Stephon P. Fauntleroy v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and
Senior Judge Hodges
Argued at Alexandria, Virginia
STEPHON P. FAUNTLEROY
v. Record No. 1085-94-4 MEMORANDUM OPINION *
BY JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA OCTOBER 31, 1995
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
R. Scott Pugh for appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Appellant was convicted of first degree murder and sentenced
to life imprisonment. On appeal, he alleges the trial court
erred in admitting into evidence a handwritten message and the
testimony of a handwriting expert, in restricting his cross-
examination of a witness, and in instructing the jury. Finding
no error, we affirm appellant's conviction.
I.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On the morning of August 1, 1993, appellant told an
acquaintance he knew his wife Gloria Fauntleroy had "been
fucking," called her a "bitch," and said if he could not "have
her, nobody else will." Between 12:00 and 1:00 p.m., Daymon
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Coleman saw Gloria crying as she walked on the path through the
woods from her townhouse to Forbes Market. Coleman later saw
appellant on the path, and asked him why Gloria had been crying.
Appellant said, "[W]hen I catch up with the fucking bitch, she's
going to do more than cry."
That afternoon, witnesses saw Gloria talking on a telephone
outside Forbes Market. Appellant was arguing with her and trying
to hang up the phone. Gloria dropped the phone and walked
quickly up the path into the woods. Appellant followed her.
Gloria was not seen alive again.
On August 4, Gloria's body was found in the woods between
her home and Forbes Market. Gloria had died from strangulation
with a ligature.
Two days after Gloria disappeared, appellant told Jeffrey
Armstead he had hit Gloria with a knife. Armstead jokingly asked
appellant, "[Y]ou sure you didn't kill your wife and bury her in
your back yard?" Appellant said, "I didn't mean to hurt her. I
mean, I didn't hurt her. Don't put that on me . . . ."
Appellant reported his wife missing that evening. On August 5,
before police officers advised him that they had found Gloria's
body, appellant told the police that he did not kill his wife.
II.
On a metal panel of a soda machine outside Forbes Street
Market, the police found the written message, "Bitch you will
die! Like the bloody whore you are." The soda machine was near
the telephone witnesses saw Gloria using while arguing with
appellant on August 1. The message had not been present on July
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31, when the store manager cleaned the outside of the machine.
He noticed the writing for the first time on August 3.
Thomas Goyne, an expert in the field of handwriting
analysis, testified that by comparing the message written on the
metal panel with known exemplars of appellant's writing, there
were "indications" appellant had written the first sentence of
the message. There were "limited indications" appellant wrote
the portion of the note ending with "you are." On appeal,
appellant argues that the message and the testimony concerning it
were inadmissible.
"The admission of evidence is left to the broad discretion
of the trial judge. However, if evidence has probative value, it
is normally admissible and should be excluded only when its
probative value is outweighed by policy considerations which make
its use undesirable in the particular case." Farley v.
Commonwealth, 20 Va. App. 495, 498, 458 S.E.2d 310, 311 (1995).
"The standard of review on appeal where the admissibility of
expert testimony is challenged is whether the trial court abused
its discretion." Kern v. Commonwealth, 2 Va. App. 84, 86, 341
S.E.2d 397, 398 (1986). "Relevant scientific evidence is
admissible if the expert is qualified to give testimony and the
science upon which he testifies is reliable. There also must be
a connection between the evidence and the factual dispute in the
case." Farley, 20 Va. App. at 498-99, 458 S.E.2d at 312.
"Expert testimony is appropriate to assist triers of fact in
those areas where a person of normal intelligence and experience
cannot make a competent decision." Swiney v. Overby, 237 Va.
3231, 233, 377 S.E.2d 372, 374 (1989).
Appellant challenged neither Goyne's qualifications as an
expert nor the reliability of the science in his area of
expertise. Appellant's sole objection was that Goyne was not
able to conclude to a reasonable degree of certainty that the
writing on the panel was appellant's. The trial judge found that
appellant's objection went to the weight, not the admissibility,
of the evidence.
"[A]n expert opinion 'based on a "possibility" is
irrelevant, purely speculative and, hence, inadmissible.'"
Hubbard v. Commonwealth, 243 Va. 1, 13, 413 S.E.2d 875, 881
(1992) (quoting Spruill v. Commonwealth, 221 Va. 475, 479, 271
S.E.2d 419, 421 (1980)). Goyne's testimony about the writing on
the panel, however, was not based upon a "possibility." Rather,
it was founded upon Goyne's scientific study of the writing on
the metal panel and the known exemplars of appellant's writing, a
comparison Goyne was qualified to perform. Goyne's opinion was
not inadmissible merely because he could not specifically
conclude that appellant wrote the message on the panel. The
expert carefully described the range of conclusions which could
be reached as a result of his scientific examination. His range
of conclusions began with the ability to identify the writer to
the exclusion of all others to categorically eliminating a
writer. From absolute identification the steps drop to strong
indications, indications, limited indications, cannot be
eliminated and then the reverse. Goyne's qualifications of his
findings affected only the weight to be given the evidence, not
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the admissibility, as the trial judge properly ruled. See
Hetmeyer v. Commonwealth, 19 Va. App. 103, 110, 448 S.E.2d 894,
899 (1994). See also Seneca Falls Greenhouse & Nursery v.
Layton, 9 Va. App. 482, 487, 389 S.E.2d 184, 187 (1990) (the
manner in which a jury may weigh the opinion of an expert "has
nothing to do with its admissibility"). Thus, the trial judge
did not abuse his discretion in admitting Goyne's testimony.
III.
While incarcerated awaiting trial, appellant told Keith
Willis, another inmate, "Yeah, I did it. They'll never get any
evidence to convict me. They're dumb as hell."
On voir dire, Willis revealed his prior criminal charges and
the disposition of those charges. While serving time in the
Chesterfield County jail for a conviction of grand larceny,
Willis gave the police information about an individual in Florida
to retaliate against that person, but the police did not act upon
the information. Also while in the Chesterfield jail, Willis was
arrested for grand larceny and making a false report to the
police in Spotsylvania County. Willis pled guilty to petit
larceny, and the false report charge was dropped.
In Stafford County, Willis pled guilty to grand larceny,
receiving a three-year reduction in his suspended sentence in
exchange for his truthful testimony against appellant. While
incarcerated in the Stafford County jail, Willis told the FBI
that Michael Green, another inmate, had discussed planting a car
bomb. Green subsequently was charged with attempting to kill a
prosecutor, but Willis was offered nothing by the federal
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authorities for the information he provided.
Before appellant's trial, Willis had never testified in
court against anyone. At the time of trial, Willis was
incarcerated, but had no charges against him pending disposition.
Appellant argued at trial that he should be able to ask
Willis about the "deals" he had made with the prosecution
concerning his other past convictions. Appellant conceded he had
no evidence Willis had made any such deal or ever had "any slack
cut" in a prior case. In fact, Willis stated that none of the
dismissals of any of the charges against him resulted from any
agreement he had made with the prosecuting authorities. The
trial judge refused to allow appellant to ask Willis the proposed
question, but permitted appellant to ask Willis about the number
and nature of prior convictions and the terms of his plea
agreement in Stafford County, including his agreement to testify
against appellant. The court also did not permit appellant to
ask Willis about the two instances where he had offered
information to the police.
Cross-examination is fundamental to the
truth-finding process and is an absolute
right guaranteed to the defendant by the
confrontation clause of the Sixth Amendment.
While the trial court has the discretion to
see that the right of cross-examination is
not abused, this discretion is to be employed
only after the right "has been substantially
and fairly exercised." In exercising the
right, the defendant can elicit "any evidence
. . . which tends to affect the credibility
of [witnesses] or the weight of their
testimony by showing what influences, if any,
were brought to bear upon them."
Shanklin v. Commonwealth, 222 Va. 862, 864, 284 S.E.2d 611, 612
(1981) (citations omitted).
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The trial judge permitted appellant great latitude in his
cross-examination of Willis. In fact, the terms of Willis'
Stafford County plea agreement, including the condition that he
testify against appellant, were revealed to the jury. See
Bradshaw v. Commonwealth, 16 Va. App. 374, 378-79, 429 S.E.2d
881, 884 (1993). Appellant produced no evidence to demonstrate
that Willis, by offering information to law enforcement
authorities on two occasions and receiving nothing in return, was
motivated by self-interest to testify untruthfully at appellant's
trial. In this regard, Willis was in a position no different
than an ordinary citizen who reported suspected criminal activity
to the police. The trial judge did not prevent appellant from
presenting matters to the jury tending to demonstrate that Willis
was biased, and did not abuse his discretion in limiting the
cross-examination of Willis.
Appellant further contends the court should have allowed him
to question Willis about the false report charge, of which
appellant was never convicted. Where it is not relevant to
demonstrate a witness' bias or motive to fabricate, "[e]vidence
of specific acts of misconduct is generally not admissible in
Virginia to impeach a witness' credibility." Banks v.
Commonwealth, 16 Va. App. 959, 963, 434 S.E.2d 681, 683 (1993).
Furthermore, that a witness has merely been charged with a
crime is inadmissible for purposes of impeachment. Dowell v.
Commonwealth, 12 Va. App. 1145, 1147, 408 S.E.2d 263, 264-65
(1991), aff'd on reh'g en banc, 14 Va. App. 58, 414 S.E.2d 440(1992). For these reasons, the trial judge did not err in
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refusing to permit cross-examination of Willis on the matter.
IV.
The following language was appended to instruction 3,
concerning circumstantial evidence: "[T]he theories of innocence
which must be excluded are only those which flow from the
evidence itself. The Commonwealth has no duty to negate the
theories which flow only from the imagination of the defendant's
counsel." Conceding that the instruction correctly stated the
law, see Saunders v. Commonwealth, 18 Va. App. 825, 830, 447
S.E.2d 526, 529 (1994), appellant argues that the appended
language was inappropriate upon the facts of the case.
"A reviewing 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)). The instruction in question
provided the jury with the proper framework to weigh the
evidence, which was largely circumstantial. Considering that
appellant's theory of defense was to show that someone else
murdered his wife, the instruction was applicable to the facts
and circumstances of the case.
Furthermore, "[a] proposed jury instruction submitted by a
party, which constitutes an accurate statement of the law
applicable to the case, shall not be withheld from the jury
solely for its nonconformance with model jury instructions."
Code § 19.2-263.2. Thus, we cannot say that the trial judge
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erred in granting the circumstantial evidence instruction. 1
For these reasons, we affirm appellant's conviction.
Affirmed.
1
Appellant further contends that the prosecutor was
permitted during closing argument to "launch an attack on the
credibility of [his] . . . counsel." However, "errors assigned
because of a prosecutor's improper comments or conduct during
closing argument will not be considered on appeal unless the
accused timely moves for a cautionary instruction or for a
mistrial." Morris v. Commonwealth, 14 Va. App. 283, 286-87, 416
S.E.2d 462, 464 (1992) (en banc). Appellant did neither in this
case, and our consideration of this argument is barred.
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