Troy Caple v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
TROY CAPLE
MEMORANDUM OPINION * BY
v. Record No. 0250-00-2 JUDGE JAMES W. BENTON, JR.
SEPTEMBER 25, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
James T. Maloney (Joseph D. Morrissey;
Morrissey & Hershner, on brief), for
appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
A jury convicted Troy Caple of voluntary manslaughter and
possession of a firearm while under the age of eighteen. Caple
contends the trial judge erred by denying him the right to
cross-examine a witness to establish bias and motive to
fabricate. 1 For the reasons that follow, we hold that the error
was harmless, and we affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Caple's brief also presented for review the issue of the
sufficiency of the evidence to support the convictions. The
Commonwealth's brief responded to that issue. The record
establishes, however, that this Court's October 6, 2000 order
granted an appeal only with respect to the issue "[w]hether
[the] trial court erred in denying petitioner the right to
cross-examine a witness as to bias and motive to fabricate." It
denied an appeal on the sufficiency issue "for the reasons set
forth in the order of this Court dated July 28, 2000." We
address only the issue granted for appeal.
I.
JaQuan Ellis was shot outside a nightclub on July 19, 1998,
and died from a gunshot wound that severed blood vessels in his
abdomen. Near his body, the police recovered a cartridge casing
which was ejected from an automatic nine millimeter firearm.
The Commonwealth's case-in-chief included the testimony of
three convicted felons. Shawn Harris, who was incarcerated on a
federal firearm offense at the time of trial, testified that he
was to be released from the federal prison within a month and then
was scheduled to begin serving a state prison sentence for an
unlawful wounding conviction. He had been told that his testimony
"could help" reduce the period of imprisonment he was to serve for
the state conviction.
Harris testified that he and his friend, Troy Caple, were in
the vicinity of a nightclub on Saturday night, or early morning
July 18, when they were attacked by other young men. As he and
Caple engaged in a fistfight with the men, he heard a gunshot.
Harris saw everyone fleeing, and he fled after he saw a young man
fall near Caple. A deputy sheriff, who heard the gunshot,
detained Harris a short distance from the nightclub and seized a
thirty-eight caliber revolver. Harris testified that he had the
revolver during the fight but that he did not display or fire it.
He denied having another firearm and said he did not see Caple
shoot anyone. The police tested Harris' hands for gunpowder
residue after his arrest and found none. The evidence proved
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Harris' revolver had bullets in each chamber and had not been
fired.
Damian Johnson, who was serving a nine-year sentence in a
federal prison for a narcotics conviction, testified that he was
near the nightclub that same night. He saw Caple and Harris, both
of whom he has known for many years, in a fistfight with other
young men. He testified that Caple stepped back from the fight,
displayed a firearm, and fired it. Johnson testified that he did
not know whether Caple shot anyone.
Although Johnson testified that he had received no offers of
assistance for his testimony, he admitted he had not told the
police about the shooting until after he had been arrested for the
narcotics charge. He also testified that he received a reduction
in his federal sentence for his assistance in the federal
prosecution against his codefendant and he was aware that he was
eligible to petition for a further reduction of his federal
sentence.
During cross-examination by Caple's attorney, Johnson
testified as follows:
Q: Before you were arrested, you had heard
all about this offense, hadn't you?
A: Yeah.
Q: It was kind of the talk of the
neighborhood, right?
A: Yeah.
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Q: And different people had told you what
they had seen happening down there at the
Flood Zone, hadn't they?
A: No. I just kept hearing things.
[PROSECUTOR]: I'm going to object to
anything he's heard, Judge. Hearsay.
[JUDGE]: Sustained.
At a bench conference, Caple's attorney told the judge the
testimony was not offered for its truth but to prove an
alternate source for Johnson's knowledge of the incident and to
show Johnson falsified his testimony about his personal
observation. The trial judge ruled that it was hearsay and
disallowed any further inquiry. Later, out of the presence of
the jury, Caple's attorney made a proffer of Johnson's
testimony.
Avery Miles, who was serving a sentence in a federal prison
for conspiring with his cousin, Johnson, to distribute crack
cocaine, testified that he received a telephone call from Caple
at 1 or 2 o'clock the morning of July 19. Caple, whom he had
known about three years at that time, asked if he had seen
Harris, who was also Miles' friend. When Miles said he had not,
Caple replied he would explain later why he wanted Harris. That
evening, Caple went to Miles' home and told Miles that he and
Harris had been attacked by some people near the nightclub.
Miles testified that Caple said he had fired a Glock nine
millimeter handgun, which jammed after he fired one shot.
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Miles testified that before Caple called him he had heard
about the incident. Miles also testified that he talked to
Johnson about the shooting a few days after it happened and that
he had not talked to Johnson about it again because Johnson had
been arrested and was in jail. Miles was aware he could still
petition for a reduction of his federal sentence and said "it's
possible" his testimony would help reduce his sentence if he was
truthful.
Caple testified and denied shooting Ellis. He said he was
at home at the time the incident occurred. His mother and
father also testified that Caple lived at home and was required
to observe a midnight curfew on weekends. Other witnesses
testified as to Caple's reputation for truthfulness and good
character. Witnesses also testified about the bad reputations
of the prosecution's witnesses.
The jury acquitted Caple of the charge of second degree
murder and convicted Caple of the lesser offense of voluntary
manslaughter. The jury also convicted him of possessing a
firearm while he was under the age of eighteen.
II.
Caple contends the trial judge erred in denying him the
right to cross-examine Johnson as to bias and motive to
fabricate his testimony. He relies upon the Supreme Court's
holding "that the right of an accused to cross-examine
prosecution witnesses to show bias or motivation, when not
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abused is absolute." Hewitt v. Commonwealth, 226 Va. 621, 623,
311 S.E.2d 112, 114 (1984). See also Barker v. Commonwealth,
230 Va. 370, 376, 337 S.E.2d 729, 733 (1985). The Commonwealth
concedes that the testimony Caple sought to prove, which was
proffered for the record, was admissible as an exception to the
hearsay rule.
The hearsay rule does not operate to
exclude evidence of a statement, request, or
message offered for the mere purpose of
explaining or throwing light on the conduct
of the person to whom it was made.
* * * * * * *
"Wherever an utterance is offered to
evidence the state of mind which ensued in
another person in consequence of the
utterance, it is obvious that no assertive
or testimonial use is sought to be made of
it, and the utterance is therefore
admissible, so far as the hearsay rule is
concerned."
Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670-71
(1960) (citation omitted). The Commonwealth contends, however,
that although the testimony was admissible for the purpose
offered, the error in excluding it was harmless. We agree.
To prove Johnson had fabricated his testimony about seeing
Caple shoot a gun, Caple's attorney sought to elicit testimony
at trial that Johnson had another source of information
concerning the shooting. After the trial judge sustained the
prosecutor's hearsay objection, Caple's attorney made an offer
of proof, out of the presence of the jury, to establish the
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nature of the excluded testimony. Johnson's proffered testimony
includes the following:
Q: All right. I was asking you, at one
point, whether or not you had discussed this
case with other people before making a
statement to the police.
A: Okay.
* * * * * * *
Q: Talked to any friends out on the street
or anybody about the case?
A: When I was out on the streets, somebody
told me about it.
Q: Okay. Who told you about it?
A: My cousin. I think my cousin told me.
Q: And who's your cousin?
A: Avery [Miles].
Q: What did [Miles] tell you?
A: He just told me that [Caple] killed the
dude.
Q: Okay. Did he give you any facts about
the case?
A: No.
Q: Did he tell you what time or where?
A: No.
Q: He never told you what time?
A: He told me where.
Q: He told you it was [in the area of the
nightclub]?
A: Yeah.
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Q: Did he tell you it was around 2 o'clock
in the morning?
A: No, I already knew that.
Q: But he didn't give you any facts other
than that?
A: No.
Q: If you already knew it, why did you go
in to talk to him about it?
A: He just told me [Caple] killed a dude
down in [the area of the nightclub].
As the Supreme Court held in Hewitt, "the right . . . to
cross-examine prosecution witnesses to show bias or motivation
. . . rests upon the constitutional right to confront one's
accusers." 226 Va. at 623, 311 S.E.2d at 114. The judge's
error in denying this right to cross-examine is subject to
harmless analysis. Williams v. Commonwealth, 32 Va. App. 395,
399, 528 S.E.2d 166, 168 (2000) (en banc). "Whether . . . an
error is harmless in a particular case depends upon a host of
factors, . . . includ[ing] the importance of the witness'
testimony in the prosecution's case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution's case."
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
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Although the excluded testimony contains some details that
Johnson's trial testimony lacked, Johnson had testified before
the jury about the significant facts that this proffer sought to
establish. During cross-examination at trial, Johnson testified
as follows:
Q: Before you were arrested, you had heard
all about this offense, hadn't you?
A: Yeah.
Q: It was kind of the talk of the
neighborhood, right?
A: Yeah.
Q: And different people had told you what
they had seen happening down there at the
Flood Zone, hadn't they?
A: No. I just kept hearing things.
In short, the jury learned from Johnson's trial testimony
that he had heard of the incident from other sources prior to
his report to the police. Caple's argument at trial and in his
brief on appeal is that the excluded testimony was essential for
the jury "to evaluate the very real possibility that Johnson
gained his information, not from witnessing the [homicide], but
from hearing about it from 'rumors on the street.'" Clearly,
the jury had testimony from Johnson upon which Caple could have
argued that very fact. Indeed, in his closing statement to the
jury, Caple's attorney asserted that Johnson and Miles knew each
other before the shooting and further asserted the following:
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[Johnson and Miles] knew what was being said
out on the street, and it wouldn't be beyond
them to make up things to try to get . . .
[a sentence] reduction in court. . . .
* * * * * * *
[Johnson] says Troy Caple did so and so,
because he's trying to get a bond in Federal
court. We don't even know that he was out
there. He may have heard from . . . Miles
or from someone else when it happened out in
their neighborhood or where they frequently
visit and made the whole thing up just to
try to get a reduction or to get a bond in
Federal court.
We hold that the erroneously excluded evidence was
repetitious and cumulative of Johnson's trial testimony and that
its impeachment value, when viewed in light of his other
testimony at trial, was negligible. The jury was aware that
Johnson had heard of the incident, and the jury had ample other
evidence to warrant the jury in rejecting Johnson's testimony if
it was inclined to so do. Thus, we hold that the excluded
evidence was so insubstantial when compared to Johnson's trial
testimony that the judge's error in excluding it was harmless
beyond a reasonable doubt. See Dearing v. Commonwealth, 260 Va.
671, 673-74, 536 S.E.2d 903, 904 (2000).
Accordingly, we hold that the evidentiary ruling was not
reversible error, and we affirm the convictions.
Affirmed.
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