Richard W. Durrer v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued by teleconference
RICHARD W. DURRER
MEMORANDUM OPINION * BY
v. Record No. 1601-97-2 JUDGE LARRY G. ELDER
APRIL 21, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENE COUNTY
Lloyd C. Sullenberger, Judge
J. Thomas Love, Jr., for appellant.
Ruth Ann Morken, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Richard W. Durrer (appellant) appeals his convictions of
obstruction of justice and assault and battery. He contends that
the trial court erred when it excluded evidence regarding the
demeanor and conduct of one of the Commonwealth's witnesses
shortly after appellant's arrest. For the reasons that follow,
we affirm.
Appellant was charged with obstruction of justice and
assault and battery following an encounter with Investigator Troy
W. Buttner and Deputy Stuart R. Snead on the morning of
November 6, 1996. The evidence at appellant's trial proved that
Investigator Buttner and Deputy Snead arrived at appellant's auto
body shop after receiving information from appellant's cousin
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that appellant was engaged in a physical altercation with his
former girlfriend, Angela S. Jarrell. After the officers
attempted unsuccessfully to persuade Jarrell to leave the scene,
appellant emerged from his shop carrying an aluminum baseball
bat. Both Investigator Buttner and Deputy Snead testified that
appellant verbally threatened to use the bat to force Jarrell to
leave his property and walked toward her and the two officers
while carrying the bat. The officers testified that, after
appellant failed to comply with their order to drop the bat and
continued his approach, Deputy Snead sprayed appellant in the
face with pepper spray. According to the officers, appellant
responded by swinging the bat and striking Deputy Snead's right
hand. Investigator Buttner then struck appellant about three
times with an expandable baton, and Deputy Snead followed by
tackling appellant to the ground. After a fifteen-to-twenty
second struggle, during which appellant resisted their efforts to
subdue him, the officers handcuffed appellant and took him into
custody. During his altercation with the officers, appellant
sustained injures that required medical attention later that day.
Appellant's cousin and Jarrell testified on appellant's
behalf and gave accounts that conflicted with the testimony of
the officers. They testified that the officers assaulted
appellant with the pepper spray and the baton after he failed to
comply with their order to drop the bat. However, they testified
that appellant never threatened to use the bat and never swung
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it.
At the end of his case-in-chief, appellant sought to
introduce the testimony of James M. Hatmaker, which was proffered
for the record. Hatmaker would have testified that he observed
Deputy Snead execute a traffic stop of Jarrell a few minutes
after appellant was taken into custody. According to Hatmaker,
Deputy Snead angrily approached Jarrell as she sat in her car,
yelled at her, and pulled forcefully on her driver-side window
until it shattered. The trial court ruled that Hatmaker's
testimony was inadmissible because it was irrelevant.
"Evidence is relevant if it has any logical tendency to
prove an issue in a case." Goins v. Commonwealth, 251 Va. 442,
461, 470 S.E.2d 114, 127, cert. denied, 117 S. Ct. 222 (1996).
Evidence that tends to show that "'a witness is biased and his
testimony unreliable because it is induced by considerations of
self-interest'" is "always relevant." Banks v. Commonwealth, 16
Va. App. 959, 962, 434 S.E.2d 681, 683 (1993) (quoting Barker v.
Commonwealth, 230 Va. 370, 376, 337 S.E.2d 729, 733 (1985)).
"Evidence of a crime or act that relates directly to the
credibility of a witness and the weight that should be given to
his or her testimony is admissible." Id. at 963, 343 S.E.2d at
683 (citing Adams v. Commonwealth, 201 Va. 321, 326, 111 S.E.2d
396, 399-400 (1959)).
Evidence of specific acts of misconduct is
generally not admissible in Virginia to
impeach a witness' credibility. However,
where the evidence . . . is relevant to show
that a witness is biased or has a motive to
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fabricate, it is not collateral and should be
admitted.
Id. (citations omitted).
We hold that the trial court did not err when it concluded
that Hatmaker's testimony was not relevant to the issue of Deputy
Snead's credibility. Deputy Snead's testimony concerned the
actions of appellant, not Jarrell. As such, the evidence of
Deputy Snead's alleged misconduct toward Jarrell is relevant at
appellant's trial only if the deputy would be motivated to
justify or conceal his behavior toward Jarrell by falsely
accusing appellant of striking him with the baseball bat and
resisting the officers' efforts to arrest him. See Banks, 16 Va.
App. at 964, 434 S.E.2d at 684 (holding that evidence that the
Commonwealth's witness distributed drugs while investigating the
defendant for drug-related activity was admissible to show that
the witness had a motive to falsely implicate the defendant in
order to conceal his own crimes). However, the deputy's alleged
incident with Jarrell occurred later in time and at a different
location than his altercation with appellant. Although Deputy
Snead had an interest in convincing his superiors that his
decision to shatter Jarrell's driver-side window was warranted by
the circumstances, he could not achieve this end by giving a
false account of appellant's conduct at a different time and
place. Because the proffered evidence of Deputy Snead's
unprovoked aggression toward Jarrell could not logically provide
the deputy with a "motive to implicate [appellant] in order to
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conceal his own [misconduct]," we cannot say that the trial
court's exclusion of this evidence was erroneous. Id. at 964,
434 S.E.2d at 684.
For the foregoing reasons, we affirm the convictions of
obstruction of justice and assault and battery.
Affirmed.
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