Brian Keith Cooper v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia
BRIAN KEITH COOPER
MEMORANDUM OPINION * BY
v. Record No. 1282-97-1 JUDGE JOSEPH E. BAKER
APRIL 7, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge
James S. Ellenson for appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Brian Keith Cooper (appellant) appeals from judgments of the
Circuit Court of the City of Newport News (trial court) that
approved jury verdicts convicting him of raping, robbing, and
abducting a female (victim) with intent to defile. He contends
the trial court erroneously permitted the Commonwealth to
introduce his prior misdemeanor conviction for sexual assault.
For the reasons that follow, we affirm appellant's convictions.
Upon familiar principles we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Viewed accordingly, the record discloses that on February 1,
1997, victim was grocery shopping at Food Lion at about
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
8:00 p.m. When she walked from the store to her truck, a man she
later identified as appellant forced her into the truck at
knifepoint and drove her to the back of the store, where he raped
and robbed her. She immediately reported the incident to the
police; however, her assailant had departed. Two months later,
she saw appellant walking down the street. She reported to the
police where she had seen appellant, and the police apprehended
him.
Detective Price interviewed appellant on April 10, 1996.
When Price told appellant he was investigating a rape complaint,
appellant "told [Price] he didn't do anything like that because
he was a family man." Price testified to that effect, without
objection, during the Commonwealth's case-in-chief.
Appellant testified at trial and admitted to having sexual
intercourse with the victim, but he contended it was consensual.
He denied having any prior felony convictions but admitted he
had "been convicted of one petit larceny shoplifting charge." On
cross-examination, appellant admitted telling Price that he would
not commit rape because he was a family man, and appellant's
counsel registered no contemporaneous objection to that line of
questioning. The following exchange then took place:
Q What does you saying you're a family man
have to do with an investigation of rape and
abduction?
A Because rape is something violent and,
you know, I don't understand any man that has
to do something like that with a woman.
* * * * * * *
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Q You're saying you've never done anything
like that?
A Never done nothing like that.
With the jury absent, the prosecutor proffered a copy of
appellant's 1990 New Jersey conviction of criminal sexual contact
for "intentinally [sic] touching the . . . [female victim's]
buttocks . . . with the intent to humiliate the victim by
coercion (deception)." Defense counsel objected because the
prior crime was not a rape. In "an overabundance of caution,"
the trial court refused to admit the conviction but agreed to
allow the prosecutor to continue that line of questioning to
attempt to lay a proper foundation.
In the presence of the jury, the cross-examination of
appellant continued:
Q Are you saying that you have never and
would never commit rape, meaning actual
penetration of a woman against her will,
without her consent, is that correct?
A Exactly.
Q All right. Well, how about fondling a
woman without her consent, would you ever do
that? Have you ever done that?
A I would never disrespect a woman like
that.
Appellant's counsel objected, saying that was "a wrong question."
The trial court overruled the objection. When the prosecutor
showed appellant his 1990 New Jersey conviction, appellant's
counsel objected "to this whole line [of questioning]," saying,
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"The door has not been opened this wide and what [the prosecutor
is] doing is completely against the rules." The trial court
overruled the objection. Appellant then again denied
voluntarily, "inappropriately, wrongfully fondling a woman," and
the trial court permitted the Commonwealth to offer the prior
conviction into evidence.
On re-direct examination, appellant's counsel read aloud the
1990 New Jersey conviction. Following that, appellant testified
extensively concerning its contents. He testified that he had
pled guilty to the offense, had forgotten some of the details
surrounding the conviction until the rape charge here had been
made, and guessed he had not had a lawyer represent him in New
Jersey. He described the place the sexual contact had been made,
detailed the time and crowd of people present, denied he had
touched the female's buttocks, explained how the incident
happened, claimed it was an accident, and said the victim had
rejected his attempt to apologize by calling him a "black
B-I-T-C-H."
At the conclusion of re-direct, the trial court, sua sponte,
gave the following limiting instruction:
All right. Ladies and gentlemen, we've
spent some time on this conviction. I want
you to understand that this conviction, in no
way, means that this defendant has an
inclination to commit this kind of offense
that we're dealing with today. It doesn't
mean that he has a general disposition to do
it, so it's not relevant as to whether he's
guilty or not. Please understand that.
It's simply introduced to rebut or
impeach part of his testimony and you should
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only deal with it in that way and no further.
The court asked the jury if they understood, and they responded,
"Yes."
The sole issue presented by this appeal is whether, on this
record, the judgments must be reversed because the trial court
permitted the Commonwealth to introduce a copy of a record of
appellant's prior conviction in the State of New Jersey for "an
act of criminal sexual conduct" upon a female. Appellant
concedes that when he testified, he was subject to being
cross-examined; however, he asserts, he made no statements that
permitted the Commonwealth to examine him on his prior record of
wrongful sexual contact of a female.
The Commonwealth contends the New Jersey record was
admissible for the purpose of impeachment. We agree. Once
appellant made the statement to Detective Price that he was a
"family man" and appellant chose to testify, he was subject to
cross-examination on the statement and its meaning in the context
of the crime charged for purposes of impeachment. When examined
concerning the meaning of his "family man" statement, appellant
responded that "rape" was "violent" and he could not understand
how a man could do that to a woman. Upon further questioning, he
said he also would never "disrespect a woman" by "fondling [her]
without her consent." The trial court then properly permitted
the Commonwealth to show the New Jersey conviction for
impeachment purposes.
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Appellant counters that the prior conviction evidence was
more prejudicial than probative and should not have been
admitted. Determining whether the probative value of evidence
outweighs the possible prejudice is the responsibility of the
trial court and rests within its sound discretion. See Coe v.
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). Here,
no abuse of discretion has been shown.
Appellant's obvious use of the words "family man" and denial
of "disrespect" of a woman were calculated to mislead the jury
and "opened the door" for cross-examination for the purpose of
attacking his credibility. See Santmier v. Commonwealth, 217 Va.
318, 319-20, 228 S.E.2d 681, 682 (1976). Moreover, the trial
court carefully and accurately cautioned the jury how they were
to treat the previous conviction evidence. Nothing in this
record shows the jury disregarded the trial court's instruction,
and we must presume the jury followed the instruction. See
Albert v. Commonwealth, 2 Va. App. 734, 741, 347 S.E.2d 534, 538
(1986) (citing LeVasseur v. Commonwealth, 225 Va. 564, 589, 304
S.E.2d 644, 657 (1983)).
Finally, where an accused unsuccessfully objects to evidence
which he considers improper and, on his own behalf, introduces
further evidence of the same character, he thereby waives his
objection. See Hubbard v. Commonwealth, 243 Va. 1, 9, 413 S.E.2d
875, 879 (1992). Here, appellant waived any objection he may
have had by giving an extensive account of the facts surrounding
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his prior conviction, attempting to show that, although he pled
guilty, he actually was not. Therefore, even if we were to hold
that the trial court erred in admitting the conviction, this rule
of law also would bar our reversal.
For the reasons stated, the judgments of the trial court are
affirmed.
Affirmed.
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