Hugh Kevin Wooddell v. Commonwealth of Virginia ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
HUGH KEVIN WOODDELL
MEMORANDUM OPINION * BY
v. Record No. 2241-00-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BATH COUNTY
Duncan M. Byrd, Jr., Judge
Marvin D. Miller for appellant.
Susan M. Harris, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
A jury convicted Hugh Kevin Wooddell of discharging a
firearm into an occupied building and possessing a firearm after
being convicted of a felony. On appeal, he contends the trial
court erred in permitting a witness to remain in the courtroom
during trial and the Commonwealth failed to provide exculpatory
evidence. For the following reasons, we affirm.
Andrea Rockett was home with her daughter and boyfriend,
Russell Drew Chesnut, when the defendant arrived around
midnight. Rockett met the defendant at the back door and
observed him exit his truck, take a drink of beer, and grab two
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
bags. The defendant came onto the porch, pulled out a rifle,
and fired it before entering the house.
Rockett testified the defendant walked down the hallway and
fired another shot as Chesnut approached. The defendant said,
"I come here to kill you, Rusty" and fired a third shot.
Rockett slammed the door to the bedroom, ran out the back door
with her daughter, and called 911 from her mother's house.
Chesnut was in the living room when he heard a gunshot from
the rear of the house. He stepped into the hallway and came
face to face with the defendant who said, "Get out of my face."
Chesnut asked, "Kevin, what is wrong with you?" The defendant
replied, "I come here to kill you, Rusty," and fired a shot that
just missed Chesnut's head. Chesnut jumped back and tried to
convince the defendant to drop the gun. The defendant fired
another shot. Chesnut knocked the defendant to the ground and
ran to Rockett's mother's house.
The defendant testified that when he entered the house,
Chesnut pointed a gun at him and told him to leave. The
defendant walked up to Chesnut and said, "You ain't man enough
to use it." They struggled over the gun, and it fired. The
defendant admitted he had three or four prior felony
convictions.
Before trial, the defendant moved to exclude Chesnut from
the courtroom. The defendant objected to Chesnut
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staying in the courtroom . . . because . . .
that section of the code says that the Court
can do it unless his staying in the
courtroom would prejudice the trial or the
defendant . . . . I think the sole purpose
for him to remain in the courtroom is to
hear Ms. Rockett's testimony so that their
testimony is similar.
. . . I think that the defendant will
be prejudiced, simply by Mr. Chesnut being
able to hear Ms. Rockett's testimony and
then testifying.
From this argument, and the Commonwealth's referral to "2985.01
[sic] of the code section," it is implicit that the parties were
referring to Code § 19.2-265.01. 1
The trial court denied the defendant's motion and permitted
Chesnut to remain in the courtroom during Rockett's testimony.
Noting that "victim's rights . . . [have] been in the forefront
for the past few years," the trial judge ruled that the "victim
ought to be allowed to stay in the room unless . . . [his
presence] will 'substantially' impair the defendant's right to a
fair trial. And I don't see any evidence that that would be the
case."
On appeal, the defendant contends the trial court erred in
failing to exclude Chesnut from the courtroom pursuant to Code
1
At the time of the defendant's trial, Code § 19.2-265.01,
entitled "Victims, certain members of the family and support
persons not to be excluded," provided in relevant part that
"[d]uring the trial of every criminal case . . . any victim as
defined in § 19.2-11.01 may remain in the courtroom and shall
not be excluded unless the court determines, in its discretion,
the presence of the victim would substantially impair the
conduct of a fair trial." (Emphasis indicates word deleted
during 2000 amendment).
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§ 19.2-265.1. 2 He argues the statute requires the exclusion of
all witnesses, including victim witnesses, and that the victims'
rights statute, Code § 19.2-265.01, is inapplicable. This
argument is different from, and actually conflicts with, the
argument he raised at trial: that Chesnut should be excluded
under Code § 19.2-265.01, the victims' rights statute, because
his presence would impair the trial. Nothing in the defendant's
argument at trial indicated that he thought the general statute,
Code § 19.2-265.1, controlled rather than the specific statute,
Code § 19.2-265.01, dealing with victims.
"[T]hough taking the same general position as in the trial
court, an appellant may not rely on reasons which could have
been but were not raised for the benefit of the lower court."
West Alexandria Prop., Inc. v. First Virginia Mort., 221 Va.
134, 138, 267 S.E.2d 149, 151 (1980) (citations omitted). We
will not consider an argument on appeal which was not presented
to the trial court. Rule 5A:18; Buck v. Commonwealth, 247 Va.
449, 452-53, 443 S.E.2d 414, 416 (1994) (issue not preserved
where defendant gave different reason to support Batson claim on
brief than at trial). Accordingly, this issue is procedurally
barred.
2
Code § 19.2-265.1, entitled "Exclusion of witnesses,"
provides in pertinent part that "[i]n the trial of every
criminal case, the court . . . shall upon the motion of either
[party] . . . require the exclusion of every witness to be
called . . . ."
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Next, the defendant contends the Commonwealth failed to
provide exculpatory evidence and violated the Rules of
Professional Conduct. At his sentencing hearing, the defendant
requested a continuance in order to obtain evidence from
California regarding the possibility that Chesnut was "on parole
and absconded from California." Defense counsel argued this
information could have affected Chesnut's credibility at trial. 3
The Commonwealth objected because the allegations were based on
hearsay, the jury was aware Chesnut was a felon, and a possible
parole violation would not have been admissible.
At the hearing on the defendant's motion for a new trial,
the trial court permitted defense counsel to proffer that
Chesnut was convicted of selling methamphetamine on December 23,
1998 and that, as of January 16, 1999, he "was on suspended
status of parole, which means that he had violated his parole,
and he was a fugitive" from California.
The thrust of the defendant's argument is that Chesnut
violated parole and the Commonwealth violated Brady v. Maryland,
373 U.S. 83 (1963), by not revealing this. The jury was aware
Chesnut was a convicted felon. No evidence presented or
proffered substantiates the defendant's allegation that Chesnut
violated parole. The trial court did not accept the defendant's
contention that a factual basis existed to support his motion.
3
The defendant was acquitted of the attempted murder of
Chesnut and the related firearm offense.
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Moreover, Chesnut's fugitive status, if proven, would not
have been admissible. Ramdass v. Commonwealth, 246 Va. 413,
423, 437 S.E.2d 566, 572 (1993) (unadjudicated offenses are
inadmissible to impeach a witness), vacated on other grounds and
remanded, 512 U.S. 1217 (1994), aff'd after remand, 530 U.S. 156
(2000); Newton v. Commonwealth, 29 Va. App. 433, 449-50, 512
S.E.2d 846, 854, cert. denied, 528 U.S. 1025 (1999) (same).
Evidence that is not admissible at trial cannot violate Brady
because there is no "reasonable probability" that its disclosure
would have affected the trial. Wood v. Bartholomew, 516 U.S. 1,
5-6 (1995) (no Brady violation for failure to disclose polygraph
tests which are inadmissible under state law).
Accordingly, the defendant's convictions are affirmed.
Affirmed.
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Benton, J., dissenting.
After the jury was sworn, the prosecutor made a motion to
exclude witnesses, but asked that Russell Chesnut be allowed to
stay in the courtroom. Hugh Wooddell's attorney responded, "I
have an objection to that, your Honor, I'd like to put on the
record." Before considering the objection, the trial judge
informed the witnesses as follows:
The Court is invoking a normal procedure
that requires that the witnesses be excluded
except when they are testifying, and the
purpose of that rule is so one person's
testimony won't affect the testimony of
another. And so, while you are excluded, I
would admonish you not to discuss your
testimony among yourselves until after the
case is over. So if you will go outside the
courtroom, we will call you when we need to
hear from you. Mr. Chesnut can stay at this
point.
When the judge finished instructing the jury, the judge
invited Wooddell's attorney "to put something on record with
respect to the Commonwealth's motion to allow the victim --."
Wooddell's attorney then addressed the statute concerning
victims so as to inform the judge that Chesnut should be
excluded under it. He argued as follows:
I want to object to this victim staying
in the courtroom, simply because, Judge,
that section of the code says that the Court
can do it unless his staying in the
courtroom would prejudice the trial or the
defendant in some case. There are only two
-– three witnesses as to what happened that
day: Mr. Chesnut, Ms. Rockett, and Mr.
Wooddell. This is not a case where Mr.
Chesnut was wounded, or seriously hurt, or
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was the victim of a rape, as that section of
statute is used mostly, and I think the sole
purpose for him to remain in the courtroom
is to hear Ms. Rockett's testimony so that
their testimony is similar.
I did record the preliminary hearing and
their testimony was not exactly the same.
And I think that the defendant will be
prejudiced, simply by Mr. Chesnut being able
to hear Ms. Rockett's testimony and then
testifying.
In support of his request that the judge not exclude
Chesnut from the courtroom, the prosecutor responded as follows:
Judge, I think under 2985.01 [sic] of the
code section, the only reason for keeping
Mr. Chesnut out is, as I read items in the
code, is if it would cause some kind of a
disruption in the courtroom. But
clearly--that's a fairly new statute, and it
is clearly aimed to allow victims of serious
crime to be present during the testimony.
Now, I agree if there should be altercation
there -– something that causes a
disturbance, perhaps, he should be excluded,
but there is no indication of that, and he
will not cause a disruption. I think he's a
victim under that statute. That's exactly
what it is designed to allow. So often we
have our victims in these cases who are just
stuck off in a room, and they don't know
what is going on, and they are the reason
that we're here in the first place.
The trial judge then overruled Wooddell's objection.
On appeal, Wooddell argues that the trial judge erred in
refusing to exclude Chesnut as required by Code § 19.2-265.1.
The Commonwealth contends, however, that Wooddell failed to
preserve this objection because at trial he only addressed Code
§ 19.2-265.01. I would hold that Wooddell's attorney
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sufficiently objected to the trial judge's refusal to exclude
Chesnut from the courtroom, that his appeal of this issue is not
barred by Rule 5A:18, and that the trial judge erred in
overruling Wooddell's objection.
"The purpose of the contemporaneous objection rule embodied
in Rule 5A:18 is to inform the trial judge of the action
complained of in order to give the judge the opportunity to
consider the issue and to take timely corrective action, if
warranted, in order to avoid unnecessary appeals, reversals and
mistrials." Robinson v. Commonwealth, 13 Va. App. 574, 576, 413
S.E.2d 885, 886 (1992). The objection made by Wooddell's
attorney was sufficient to raise the issue whether Chesnut's
testimony should have been excluded under either Code
§ 19.2-265.1 or Code § 19.2-265.01. The matter of excluding
witnesses under Code § 19.2-265.1 was initially raised by the
prosecutor's motion to exclude all the witnesses except Chesnut.
Wooddell's attorney objected. Moreover, the record clearly
reflects that the trial judge understood what was at issue and
the long standing rule embodied in Code § 19.2-265.1 because he
informed the witnesses about the "normal procedure" of excluding
witnesses from the courtroom. When the trial judge asked
Wooddell's attorney to state his objection for the record
regarding the presence of the "victim" in the courtroom,
Wooddell's attorney properly responded and argued why Chesnut
also should have been excluded under Code § 19.2-265.01. I
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would hold that, based on the statements in the record, it is
apparent that the judge considered both statutes and refused to
exclude Chesnut from the courtroom.
Since at least 1960, Virginia has had statutes requiring
exclusion of witnesses in both civil and criminal cases upon
motion of counsel. Cf. e.g. Code § 8-211.1 (repealed 1977) ("In
the trial of every case, civil or criminal, the Court . . .
shall upon the motion of any party, require the exclusion of
every witness whose presence is not necessary to the
proceeding."). The current statute contains the following
mandatory directive:
In the trial of every criminal case,
the court, whether a court of record or a
court not of record, may upon its own motion
and shall upon the motion of either the
attorney for the Commonwealth or any
defendant, require the exclusion of every
witness to be called including, but not
limited to, police officers or other
investigators; however, each defendant who
is an individual and one officer or agent of
each defendant which is a corporation or
association shall be exempt from the rule of
this section as a matter of right.
Code § 19.2-265.1 (emphasis added). Moreover, the Supreme Court
has held that the statute makes "a defendant's right [to exclude
witnesses] absolute." Johnson v. Commonwealth, 217 Va. 682,
683, 232 S.E.2d 741, 742 (1977). Today, a motion to exclude
witnesses is so routine and commonplace that to require
recitation of the statute is to elevate form over substance.
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Wooddell's attorney clearly objected to the prosecutor's motion
not to exclude Chesnut, the Commonwealth's witness.
It was the trial judge who initially raised the matter of
Chesnut being a "victim" and invited a discussion on that issue.
In pertinent part, Code § 19.2-265.01 provides as follows:
During the trial of every criminal case
and in all court proceedings attendant to
trial, whether before, during or after
trial, . . . at which attendance by the
defendant is permitted, whether in a circuit
or district court, any victim as defined in
[Code] § 19.2-11.01 may remain in the
courtroom and shall not be excluded unless
the court determines, in its discretion, the
presence of the victim would impair the
conduct of a fair trial.
I would hold, as Wooddell contends, that the language of Code
§ 19.2-265.1 is more specific than the general language of Code
§ 19.2-265.01 and, therefore, overrides it. Code § 19.2-265.1
concerns criminal trials and specifically addresses "the
exclusion of every witness." (Emphasis added.) The plain
language of Code § 19.2-265.1 provides an exemption as a matter
of right only for criminal defendants. The General Assembly
could have easily inserted an exemption for victims had they
intended victims to remain in the courtroom as a matter of
right. Furthermore, we must apply the rule of lenity and
resolve in favor of the defendant any ambiguity that exists
between Code § 19.2-265.1 and Code § 19.2-265.01. Ansell v.
Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979). See
also Richardson v. Commonwealth, 25 Va. App. 491, 496, 489
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S.E.2d 697, 700 (1997) (en banc) (citing Bell v. United States,
349 U.S. 81, 83 (1955)). Thus, I would hold that Code
§ 19.2-265.1 trumps Code § 19.2-265.01.
Even assuming, for purposes of discussion, that Code
§ 19.2-265.1 does not, I would hold that the trial judge erred
in refusing to exclude Chesnut under Code § 19.2-265.01.
Wooddell's allegation of inconsistent testimony at the
preliminary hearing was unrebutted and sufficient to establish
that Chesnut's presence "would impair the conduct of a fair
trial." Code § 19.2-265.01. By overruling Wooddell's
objection, the trial judge permitted Chesnut to remain in the
courtroom and hear Andrea Rockett's testimony before Chesnut
testified. Because this conviction was based on the jury's
assessment of the credibility of the witnesses, I would hold
that the trial judge's failure to exclude Chesnut during
Rockett's testimony allowed Chesnut to conform his testimony and
impaired Wooddell's right to a fair trial.
For these reasons, I would reverse the convictions and
remand for a new trial. See Johnson, 217 Va. at 683, 232 S.E.2d
at 742; Martin v. Commonwealth, 217 Va. 847, 848, 234 S.E.2d 62,
63 (1977).
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