after the
initial discussion about the notebook, the parties again addressed its admissibility later in the
trial, and the court overruled the appellant’s objection. The list of Commonwealth exhibits
references the exhibit as “Admitted.” The back of the document is denoted with
“Commonwealth exh. 16 7/9/14 W.T.” Based on the record before the Court, we must conclude
that the notebook was admitted into evidence.
8
The notebook lists the name “SDott,” but not “Holloman,” as the “G,” which Sales
explained meant “general” or “who’s in charge.”
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admitted into evidence during Sales’ testimony. After the Commonwealth presented its last
witness, however, the notebook was admitted as an exhibit over the appellant’s objection.
Generally, when a party objects to a statement as hearsay, the proponent of the evidence
must prove that it is admissible. See Neal v. Commonwealth, 15 Va. App. 416, 420, 425 S.E.2d
521, 523 (1992). In this case, the proponent of the evidence was the Commonwealth. “[T]he
determination of the admissibility of relevant evidence is within the sound discretion of the trial
court subject to the test of abuse of that discretion.” Beck v. Commonwealth, 253 Va. 373,
384-85, 484 S.E.2d 898, 905 (1997); see Henderson v. Commonwealth, 59 Va. App. 641, 649,
722 S.E.2d 275, 279 (2012) (en banc), aff’d, 285 Va. 318, 329, 736 S.E.2d 901, 907 (2013).
This Court will hold that an abuse of discretion has occurred “‘[o]nly when reasonable jurists
could not differ.’” Pope v. Commonwealth, 60 Va. App. 486, 517, 729 S.E.2d 751, 766 (2012)
(quoting Thomas, 44 Va. App. at 753, 607 S.E.2d at 743). However, the admission of “‘clearly
inadmissible’” evidence constitutes an abuse of discretion. See Lawrence v. Commonwealth,
279 Va. 490, 496, 689 S.E.2d 748, 751 (2010) (quoting Commonwealth v. Wynn, 277 Va. 92,
97, 671 S.E.2d 137, 139 (2009)).
Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 2:801(c); see also
Rule 2:801(a) (providing that a “statement” can be “an oral or written assertion”). The term
hearsay encompasses “testimony given by a witness who relates what others have told him or
what he has read.” Lawrence, 279 Va. at 497, 689 S.E.2d at 751; see also Bynum v.
Commonwealth, 57 Va. App. 487, 491, 704 S.E.2d 131, 133 (2011). The notebook contained
statements made by an out-of-court declarant that the prosecution offered for their truth.
Consequently, the notebook, as well as Sales’ testimony derived from the notebook, was hearsay.
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Generally, “hearsay evidence is inadmissible unless it falls within one of the recognized
exceptions” to the rule against hearsay. Robinson v. Commonwealth, 258 Va. 3, 6, 516 S.E.2d
475, 476 (1999); see Godoy v. Commonwealth, 62 Va. App. 113, 119, 742 S.E.2d 407, 410
(2013); see also Rule 2:802. The Commonwealth argued below that the notebook “c[ame] in
through Detective Sales, . . . a gang expert.” An expert witness may testify, in certain
circumstances, to an opinion derived from consideration of inadmissible evidence. See Code
§ 8.01-401.1; Rule 2:703. The exception that allows an expert witness to give an opinion based
upon hearsay, however, applies only in civil cases. Simpson v. Commonwealth, 227 Va. 557,
566, 318 S.E.2d 386, 391 (1984); see Rule 2:703(a). In criminal cases, the rule does not provide
an exception for the admission of hearsay used by an expert in formulating an opinion. See
Simpson, 227 Va. at 565-66, 318 S.E.2d at 391; Rule 2:703(b) (“In criminal cases, the opinion of
an expert is generally admissible if it is based upon facts personally known or observed by the
expert, or based upon facts in evidence.”); Rule 2:803 (listing the exceptions to the rule against
hearsay). The record does not establish an exception to the rule against hearsay for the notebook
or the related testimony. Consequently, the notebook and Sales’ connected testimony were
inadmissible hearsay, and the trial court erred by admitting them into evidence.
We turn next to the appellant’s constitutional argument. The Sixth Amendment provides
a criminal defendant the right to confront the witnesses “‘who bear testimony’ against him.”
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (quoting Crawford v. Washington,
541 U.S. 36, 51 (2004)); see also Sanders v. Commonwealth, 282 Va. 154, 162, 711 S.E.2d 213,
217 (2011). A witness’ out-of-court testimonial statement against a defendant is inadmissible
unless the witness is unavailable and the defendant had a prior opportunity for
cross-examination. Melendez-Diaz, 557 U.S. at 309; Dickens v. Commonwealth, 52 Va. App.
412, 418, 663 S.E.2d 548, 551 (2008).
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In order to trigger the protection, the statement must be testimonial. To determine
whether a statement is testimonial, “we objectively evaluate the circumstances in which the
encounter occur[ed] and the statements and actions of the parties.” Michigan v. Bryant, 562 U.S.
344, 359 (2011). In doing so, this Court “look[s] to all of the relevant circumstances.” Id. at
369; see also Sanders, 282 Va. at 167, 711 S.E.2d at 219. “Although we will not disturb on
appeal decisions regarding the admissibility of evidence absent an abuse of the trial court’s
discretion, we review de novo whether a particular category of proffered evidence is ‘testimonial
hearsay.’” Caison v. Commonwealth, 52 Va. App. 423, 434, 663 S.E.2d 553, 559 (2008)
(citations omitted).
“[A] statement cannot fall within the Confrontation Clause unless its primary purpose
was testimonial.” Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (emphasis added). Testimonial
statements are the “sort [that] cause the declarant to be a ‘witness.’” Davis v. Washington, 547
U.S. 813, 821 (2006). Statements are testimonial when made during a police interrogation and
“‘the primary purpose of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.’” Clark, 135 S. Ct. at 2179-80 (quoting Davis, 547 U.S. at 822).
Statements made “to individuals who are not law enforcement officers . . . are much less likely to
be testimonial than statements to law enforcement officers.” Id. at 2181.
Certain documents, like medical reports created for treatment purposes, are
nontestimonial. Sanders, 282 Va. at 164-65, 711 S.E.2d at 218; see also Walker v.
Commonwealth, 281 Va. 227, 231, 704 S.E.2d 124, 126 (2011) (holding that the introduction of
the automobile industry’s blue book did not violate the Confrontation Clause because it was not
prepared for the purpose of assisting the Commonwealth in convicting the defendant). “This is
so because statements made for medical treatment purposes are not made in anticipation of or for
use in an investigation or prosecution of a crime.” Sanders, 282 Va. at 164, 711 S.E.2d at 218.
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Similarly, business records are not testimonial because they are “created for the administration of
an entity’s affairs and not for the purpose of establishing or proving some fact at trial.”
Melendez-Diaz, 557 U.S. at 324.
The gang notebook was used within the criminal organization for purposes of the gang
and its members. Manning explained that she had been tested on its contents. The record does
not reflect any reason to believe that the notebook was created for the purpose of a criminal
investigation or prosecution. Consequently, the notebook was not testimonial and its admission,
as well as the testimony about it, did not violate the appellant’s Sixth Amendment right to
confront witnesses against him.
In light of our conclusion that the admission of the notebook and the related expert
testimony violated the evidentiary rule against hearsay, we must determine whether that error
was harmless. See Ferguson v. Commonwealth, 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990)
(requiring harmless error review in all cases (citing Code § 8.01-678)). A non-constitutional
error, such as this one, is harmless if, “‘when all is said and done, . . . the error did not influence
the jury, or had but slight effect.’” Ramsey v. Commonwealth, 63 Va. App. 341, 356, 757
S.E.2d 576, 584 (2014) (quoting Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731
(2001)). However, if we “‘cannot say, with fair assurance, after pondering all that happened . . . ,
that the judgment was not substantially swayed by the error, . . . the conviction cannot stand.’”
Id. (quoting Clay, 262 Va. at 260, 546 S.E.2d at 731-32). Relevant to this analysis is whether
“the evidence admitted in error was merely cumulative of other, undisputed evidence.” Ferguson
v. Commonwealth, 16 Va. App. 9, 12, 427 S.E.2d 442, 445 (1993). In considering harmless
error, we examine the full context of the case under these well-established principles.
The Commonwealth relied on the notebook to the extent that it identified the appellant’s
alias, “S-Dot” (which appeared as “SDott” in the notebook), as the “general” of the Nine-Trey
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Bloods, in support of the gang participation charge. The prosecutor did not argue that the
notebook was relevant to the appellant’s other charges. The Commonwealth, however, did
mention the appellant’s status as a five-star general of the gang when asking the jury to impose
the maximum sentences. See generally Zektaw v. Commonwealth, 278 Va. 127, 140, 677 S.E.2d
49, 56 (2009) (“[W]hether a defendant’s sentencing was affected by an error at trial is a factor in
our harmless error analysis.”).
The statement in the notebook that “SDott” was a general was cumulative of the specific
testimony of Commonwealth’s witnesses Manning, Hawkins-Whitlock, and Hayes that the
appellant, “S-Dot,” was a five-star general and gang leader. The prosecution’s case relied
heavily on the testimony of those eyewitnesses. Although the appellant attempted to discredit
them based on their status as accomplices, the appellant’s statements to Detective Baer provided
further corroboration. The version of the Needham murder that the appellant related to Baer
matched the versions of the other witnesses, except that the appellant contended that he only
drove his accomplices to Needham’s apartment. The appellant also acknowledged to Detective
Baer that on the night Needham was killed, he was with Manning, Hayes, Carney, and Jevrayal
Elliot, the appellant’s brother. Additionally, the appellant identified all of his companions as
members of the Nine-Trey Bloods. Lieutenant Whitehead, the security threat group coordinator
at the Hampton Roads Regional Jail, testified, without objection, that the appellant signed a letter
acknowledging that he had “been identified as belonging to a security threat group or having
affiliation with members of a security group.” Whitehead identified the security threat group
with which the appellant was associated as the Nine-Trey Bloods.
The notebook also contained information about the history and rules of the Nine-Trey
Bloods and, more generally, the national Bloods gang. This evidence was duplicative of
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Detective Sales’ uncontested testimony.9 Sales described the origins of the Bloods gang and
explained that Nine-Trey was “under the United Blood Nation.”
The evidence presented at trial overwhelmingly identified the appellant as holding a
leadership role in the gang. Three eyewitnesses identified the appellant as the five-star general
of the gang. The appellant himself admitted to Baer that he associated with Nine-Trey Bloods
members. Additionally, he acknowledged to Whitehead that he was “affiliated” with “a security
threat group.” In light of the strength of the prosecution’s evidence, particularly that which
duplicated information in the notebook, we conclude that the error in admitting the notebook and
the limited related testimony had no substantial influence on the verdicts. Consequently, the
error was harmless.
E. Jury Instructions
The appellant contends that the trial court erred in denying his proposed cautionary jury
instructions. He sought to have the jury instructed on the danger of basing a conviction on
uncorroborated testimony of accomplices Hayes, Manning, and Hawkins-Whitlock. The three
proffered instructions provided:
[Witness’ name] has testified that he[/she] was an accomplice in
the commission of the crime charged in the indictment. While you
may find your verdict upon his[/her] uncorroborated testimony,
you should consider his[/her] testimony with great care and you are
cautioned as to the danger of convicting the defendant upon the
uncorroborated testimony of an accomplice. Nevertheless, if you
are satisfied from the evidence of the guilt of the defendant beyond
a reasonable doubt, the defendant may be convicted upon the
uncorroborated evidence of an accomplice.
See Va. Model Jury Instrs.–Crim. No. 3.400 (2014). The Commonwealth objected to the
instructions, arguing that other evidence corroborated the accomplices’ testimony. The appellant
9
Sales explained that he learned this general information about the Nine-Trey Bloods
from previous arrests, searches, and a “Blood[s] book[]” called “Two Hundred Deep.”
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cited Via v. Commonwealth, 288 Va. 114, 762 S.E.2d 88 (2014), in support of the proposed
instructions. See id. at 115, 762 S.E.2d at 89 (“[A]ccomplice testimony cannot be corroborated
by the testimony of another accomplice.”). The trial court held that Via was not controlling and
rejected the instructions.
It is well established that the decision to grant or deny proffered jury instructions is
within the broad discretion afforded the trial court. Sarafin v. Commonwealth, 288 Va. 320, 325,
764 S.E.2d 71, 74 (2014). “‘The purpose of any jury instruction is to inform the jury of the law
guiding their deliberations and verdict.’” Morgan v. Commonwealth, 50 Va. App. 120, 132, 646
S.E.2d 899, 905 (2007) (quoting Keen v. Commonwealth, 24 Va. App. 795, 807, 485 S.E.2d
659, 665 (1997)). The burden is on the proponent of the instruction “to satisfy the trial court that
the proposed language is a correct statement of the law, applicable to the facts of the case on
trial, and expressed in appropriate language.” Shaikh v. Johnson, 276 Va. 537, 546, 666 S.E.2d
325, 329 (2008).
This Court’s “responsibility in reviewing jury instructions is ‘to see that the law has been
clearly stated and that the instructions cover all issues which the evidence fairly raises.’” Darnell
v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v.
Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). When considering whether a trial court
abused its discretion by denying a defendant’s proffered instruction, “we view the facts relevant
to the determination of that issue in the light most favorable to [the defendant].” Commonwealth
v. Cary, 271 Va. 87, 90-91, 623 S.E.2d 906, 907 (2006).
Although a jury may convict a defendant based solely on accomplice testimony, a trial
court must “warn the jury against the danger of convicting upon such uncorroborated testimony.”
Dillard v. Commonwealth, 216 Va. 820, 821, 224 S.E.2d 137, 138-39 (1976). However, “where
accomplice testimony is corroborated, it is not error to refuse a cautionary instruction.” Id. at
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821, 224 S.E.2d at 139. “The corroborative evidence, standing alone, need not be sufficient
either to support a conviction or to establish all the essential elements of an offense.” Id. at 823,
224 S.E.2d at 140. A cautionary instruction may be refused where other evidence corroborates
“‘material facts which tend to connect the accused with the crime.’” Smith v. Commonwealth,
218 Va. 455, 457, 237 S.E.2d 776, 777 (1977) (quoting Dillard, 216 Va. at 823, 224 S.E.2d at
140).
Based on the state of the law, we address whether sufficient non-accomplice evidence
corroborated the accomplice testimony for the charged offenses. If it did, the trial court did not
abuse its discretion by refusing the respective cautionary instructions.
Turning first to the offenses connected to Needham, the appellant’s own statements,
which were admitted through the testimony of Baer, linked him to the shooting. That testimony
provided that the appellant’s version of events matched the descriptions of Manning and Hayes,
except that the appellant did not admit that he ordered the robbery. Therefore, the accomplice
testimony regarding the Needham-related offenses was corroborated by non-accomplice
evidence.
Regarding the malicious wounding of Stubbs, witnesses Hayes and Hawkins-Whitlock
testified that the appellant and Elliot fired weapons. Hayes also testified that when the police
stopped their car, the appellant placed his .45 caliber gun into Hayes’ lap. Detective Sales
testified that at the time of the shooting, he happened to be nearby and immediately stopped the
car in which the appellant was traveling. He explained that the occupants did not have time to
wash their hands. Forensic tests showed gunshot residue on the appellant’s right hand and both
of Elliot’s hands after the shooting. Testing did not reveal gunshot residue on the hands of the
other occupants of the vehicle. Sales also testified that when the occupants got out of the car, a
.45 caliber weapon fell out of Hayes’ lap. Thus, forensic testing and Sales’ testimony
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corroborated the accounts of Hayes and Hawkins-Whitlock, who testified that the appellant fired
a weapon.
Finally, as to the gang participation offense, this same evidence (the appellant’s
statement, forensic evidence, and testimony of Sales) corroborated the appellant’s knowing and
willful participation in the Nine-Trey Bloods. Further corroboration was provided by the
appellant’s acknowledgment to Whitehead that he belonged to or was affiliated with a security
threat group, which Whitehead identified as the Nine-Trey Bloods.
The record shows corroborating evidence in addition to the testimony of accomplices
regarding each offense. Therefore, the trial court did not abuse its discretion by rejecting the
cautionary instructions relating to accomplice testimony.
III. CONCLUSION
We hold that the cooperation and immunity agreement promised use immunity to the
appellant and, therefore, did not preclude the Commonwealth from prosecuting him for offenses
related to the statement he made in exchange for the agreement. Further, the court did not abuse
its discretion by allowing the offenses to be tried together. The trial court also acted within its
discretion by not striking for cause a venire member who gave no indication of bias. The
admission of the gang notebook and related testimony into evidence was error, but was harmless.
Finally, the trial court did not abuse its discretion by refusing to instruct the jury on the danger of
convicting the appellant based upon uncorroborated accomplice testimony because other
evidence corroborated that testimony. Consequently, we affirm the appellant’s convictions.
Affirmed.
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