Charles Paul Smith Jr v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued by teleconference
CHARLES PAUL SMITH, JR.
MEMORANDUM OPINION * BY
v. Record No. 0492-01-2 JUDGE ROBERT J. HUMPHREYS
JULY 23, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
W. Park Lemmond, Jr., Judge Designate
C. David Whaley (Anthony G. Spencer;
Morchower, Luxton & Whaley, on briefs), for
appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Charles Paul Smith, Jr. appeals his conviction for two counts
of intentionally causing injury to the personal property of
another, in violation of Code § 18.2-137, after a bench trial in
which he was tried jointly with his wife Barbara Smith. 1 Smith
contends the trial court erred in finding the evidence sufficient
as a matter of law to support the convictions, and in excluding
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this memorandum
opinion has no precedential value, we recite only those facts
necessary to our holding.
1
See Barbara Smith v. Commonwealth, Record #0491-01-2, this
day decided.
evidence establishing bias on the part of one of the complaining
witnesses. For the reasons that follow, we affirm the
convictions.
I. Evidence of Bias
On appeal, Smith first argues that the trial court erred in
"exclud[ing] . . . evidence indicating bias of the complaining
witness, [Cameron Gilliam]." We agree.
During Gilliam's testimony, counsel for Smith's wife and
codefendant, Barbara Smith, asked, "Isn't it true you hired a
lawyer to pursue a civil suit against Mrs. Smith?" The trial
court sustained the Commonwealth's objection, finding it was "not
relevant." Counsel for Smith adopted Mrs. Smith's argument in
this regard. 2
As an initial matter, the Commonwealth contends Smith "never
asked to proffer Gilliam's answer to the question" asked
2
After the trial, as he had been instructed to do by the
trial court, Mrs. Smith's attorney made his proffer concerning
his cross-examination of Gilliam, stating:
I wanted to proffer that to show his bias,
his motive to recoup monetary settlement
with regard to the lost animals, and his
motivation behind his testimony and
subsequent prosecution.
I would further proffer that I have personal
knowledge that he was contacted by an
attorney or that he contacted an attorney,
rather, with regard to civil actions as that
person attorney Herbert Maxey from
Buckingham County contacted me specifically
in regard to settlement of matters related
to personal injuries and loss of the dogs.
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concerning the potential civil suit during trial. However, the
record demonstrates that Smith asked to make the proffer
immediately after the trial court's ruling on the Commonwealth's
objection in this regard and ultimately made it just after the
final ruling, as instructed by the court. We find Smith's proffer
that Gilliam contacted an attorney regarding a civil suit to be
sufficient. 3 Thus, we address the merits of Smith's argument.
It is a fundamental proposition that great latitude is
allowed on cross-examination, and the general rule is that
anything tending to show bias on the part of the witness may be
drawn out. 4 Indeed, "[t]he right of an accused to cross-examine
prosecution witnesses to show bias or motivation, when not
abused, is absolute." 5 Thus, questions which attempt to show
that a witness is biased and his testimony unreliable because it
is induced by considerations of self-interest are always
relevant. 6 Accordingly, under the facts of this case, we hold
3
Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d
79, 81 (1977) ("[I]n the interest of orderly litigation and
appellate review, we hold that a unilateral avowal of counsel,
if unchallenged, . . . of the testimony expected constitutes a
proper proffer . . . .").
4
Corvin v. Commonwealth, 13 Va. App. 296, 300, 411 S.E.2d
235, 238 (1991).
5
Hewitt v. Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112,
114 (1984).
6
Banks v. Commonwealth, 16 Va. App. 959, 962, 434 S.E.2d
681, 683 (1993).
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the trial court erred in refusing to allow Smith's counsel to
question Gilliam regarding the potential civil suit.
Next, we must determine whether the trial court's error in
restricting Smith's right to cross-examination was harmless
beyond a reasonable doubt. 7 We find that it was.
The correct inquiry in determining harmless error in cases
such as this, "'"is whether, assuming that the damaging
potential of the cross-examination were fully realized, [we]
might nonetheless say that the error was harmless beyond a
reasonable doubt."'" 8 Therefore, our harmless error analysis is
similar to harmless error review in cases of improperly admitted
evidence, where the error is held harmless if the record
contains "overwhelming" evidence of guilt. 9 In this case,
Gilliam's testimony is the "improper" evidence we evaluate, to
determine its effect, if any, on the verdict.
Our analysis of the effect of Gilliam's testimony is guided
by specific factors. In determining whether the trial court's
error in limiting appellant's right to cross-examine Gilliam was
harmless, we evaluate:
7
Scott v. Commonwealth, 25 Va. App. 36, 42-43, 486 S.E.2d
120, 123 (1997).
8
Id. (quoting Maynard v. Commonwealth, 11 Va. App. 437,
448, 399 S.E.2d 635, 641 (1990) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986))).
9
Id.
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"'the importance of [Gilliam's] testimony in
the prosecution's case, whether [Gilliam's]
testimony was cumulative, the presence or
absence of evidence corroborating or
contradicting [Gilliam's] testimony on
material points, the extent of
cross-examination [of Gilliam] otherwise
permitted and, of course, the overall
strength of the prosecution's case.'" 10
We find that the error was harmless with regard to each of
Smith's convictions. Indeed, the other complaining witness,
Terry Collins, corroborated Gilliam's testimony in almost every
respect. In addition, the testimony of the law enforcement
officers and the veterinarian who performed autopsies on the two
dogs further corroborated Gilliam's testimony. Thus, Gilliam's
testimony was merely cumulative. Accordingly, we find that the
trial court's error in this regard was harmless beyond a
reasonable doubt.
II. Sufficiency of the Evidence
Smith next contends the evidence was insufficient as a matter
of law to establish he shot the dogs and caused damage to their
collars, as it did not exclude every reasonable hypothesis except
that of guilt. Specifically, Smith argues the evidence reasonably
incriminates his wife, Barbara Smith. We disagree with Smith's
analysis.
When a defendant challenges the sufficiency
of the evidence on appeal, the reviewing
10
Id. (quoting Williams v. Commonwealth, 4 Va. App. 53,
78-79, 354 S.E.2d 79, 93 (1987) (quoting Van Arsdall, 475 U.S.
at 684)).
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court must give the judgment of the trial
court sitting without a jury the same weight
as a jury verdict. The appellate court has
the duty to examine the evidence that tends
to support the conviction and to uphold the
conviction unless it is plainly wrong or
without evidence to support it. 11
Here, although Smith testified that he killed the dogs, he
did not testify to this until after he had rested his case, and
after the trial court had rendered its verdict of guilt concerning
the charges against him. Thus, since the issue is whether the
evidence adduced at Smith's trial was sufficient as a matter of
law beyond a reasonable doubt, the Commonwealth's contention that
his post-trial testimony can be used to support his convictions is
without merit.
However, "[c]ircumstantial evidence 'is as competent and is
entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt.'" 12 "The Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant." 13
Indeed, the credibility of a witness and the inferences to be
11
McCain v. Commonwealth, 261 Va. 483, 492-93, 545 S.E.2d
541, 547 (2001).
12
Taylor v. Commonwealth, 33 Va. App. 735, 737, 536 S.E.2d
922, 923 (2000) (quoting Coleman v. Commonwealth, 226 Va. 31,
53, 307 S.E.2d 864, 876 (1983)).
13
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993).
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drawn from proven facts are matters solely for the fact finder's
determination. 14
The evidence presented before the trial court rendered its
verdict with regard to Smith proved: 1) the hunting dogs belonging
to Gilliam and Collins ran onto the Smith property; 2) shortly
thereafter, three gunshots were heard and the dogs went silent; 3)
the truck was observed parked with its driver's side alongside the
woods, only a few yards from where the bodies of the dogs were
found; 4) only the driver's side door was open as the truck was
parked next to the woods; 5) the driver then got into the truck,
closed the driver's side door and drove the truck toward Gilliam
and Collins; 5) Smith was then seen driving the truck, while Mrs.
Smith sat in the passenger side; 6) a .22 rifle was found in the
truck bed; 7) Smith had a clip of .22 bullets in his pocket; and
8) a .22 bullet matching the rifle was taken from one dog.
Based on this evidence, the trial court specifically found
Smith guilty as a principal in the second degree, finding that the
evidence demonstrated he acted in concert with Mrs. Smith.
Indeed, with the exception of Mrs. Smith's demeanor, no evidence
tended to suggest that she alone caused the damage to the dogs
and/or the hunting equipment attached to the dogs. Thus, viewing
the evidence in the light we must, we do not find the convictions
14
See Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d
473, 476 (1989).
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here were plainly wrong or without competent evidence in support
thereof.
III. Code § 18.2-137
Smith finally argues that the trial court erred in finding
the evidence sufficient to establish a conviction under Code
§ 18.2-137. Specifically, Smith contends the General Assembly
intended the shooting of another person's dog to be prosecuted
under Code § 18.2-144, which makes it a crime to shoot a person's
companion animal.
First, "[i]t is well established that the choice of offenses
for which a criminal defendant will be charged is within the
discretion of the Commonwealth's Attorney," 15 and it is not a
legally cognizable argument for Smith to complain that he was
tried for one crime rather than the different offenses that may
have arisen from his conduct. 16
Code § 18.2-137 provides "[i]f any person unlawfully
destroys, defaces [or] damages . . . any property, real or
personal, not his own . . . he shall be guilty of . . . a Class 1
misdemeanor if the value of or damage to the property . . . is
less than $1,000." Code § 3.1-796.127 specifically defines "[a]ll
dogs and cats [as] personal property." In addition, the Supreme
15
Kauffmann v. Commonwealth, 8 Va. App. 400, 410, 382
S.E.2d 279, 284 (1989) (citing Davis v. Commonwealth, 4 Va. App.
27, 30, 353 S.E.2d 905, 907 (1987)).
16
See id.
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Court of Virginia has defined the term "destroy," in the context
of insurance policies, as often being "applied to an act which
renders the subject useless for its intended purpose, though it
does not literally demolish or annihilate it." 17 Further, Code
§ 3.1-796.114 allows any humane investigator to "lawfully cause to
be destroyed" animals found abandoned or not properly cared for,
under certain circumstances. Code § 3.1-796.115 allows the court
to order an animal to be "humanely destroyed" if the court
determines that the animal has been abandoned, cruelly treated, or
deprived of adequate care. Thus, it is clear that Smith's actions
in killing the dogs fell logically within the proscription of Code
§ 18.2-137.
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
17
Lumbermen's Mutual Casualty Co. v. Keller, 249 Va. 458,
460-61, 456 S.E.2d 525, 526 (1995) (citing Black's Law
Dictionary 449 (6th ed. 1990)).
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