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MCCORD v. COMMONWEALTH



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MCCORD

v.

COMMONWEALTH

(unpublished)


JULY 25, 2000

Record No. 1255-99-2

DAVID EDWARD McCORD

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

William R. Shelton, Judge

Present: Judges Willis, Elder and Senior Judge
Cole

Argued at Richmond, Virginia

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.


MEMORANDUM OPINION[1] BY JUDGE
JERE M. H. WILLIS, JR.

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 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 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.

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.

 

FOOTNOTES:

[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.

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