David Edward McCord v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
DAVID EDWARD McCORD
MEMORANDUM OPINION * BY
v. Record No. 1255-99-2 JUDGE JERE M. H. WILLIS, JR.
JULY 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
On appeal from his conviction of two counts of malicious
wounding, in violation of Code § 18.2-51, David Edward McCord
contends that the trial court erred (1) in refusing to permit him
to cross-examine the complaining witnesses concerning those
witnesses' prior instances of aggressive behavior, (2) in refusing
to permit him to cross-examine a Commonwealth's witness concerning
criminal charges pending against that witness, and (3) in
permitting the Commonwealth to call to the stand a witness,
knowing that the witness would assert his Fifth Amendment right
not to testify. Because the trial court erroneously denied proper
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
cross-examination, we reverse the convictions. We find no error
in the trial court's permitting the witness to be called to the
stand.
On October 11, 1998, McCord became embroiled in a dispute
with Matthew Bounds and Lamar Jennings. The controversy
concluded, and the parties departed. Later that evening, McCord,
accompanied by his brother James, re-encountered Bounds and
Jennings. James approached a car occupied by Bounds and Jennings.
Violence ensued. McCord approached and struck both Bounds and
Jennings, giving rise to the charges on which he was convicted.
CROSS-EXAMINATION AS TO VICTIMS' AGGRESSIVE ACTS
Defense of another is recognized as a defense subject to the
rules governing self-defense. See Foster v. Commonwealth, 13 Va.
App. 380, 385-86, 412 S.E.2d 198, 201-02 (1991). In cases
involving a claim of self-defense, evidence of the victim's
character for violence, turbulence, or aggression is admissible to
show (1) who was the aggressor, and (2) the reasonableness of the
defendant's apprehension. See Canipe v. Commonwealth, 25 Va. App.
629, 640, 491 S.E.2d 747, 752 (1997); see also Randolph v.
Commonwealth, 190 Va. 256, 56 S.E.2d 226 (1949). Evidence of
specific violent acts by the victim is admissible for this
purpose. See Craig v. Commonwealth, 14 Va. App. 842, 843-45, 419
S.E.2d 429, 430-31 (1992).
We do not consider on this appeal whether McCord's claim of
defense of his brother should have been successful. His defense
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may or may not have had merit. The issue before us is whether he
should have been permitted to adduce evidence in support of that
defense. Plainly, he should have been. The evidence in the case
was conflicting and confused. However, there was evidence that
James, who had not previously been embroiled with Bounds and
Jennings, approached them non-violently and was violently assailed
by them. This evidence supports McCord's contention that he went
properly to the aid of his brother. The trial court erred in
refusing to permit him to develop fully his evidence in support of
that contention.
CROSS-EXAMINATION OF WITNESS
CONCERNING PENDING CRIMINAL CHARGES
An accused has a fundamental right to confront and
cross-examine the witnesses against him. See Moore v.
Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961). An
accused has the right to cross-examine prosecution witnesses to
show bias or motivation. See Brown v. Commonwealth, 246 Va. 460,
437 S.E.2d 563 (1993).
McCord sought to cross-examine Bounds concerning criminal
charges pending against Bounds at the time of trial. He sought to
suggest that Bounds had a motive to curry favor with the
Commonwealth's Attorney. This was a permissible endeavor on
cross-examination, which the trial court erroneously foreclosed.
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CALLING A WITNESS KNOWING HE WOULD ASSERT HIS
FIFTH AMENDMENT RIGHT NOT TO TESTIFY
When the evidence establishes the presence of a witness at an
incident on trial and that witness is not called to testify, an
inference flows logically that the witness' testimony would have
been adverse to the party failing to call him. This suggestion
has particular application to the Commonwealth, which bears the
burden of producing a full elucidation of the incident on trial.
Therefore, the Commonwealth has a right to call its witnesses. If
a witness, with or without justification, declines to testify, his
call and refusal is a circumstance properly presented at trial.
The judgment of the trial court is reversed, and this case is
remanded to the trial court for retrial, if the Commonwealth be so
advised.
Reversed and remanded.
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