Clyde L. Caffee v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia
CLYDE L. CAFFEE
MEMORANDUM OPINION * BY
v. Record No. 2500-97-1 JUDGE JAMES W. BENTON, JR.
MARCH 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
Keith Loren Kimball for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted Clyde L. Caffee of two offenses of murder,
malicious wounding, and three offenses of using a firearm in the
commission of the three felonies. On this appeal, Caffee
contends the trial judge impermissibly forced him to surrender
one constitutional right to assert another when the trial judge
permitted the Commonwealth to use Caffee's pretrial testimony as
evidence against Caffee at trial. Because Caffee did not assert
that objection at trial, we hold that Rule 5A:18 bars
consideration of that issue on appeal.
I.
A grand jury indicted Caffee on two charges of murder,
malicious wounding, and use of a firearm in the commission of the
three felonies. Two weeks prior to trial, Caffee's
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
court-appointed attorney sought to withdraw from his
representation of Caffee. At a hearing on the motion, Caffee's
attorney informed the judge that a difficulty existed because
Caffee "does not want to go with our planned defense which was to
be self-defense." Caffee's attorney stated that he and Caffee
were "in extreme disagreement" and that he believed "Caffee's
best defense and only defense" to the indictments was self-
defense. When Caffee's attorney stated that Caffee "would . . .
like to address the court," the judge administered an oath to
Caffee and asked Caffee to speak. Caffee asked the judge to
appoint another attorney to represent him and confirmed that he
disagreed with the attorney on his defense strategy. As
pertinent to this appeal, Caffee said the following in support of
his request:
I did not commit this crime. [My attorney]
advised me that the best thing to go with is
self-defense at the time, which I told my
[attorney] that I did not commit this crime,
did not shoot and kill those three young
[men].
Judge, pleading to self-defense is just
like saying I did it. That's why I am trying
to get a point to him. If I come in here
saying self-defense, I admitted that I shot
and killed them . . . which, sir, I did not
do. That's why I want to go with not guilty
to all the charges, sir.
The assistant Commonwealth's attorney opposed the motion to
withdraw and to appoint a new attorney for Caffee. In his
argument, the assistant Commonwealth's attorney stated "I don't
- 2 -
understand how there's any defense in the case except for
self-defense." The judge denied the motion to withdraw.
Two weeks later, a different judge presided at Caffee's jury
trial. The Commonwealth's evidence at trial proved that three
weeks before the shooting incident, Willie Wiggins, Gregory
Wiggins, Derrick Wiggins and their friend John Brooks had fought
Caffee and Caffee's nephew at a nightclub. All the participants
in the fight knew each other. When the fighting escalated, the
nightclub's security guards sprayed everyone with Mace and forced
them to leave. Brooks and Gregory Wiggins testified that they
heard gunshots as they left the parking lot.
On July 6, 1996, at 1:00 a.m., Caffee again encountered the
four men at a house where alcohol was sold illegally. The
Commonwealth's first witness, Gregory Wiggins, testified that
Caffee deliberately "bumped" Derrick Wiggins. Later, when
Gregory Wiggins exited the house, he observed Caffee arguing with
Derrick Wiggins. He testified that he saw Caffee draw a gun,
that he observed "fire" coming from Caffee's direction, and that
he saw Derrick Wiggins fall to the ground. When he yelled to
Willie Wiggins, who was standing nearby, to run away, Caffee shot
Willie Wiggins. Caffee then shot and wounded Gregory Wiggins.
Willie Wiggins and Derrick Wiggins were killed. Gregory Wiggins
testified that he and the two dead men were unarmed.
When Caffee's attorney cross-examined Gregory Wiggins, he
sought leave to question Wiggins in depth concerning convictions
for assault that were proved on direct examination and other
- 3 -
unadjudicated acts of violence. He informed the judge that those
matters were relevant to Caffee's theory of self-defense. The
Commonwealth objected to any examination of Wiggins concerning
unadjudicated acts of violence. Ruling that Caffee had not
presented evidence of self-defense, the trial judge declined to
permit Caffee's attorney to examine Wiggins concerning other acts
of violence.
Reginald Wiggins, who was related to the three shooting
victims, testified that Caffee said he was carrying a gun when he
entered the house on July 6. After Caffee "bumped" the shoulder
of Derrick Wiggins, an argument and a fistfight ensued outside
the house. Reginald Wiggins testified that Caffee "pulled a gun
out of his pants and [shot] my cousin, Derrick, in the chest."
Reginald Wiggins also testified that when Willie Wiggins ran,
Caffee shot Willie Wiggins in the back and then shot Gregory
Wiggins in the back.
The Commonwealth's evidence also proved that both Caffee and
Willie Wiggins had particles of gunshot primer residue on their
right hands. Caffee's attorney established through the testimony
of the Commonwealth's forensic expert that primer residue could
result from several circumstances, including handling a weapon.
In his cross-examinations of Gregory Wiggins, John Brooks and
Reginald Wiggins, Caffee's attorney sought to establish that the
Wiggins group had been the aggressors in the June fight and again
in the July encounter.
Near the end of its case-in-chief, the Commonwealth offered
- 4 -
as evidence the statements Caffee made at the pretrial hearing
when his attorney sought to withdraw. The Commonwealth argued
that the statement was admissible as a party admission. Caffee's
attorney objected on the following three grounds: (1) that the
evidence was overly prejudicial because Caffee would not be able
to tell the jury the full context in which the testimony was
given, (2) that the testimony was inadmissible to impeach Caffee
because Caffee had not then testified, and (3) that Caffee had
yet to present any evidence of self-defense to be rebutted by the
testimony. Citing Alatishe v. Commonwealth, 12 Va. App. 376, 404
S.E.2d 81 (1991), the Commonwealth responded that the statement
was admissible as a party admission and proved Caffee's guilty
conscience.
The trial judge ruled that the testimony was admissible as a
party admission. After the judge explained the nature of the
transcript to the jury, a detective read to the jury the
transcript of Caffee's pretrial testimony.
When the Commonwealth concluded its case-in-chief, Caffee
presented witnesses in his defense. Caffee's cousin testified
that he attempted to talk to all parties prior to the shooting
incident to calm the situation. He also urged Caffee to leave
the premises. Caffee told him that the Wiggins' group was
harassing him and that he was tired of it. Caffee's cousin
testified that he saw Derrick and Willie Wiggins strike Caffee,
and then heard shots fired rapidly. He testified that he did not
see who fired the shots.
- 5 -
Another witness for the defense testified that when she
arrived at the house at 1:50 a.m., Caffee was near his car.
Gregory Wiggins and several other men were following Caffee and
profanely threatening to fight him. After she heard Caffee say
"I'm not fighting," the men began beating him. She then heard
about six rapid shots and later saw one of the Wiggins brothers
shooting at Caffee's car as it drove away. Caffee did not
testify.
The jury convicted Caffee on all charges.
II.
Relying upon Simmons v. United States, 390 U.S. 377 (1968),
Caffee argues for the first time on appeal that his pretrial
testimony was inadmissible at trial because he did not waive his
Fifth Amendment privilege against self-incrimination when he
sought to exercise his Sixth Amendment right to be represented by
counsel. The Commonwealth contends that this issue is barred by
Rule 5A:18 because Caffee did not specify this objection at
trial. We agree that this issue is barred by Rule 5A:18.
We have consistently ruled that "[w]e will not consider a
question raised for the first time on appeal, Rule 5A:18, even a
constitutional question." Singleton v. Commonwealth, 19 Va. App.
728, 735, 453 S.E.2d 921, 926 (1995) (en banc). See also
Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405 S.E.2d 438,
441 (1991).
"[T]he primary purpose of the contemporaneous
objection rule is to advise the trial judge
of the action complained of so that [the
- 6 -
trial judge] can consider the issue
intelligently and, if necessary, take
corrective action to avoid unnecessary
appeals, reversals, and mistrials."
Consistent with this purpose, we have held
that objections must be stated with
specificity and that a general objection made
"for the record" is insufficient.
Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376
(1987) (citations omitted).
When the issue raised on appeal is not the same issue raised
in the trial court, the party has "failed . . . to preserve the
issue for appeal." Marshall v. Commonwealth, 26 Va. App. 627,
637, 496 S.E.2d 120, 125 (1998). See also United States v.
Branker, 418 F.2d 378, 381 (2d Cir. 1969) (a general objection at
trial to the admission of evidence is insufficient to preserve
for appeal the issue whether the admission into evidence of
pretrial testimony violates the rule of Simmons). At trial,
Caffee's counsel argued three matters in support of his
objection. None of the arguments addressed the matter he now
raises on appeal.
"To invoke the ends of justice exception to Rule 5A:18, the
record must 'affirmatively show[] that a miscarriage of justice
has occurred, not . . . merely . . . that a miscarriage might
have occurred.'" Marshall, 26 Va. App. at 636, 496 S.E.2d at 125(citation omitted). Upon our review of the record we cannot say
that this is such a case. The testimony that was admitted was
but a minor piece of the evidence that overwhelmingly proved
beyond a reasonable doubt that Caffee committed the offenses.
- 7 -
For these reasons, we affirm the convictions.
Affirmed.
- 8 -