Luis Antonio Ortega v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
LUIS ANTONIO ORTEGA
MEMORANDUM OPINION * BY
v. Record No. 0713-94-2 JUDGE JAMES W. BENTON, JR.
JANUARY 30, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
John C. Jones, Jr. (Michael HuYoung; Jane
Chittom; Shuford, Rubin & Gibney, on brief),
for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, Attorney General,
on brief), for appellee.
Luis Antonio Ortega appeals from his convictions for capital
murder and use of a firearm in the commission of capital murder.
Ortega contends the trial judge erred by admitting in evidence
his initial statement to the police and prohibiting him from
fully cross-examining a material witness. We agree that the
trial judge improperly limited cross-examination, and we reverse
the convictions.
I.
The evidence proved that shortly after 1:00 a.m.,
Chesterfield County Police Officer Henry Pletch received a call
concerning a suspicious vehicle. When the officer examined the
vehicle that was parked in a wooded area near an automobile
service station, he learned that the vehicle was registered to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Felicia Ward. As the officer was continuing his investigation,
Ritchie Allred approached the vehicle from the direction of the
service station. Allred told the officer that he was driving the
vehicle, that he had been talking to friends at a nearby motel,
and that he resided at the California Inn in room 202.
As the officer was talking to Allred, he received a report
that two men had been seen jumping the counter at the service
station. The officer told Allred, who did not fit the
description of the men, to leave the area. When the officer
arrived at the service station, he saw the cashier lying dead
behind the counter with a gunshot wound in his chest. A gun was
on the counter. During the investigation, the officer viewed a
video tape from the service station's surveillance camera, and he
recognized Allred and the cashier on the tape. He could not
recognize two other men who appeared on the tape.
After learning of Allred and the vehicle in the woods, three
officers went to the California Inn. At six o'clock that morning
while the officers were watching the inn, they saw Luis Ortega
and Marcus Johnson walk behind the inn and then toward the front
without stopping at any doors. When the officers called to them,
they approached the officers and talked. Ortega explained his
activities and said that he and Johnson were going to room 202 to
meet Felicia Ward.
The officers were aware that Allred drove Ward's vehicle
from the woods near the service station. They also knew that
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Allred said he was staying in room 202. After one of the
officers talked with Ward outside room 202, the officers ended
their encounter with Ortega and Johnson. One of the officers
discovered that Allred was also in room 202 and interviewed him.
Based on information received from Allred, the officers stopped
Ortega and Johnson and arrested them.
Following his arrest and after receiving Miranda warnings,
Ortega confessed that he, Johnson, and Allred were riding in
Ward's vehicle and planning a robbery. Ortega said that he had a
gun when they entered the service station. He further said that
his "mind went blank" when the cashier cursed him, pushed
Johnson, and told them to leave the store. He said that he did
not want to shoot the cashier; however, the gun fired once
because its hammer was cocked.
Ortega, who was fifteen years old, pled guilty to attempted
robbery and use of a firearm in the commission of attempted
robbery. He was tried by a jury and convicted of capital murder
and use of a firearm in the commission of capital murder. He
appeals his convictions for capital murder and use of a firearm
in the commission of capital murder.
III.
At trial during the Commonwealth's case-in-chief, a police
officer testified concerning Ortega's initial conversation with
the officers outside the inn. Ortega's counsel objected and
argued that the Commonwealth was proving evidence of Ortega's
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character and veracity even though he had not testified. Counsel
also asserted that Ortega had confessed to shooting the cashier
and, thus, the defense of alibi was not at issue. The prosecutor
argued that Ortega's state of mind was at issue and that any
evidence tending to show his guilty state of mind was relevant.
We conclude that the trial judge properly allowed the evidence.
The officer testified that Ortega said he and Johnson had
been with Ward until five o'clock on the afternoon of the
previous day. Ortega also said that he was again with Ward until
ten o'clock the evening of the previous day. When he departed at
ten o'clock, he and Johnson visited his friend Tamera. He told
the officers that he and Johnson were just returning from
Tamera's house, where they had been continuously after leaving
Ward at ten o'clock.
Later, in its case-in-chief, the Commonwealth proved through
Tamera's testimony that Ortega left her house eight hours before
he talked to the police officers. The Commonwealth also proved
that in his confession Ortega had admitted being in Ward's
vehicle and at the service station.
"In Virginia, the weight of the evidence or the inferences
to be drawn from circumstances . . . is always a matter for the
jury." Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210,
213 (1949). A jury may properly consider an accused's
contradictory or inconsistent statements to the police as
circumstantial evidence demonstrative of a guilty state of mind.
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See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610
(1981).
In all cases of circumstantial evidence
the conduct of the accused is always an
important factor in the estimate of the
weight of circumstances which point to his
guilt. Where a conviction rests upon
circumstantial evidence, much weight is given
to contradictory statements of material facts
by the accused. Each should be considered
along with the other facts and circumstances
shown in evidence to determine whether, upon
the whole case, the evidence excludes every
reasonable hypothesis consistent with the
accused's innocence.
Toler, 188 Va. at 781, 51 S.E.2d at 213.
The Commonwealth had the burden to show Ortega killed
willfully, deliberately and with premeditation. Code
§ 18.2-31(4). Ortega pled not guilty and, thus, put at issue his
conduct and his state of mind at the time the killing occurred.
Obviously, the jury was not required to believe in its totality
the explanation Ortega gave in his confession.
After assessing Ortega's contradictory statements, the jury
could have inferred that he was trying to conceal his guilt.
Black, 222 Va. at 842, 284 S.E.2d at 610. The Supreme Court has
clearly stated that an accused's "contradictory statements . . .
[may] furnish bases for reasonable inferences that his
explanations were made falsely in an effort to conceal guilt."
Toler, 188 Va. at 782, 51 S.E.2d at 214. Thus, the trial judge
did not err in admitting Ortega's contradictory pre-arrest
statements as evidence tending to prove his state of mind and his
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efforts to conceal his guilt. See also Land v. Commonwealth, 211
Va. 223, 229, 176 S.E.2d 586, 590-91 (1970) (contradictory
statements "which tended to show guilt, when considered with
other evidence, were admissible").
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IV.
Ortega also contends that the trial judge improperly limited
his cross-examination of Richie Allred. Following Allred's
conversation with the officers at the inn, Allred was arrested
for murder, attempted robbery, and use of a firearm. All of
those charges arose from the same incident for which Ortega was
being tried. When Allred testified for the Commonwealth, those
charges were still pending.
Allred testified on direct examination that he, Ortega, and
Johnson lived together at the inn. On the night of the incident
he drove Ward's vehicle to a wooded area and went with Ortega and
Johnson to a nearby entertainment lounge. Later, he and Ortega
walked to the service station to buy a soda. When they entered,
the cashier cursed at Ortega and told him to leave the store.
Allred testified that on a prior occasion the cashier had accused
Ortega of shoplifting and had threatened to call the police.
Allred also testified that after they left the store Ortega said
that he felt like robbing the cashier. Allred testified that he
told Ortega not to bother the cashier and that he did not believe
Ortega was serious. He testified that he went back to the
vehicle in the woods while Ortega and Johnson re-entered the gas
station.
Allred further testified that he was unaware that Ortega had
a weapon. Allred admitted owning a gun. He testified, however,
that he last saw the gun several days before the incident and had
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never seen Ortega with it. When shown the gun found in the
service station, Allred testified that it resembled his gun.
Immediately following Allred's direct examination and prior
to cross-examination, the prosecutor requested a bench
conference. The prosecutor then informed the trial judge that
Allred's bail had been reduced and that Allred had been released
from custody. The prosecutor explained that the bail was reduced
because Allred passed a polygraph examination. The prosecutor
asked the trial judge to restrict Ortega's counsel from pursuing
matters concerning the reduced bail. After hearing counsel's
argument, the trial judge ruled that Allred's counsel could not
ask "if his bond was reduced as a result of favoritism."
Citing Rule 5A:18, the Commonwealth alleges Ortega forfeited
his right to raise this claim on appeal by failing to object at
trial. We disagree. This issue arose when the Commonwealth
objected to an anticipated line of questions by defense counsel.
The record demonstrates that the trial judge was alerted to the
contested issue, heard arguments from both counsel, and had the
opportunity to rule intelligently. The arguments at the bench
conference fulfilled the purpose of 5A:18. See Martin v.
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992).
"Cross-examination is fundamental to the truth-finding
process . . . [and] is an absolute right guaranteed by the
confrontation clause of the Sixth Amendment." Barker v.
Commonwealth, 230 Va. 370, 376, 337 S.E.2d 729, 733 (1985).
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Questioning the motive of a witness "'is a proper and important
function of the constitutionally protected rights of cross-
examination.'" Delaware v. Van Arsdall, 475 U.S. 673, 678-79
(1986)(citation omitted). See also Deavers v. Commonwealth, 220
Va. 14, 16, 255 S.E.2d 458, 459 (1979).
To allow for the exploring of the depths of a witness' self-
interest, "the cross-examiner is not only permitted to delve into
the witness' story to test the witness' perceptions and memory,
but the cross-examiner has traditionally been allowed to impeach,
i.e., discredit, the witness." Davis v. Alaska, 415 U.S. 308,
316 (1974). "One purpose of cross-examination is to show that a
witness is biased and his testimony unreliable because it is
induced by considerations of self-interest." Barker, 230 Va. at
376, 337 S.E.2d at 733. Indeed, "a defendant is entitled to show
that testimony of a prosecution witness was motivated by an
expectation of leniency in a future trial." Whittaker v.
Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). Absent
a showing of abuse in the conduct of the examination, a defendant
has an absolute right to cross-examination of witnesses for bias
or motivation. Hewitt v. Commonwealth, 226 Va. 621, 623, 311
S.E.2d 112, 114 (1984).
Although the Commonwealth told the judge during the bench
conference that Allred's bond had been reduced due to the results
of a polygraph examination, Ortega was entitled to the
opportunity to examine Allred before the jury concerning the
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reduction in his bail and to establish, if he could, that Allred
was given special consideration because of Allred's promise to
testify favorable for the Commonwealth. Allred's motivation and
self-interest were proper areas of inquiry. The Commonwealth's
argument, that it could only rehabilitate Allred by introducing
the polygraph results, was not a proper basis to limit cross-
examination. The trial judge's fear that the jury would learn of
the polygraph could have been assuaged by instruction to Allred.
Indeed, the prosecutor stated that he had "told . . . Allred not
to say anything about a polygraph."
If Allred's motive in testifying was a grant or promise of
leniency, Ortega was entitled to explore it through cross-
examination. The lowering of the bail, whether as part of an
explicit or implicit agreement, may have encouraged Allred to
testify for the Commonwealth. Thus, it may have had a direct
bearing upon the jury's consideration of his credibility. Ortega
had a right to investigate during cross-examination the reasons
why Allred agreed to testify for the Commonwealth. Barker, 230
Va. at 376, 337 S.E.2d at 733-34. Accordingly, we conclude that
the trial judge denied Ortega's Sixth Amendment right of cross-
examination in forbidding any questions regarding the reduction
of Allred's bond. Williams v. Commonwealth, 4 Va. App. 53,
77-78, 354 S.E.2d 79, 93 (1987).
The Commonwealth argues that the judge's restriction of
cross-examination was harmless. We do not agree. To prove a
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constitutional error is harmless, the Commonwealth must show
"beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained." Chapman v. California, 386
U.S. 18, 24 (1967). In his testimony, Allred described Ortega's
anger at the cashier and the role that Ortega played in the
decision to rob the store. Allred also testified that Ortega
"had had problems with [the victim] before" and that Ortega had a
motive to kill the victim. Thus, Allred's testimony was crucial
in the Commonwealth's proof that the killing was "willful,
deliberate, and premeditated." Code § 18.2-31(4). Allred
provided important testimony of Ortega's state of mind and
intent. The only other evidence tending to prove Ortega's frame
of mind prior to the shooting was purely circumstantial.
The record does not establish beyond a reasonable doubt that
if Ortega had been permitted to examine Allred regarding bias and
motivation, the jury would not have rejected Allred's testimony
and the verdict would have been the same. Because the error was
not harmless, we must reverse the convictions and remand for a
new trial.
Reversed and remanded.
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