Anthony Sylvester Gaines v. Commonwealth of VA ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
ANTHONY SYLVESTER GAINES
MEMORANDUM OPINION * BY
v. Record No. 0189-99-2 JUDGE ROBERT P. FRANK
AUGUST 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr.; Public Defender
Commission, on briefs), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Anthony S. Gaines (appellant) appeals his convictions for
malicious wounding and use of a firearm in a malicious wounding
after a bench trial. On appeal, he contends the trial court erred
in: 1) finding his hotel bill inadmissible; 2) failing to give
probative weight to documents tending to prove his whereabouts at
the time of the offenses; 3) prohibiting him from cross-examining
a witness for the Commonwealth regarding promises of favorable
treatment from law enforcement agents other than the
Commonwealth's Attorney; and 4) finding the evidence sufficient to
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
support the convictions. We disagree and affirm the judgment of
the trial court.
I. BACKGROUND
On April 20, 1998, George Stevens, Jr., suffered multiple
gunshot wounds during a drug transaction. Stevens identified
the two men who shot him as appellant and Edward Perry. Stevens
identified Perry during a May 18, 1998 photo spread administered
by Detective Max Matco of the Richmond Police Department.
Stevens identified appellant during a second photo spread
administered by Matco on June 8, 1998. Appellant identified
both men during his trial testimony.
Stevens testified that he walked into an alley to discuss a
drug deal with Perry, while appellant remained in the car in
which they had been riding. While in the alley, Stevens
expressed his unhappiness with the proposed deal and tried to
withdraw from the transaction. Perry reached for his gun, and
he and Stevens struggled. Perry shouted to appellant for
assistance. Stevens testified he saw appellant, who then was
standing on the street, raise his gun. Stevens, who was still
grappling with Perry, tried to maneuver himself so that Perry
would be between him and appellant. Before Stevens could do so,
appellant fired the gun, and Stevens was hit in the back and
shoulder area. Stevens was able to break away from Perry, but
as he ran, he was shot multiple times by a gun fired by Perry.
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Stevens then ran approximately a block, and appellant and Perry
arrived in the car and fired additional shots at him.
Appellant testified that he was in Atlanta, Georgia, on
April 20, 1998, the day of the shooting, with his friend,
Orlando Lightfoot. He stated he did not return to Richmond
until April 23, 1998, because Lightfoot's car broke down in
Atlanta. Lightfoot offered supporting testimony for appellant's
account. Appellant introduced Lightfoot's car repair bill from a
repair shop in Georgia. The trial court received the bill into
evidence, stating it was not received for the "truth of any
written word on [it]," including the fact that the bill was
produced in Atlanta. Appellant also tried to introduce a copy
of a hotel bill from Georgia, but the trial judge ruled the
evidence inadmissible on the basis that it was hearsay.
Appellant did not offer argument as to why the bill was not
hearsay or why the bill should be introduced under an exception
to the hearsay rule.
Appellant's girlfriend, Tyra Johnson, testified that she
spoke by telephone with appellant in Atlanta each day from April
19 to April 22. Appellant introduced Johnson's phone bill into
evidence, which showed calls from her residence were made to
Atlanta on those dates. Appellant's mother, Patricia Thomas,
testified she wired $50 to her son in Atlanta on April 22, and
the money gram showing the transfer was admitted into evidence.
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During cross-examination of Stevens, counsel for appellant
attempted to ask Stevens if he was on the "payroll" of any law
enforcement agencies. The trial judge clarified the question by
asking, "Some plea agreement for a pending offense?" The
prosecutor then indicated that Stevens did not have any such
agreement in the City of Richmond. When counsel for appellant
stated there were other prosecutors in the state, the trial judge
ruled that the "only type of agreement that would be relative to
motive would be some deal made with this Commonwealth's Attorney's
office where his sentence in a pending offense would be lessened
or impaired or reduced based on his testimony." After the trial
judge's ruling, counsel for appellant returned to the
cross-examination of Stevens on an unrelated topic.
II. ANALYSIS
On appeal, appellant contends the trial court erred in: 1)
finding his hotel bill inadmissible; 2) failing to give probative
weight to documents tending to prove his whereabouts at the time
of the offenses; 3) prohibiting him from cross-examining a witness
for the Commonwealth regarding promises of favorable treatment
from law enforcement agents other than the Commonwealth's
Attorney; and 4) finding the evidence sufficient to support the
convictions. We disagree and affirm the judgment of the trial
court.
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A. The hotel bill
Appellant attempted to introduce into evidence a copy of a
bill from a hotel in Atlanta. The trial court did not admit the
bill into evidence, ruling that the bill was hearsay. Appellant
objected to the court's ruling, but he did not offer argument as
to why the bill was not hearsay or why the bill satisfied an
exception to the hearsay rule.
In order for a ruling to be considered as a basis for
reversal, the objection to the ruling must be "stated together
with the grounds therefor at the time of the ruling, except for
good cause shown or to enable the Court of Appeals to attain the
ends of justice." Rule 5A:18.
"The primary function of Rule 5A:18 is to alert the trial
judge to possible error so that the judge may consider the issue
intelligently and take any corrective actions necessary to avoid
unnecessary appeals, reversals and mistrials." Martin v.
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)
(citing Campbell v. Commonwealth, 12 Va. App. 476, 477, 405 S.E.2d
1, 2 (1991) (en banc)).
Appellant did not argue at trial that the bill was not
hearsay or that the bill satisfied an exception to the hearsay
rule. Instead, appellant argued the bill satisfied the best
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evidence rule. 1 When specifically asked by the trial judge to
address the hearsay objection, trial counsel stated, "I know he's
not the custodian of the records, but, I mean, it's a receipt but
it's a copy of a receipt." Trial counsel did not offer grounds
for his objection to the trial judge's ruling as required by Rule
5A:18. On appeal, appellant does not argue the "good cause" or
"ends of justice" exceptions contained in Rule 5A:18 apply. We
hold, therefore, that appellant is procedurally barred from
raising this issue on appeal pursuant to Rule 5A:18.
B. Probative value of documents showing appellant was in Georgia
Appellant offered Orlando Lightfoot's car repair bill and
Tyra Johnson's telephone bill to corroborate Lightfoot's and
Johnson's testimony that appellant was in Atlanta at the time the
shooting occurred.
"The credibility of a witness, the weight accorded the
testimony, and the inferences to be drawn from proven facts are
matters to be determined by the fact finder." Welshman v.
Commonwealth, 28 Va. App. 20, 36, 502 S.E.2d 122, 130 (1998) (en
banc) (citing Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989)).
1
The best evidence rule applies to the admissibility of the
contents of a writing. In essence, the rule requires that "'the
writing itself be produced or, its absence sufficiently
accounted for before other evidence of its contents can be
admitted.'" Charles E. Friend, The Law of Evidence In Virginia
§ 16-1, at 549 (5th ed. 1999).
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In this case, the trial judge was entitled to assess the
credibility of Lightfoot and Johnson and, thereby, accept or
reject their testimony that appellant was in Atlanta on the date
of the shooting. The trial judge rejected their testimony, and,
therefore, chose to give no weight to the exhibits offered in
support of their testimony.
C. Limitation of cross-examination regarding favorable treatment 2
Appellant argues that the trial court improperly limited his
cross-examination of Stevens regarding Stevens' favorable
treatment by law enforcement officers other than the
Commonwealth's Attorney for the City of Richmond. Once the trial
judge ruled that the only relevant agreement would be one with the
Commonwealth's Attorney for the City of Richmond, counsel for
appellant returned to the cross-examination of Stevens on an
unrelated topic.
[W]henever "a question is asked and the
witness is not permitted to answer it," the
proponent of the evidence must make a
proffer of the expected answer in order to
preserve the issue for appeal. Jackson v.
Commonwealth, 98 Va. 845, 846-47, 36 S.E.
487, 488 (1900). This procedure must be
followed because "an appellate court has no
basis for adjudication unless the record
reflects a proper proffer." Whittaker v.
Commonwealth, 217 Va. 966, 968, 234 S.E.2d
79, 81 (1977).
2
On brief, appellant also argues that the trial court
improperly limited appellant's cross-examination of Stevens
regarding prior unadjudicated bad acts. This issue, however,
was not contained in appellant's Questions Presented, as
required by Rule 5A:20(c), and, therefore, will not be addressed
by this Court.
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Gosling v. Commonwealth, 14 Va. App. 158, 167-68, 415 S.E.2d 870,
875 (1992). Furthermore, it is "incumbent upon the defendant to
make the record show the expected answer." Owens v. Commonwealth,
147 Va. 624, 630, 136 S.E. 765, 767 (1927).
In this case, appellant did not proffer Stevens' expected
answer, and, therefore, we do not reach the merits of this
assignment of error because appellant did not properly preserve
the issue for consideration on appeal.
D. Sufficiency of the evidence
Appellant asserts the evidence was insufficient to support
his convictions.
Under familiar principles of appellate
review, we examine the evidence in the light
most favorable to the Commonwealth, the
prevailing party below, granting to it all
reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26
Va. App. 154, 156, 493 S.E.2d 677, 678
(1997). The judgment of a trial court,
sitting without a jury, is entitled to the
same weight as a jury verdict and will not
be set aside unless it appears from the
evidence that it is plainly wrong or without
evidence to support it. See Stevens v.
Commonwealth, 14 Va. App. 238, 240, 415
S.E.2d 881, 882-83 (1992).
Conrad v. Commonwealth, 31 Va. App. 113, 116-17, 521 S.E.2d 321,
323 (1999). "The credibility of the witnesses and the weight
accorded the evidence are matters solely for the fact finder who
has the opportunity to see and hear that evidence as it is
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presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1995).
In this case, the Commonwealth's evidence showed appellant
was one of the two men who shot Stevens. Appellant presented
evidence that he was in Atlanta on the date of the shooting, and,
therefore, could not have committed the subject offenses. It was
within the province of the trial judge, as trier of fact, to
reject or accept the evidence presented by the Commonwealth and
appellant. The trial judge believed the Commonwealth's evidence
that appellant was one of the men involved in the shooting and
rejected appellant's evidence that he was in Atlanta. On appeal,
we will not disturb that finding because it is not plainly wrong
or without evidence to support it.
For these reasons, we affirm the judgment of the trial court.
Affirmed.
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