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MCLEAN v. COMMONWEALTH



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MCLEAN

v.

COMMONWEALTH


APRIL 18, 2000

Record No. 0145-99-4

TRAVIS JOE McLEAN

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

Herman A. Whisenant, Jr., Judge

Present: Judges Elder, Annunziata and Frank

Argued at Alexandria, Virginia

David B. Hargett (Joseph D. Morrissey;
Morrissey & Hershner, PLC, on brief), for appellant.

John H. McLees, Jr., Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


OPINION BY JUDGE LARRY G. ELDER

Travis Joe McLean (appellant) appeals from his
jury trial convictions for two counts each of attempted capital
murder, attempted robbery, and use of a firearm in the commission
of a felony. On appeal, he contends the trial court committed
reversible error by admitting, in the guilt phase of the trial,
(1) evidence that one of the Commonwealth’s witnesses felt
intimidated when approached by appellant’s father and (2) a
letter written by that same witness on the theory that it was a
prior consistent statement admissible following appellant’s
attempt to impeach him. We hold, as the Commonwealth concedes,
that the trial court erred in admitting evidence that the witness
felt intimidated, but we hold that error was harmless under the
facts of this case.

We also hold that appellant sufficiently
preserved his objection to admission of the witness’ letter as a
prior consistent statement but that the admission was not error.
Therefore, we affirm appellant’s convictions.

I.

FACTS

THE OFFENSE

At about 8:00 p.m. on December 19, 1997,
victims Robert Umholtz and Robert Webb were standing between
Umholtz’s residence and a nearby swimming pool parking lot. A man
matching appellant’s general description approached Umholtz and
Webb from the direction of the pool, pointed a revolver at them
and demanded their wallets. When they refused and turned to walk
away, the assailant shot them both. Umholtz was struck once in
the leg. Webb was struck once in the back, and when he turned to
again face the assailant, he was struck two more times, in his
upper right chest and lower left hip or groin area. The assailant
turned and walked briskly back toward the pool in the direction
of Old Bridge Road. The victims’ wounds were not fatal, but
neither man was able to make a positive identification of the
assailant.

Two other witnesses, Terrence Tyrone Alexander
and Calvin Jackson, testified that they were driving around with
appellant on the evening of December 19, 1997, and they gave
similar testimony about the events of that evening. Appellant was
driving. Also in the car with appellant, Alexander and Jackson
was appellant’s brother, Lamar. They "ended up going to Old
Bridge . . . where [appellant and his brother, Lamar,] used to live." After visiting a friend of appellant’s and
Lamar’s, appellant drove into a nearby townhouse development and
pulled into a parking space near the swimming pool adjacent to
Umholtz’s house. Appellant told the other occupants of the car
"that he would be right back," and he walked off in the
direction of the swimming pool. Lamar, who was in a hurry to
finish an errand, moved into the driver’s seat to await
appellant’s return. Although the subject was not discussed,
Alexander assumed appellant was stopping to visit another friend.

Within thirty to forty-five seconds, Alexander
and Jackson heard three or four gunshots, and shortly thereafter,
appellant ran back to the driver’s side of the car. Upon seeing
his brother in the driver’s seat, appellant went to the
passenger’s side and got in. When everyone asked what happened,
appellant said "he tried to rob two men, and they refused by
saying that they wouldn’t give him the money — they wouldn’t
give him the money if they had it. So he shot them." Jackson
became very upset, cursing and yelling at appellant, and
appellant said "he was sorry, that he didn’t mean to do it.
He should have did it by himself. He put us in a bad position. We
have all got kids. He was frustrated." Appellant’s brother
then backed out of the parking space and left the area. As they
pulled out, Alexander saw a person lying on the ground in the
area from which the gunshots had come.

Lamar then completed his errand, and the men
stopped to purchase beer and went home. Shortly thereafter,
Alexander and Jackson walked to the nearby home of friend Winston
Griffith, where appellant eventually arrived, as well. Appellant
still had the gun with him. He asked Griffith if he had a bag
that appellant could put the shells in and said he wanted to
flush them down the toilet. Griffith became irate and told him to
leave.

Howard Latrell, appellant’s cellmate following
his arrest for these offenses, testified appellant admitted
committing the attempted robberies and shootings. Latrell’s
testimony was consistent with Alexander’s and Jackson’s testimony
about how the events occurred, what vehicle appellant was
driving, and what appellant reported he said and did afterward.

REHABILITATION OF ALEXANDER
WITH PRIOR CONSISTENT STATEMENT

Counsel for appellant cross-examined Alexander
about the statements appellant made when he got back into the car
immediately after the shooting:

[APPELLANT'S COUNSEL]: . . . [Y]ou
indicated in responding to [the prosecutor], I believe, that
[appellant] made a statement when he got back into the car and
you were all in the car, that he said he should have done it
alone. Is that your statement here today?

[ALEXANDER]: Yeah, I mean –

[APPELLANT'S COUNSEL]: All right. Now, again,
directing your attention to your previous testimony at the
preliminary hearing. Didn’t you say . . . in answer to
the question, "Did [appellant] say anything about that as he
did it?" And you responded in part, "He said — he kept
telling us he was sorry, that he didn’t really intend to do
it."

[ALEXANDER]: That’s what he said.

On re-direct examination, the Commonwealth
sought to clarify Alexander’s testimony regarding what appellant
said about the shooting immediately afterward:

[PROSECUTOR]: Now, [appellant's counsel] also
asked you about what [appellant] said to you about he was sorry
and whether he shouldn’t have done it.

I’d like for the ladies and gentlemen of the
jury to hear your complete answer in response to that. You see
the question to you, "Did [appellant] say anything about
that as he did it?"

Will you read your full answer please.

[ALEXANDER]: "He said — he kept telling
us he was sorry, that he didn’t intend to do it. Calvin basically
was really upset at him, saying he wanted to beat him up and
stuff of that sort. And [appellant] told him, you know, go ahead
and do it. He didn’t mean to do it. He was sorry. He had put us
in a bad situation, he was sorry he had put us in that
position."

* * * * * * *

[PROSECUTOR]: And the next question was,
"[Appellant] said he was sorry he put who in that
position?" Your response?

[ALEXANDER]: "Put the three of us that
were in the car with him."

[PROSECUTOR]: Your testimony today was that he
said he should have done it on his own?

[ALEXANDER]: (Nodding head.)

Also on re-direct, the prosecutor attempted to
introduce into evidence a letter that Alexander wrote to his
mother on January 12 or 13, 1998, shortly before he was contacted
by and spoke to police about the events of December 19, 1997. The
police noticed the letter when they arrived to interview him, and
they asked him to sign and date it. Counsel for appellant
objected to admission of the letter as follows:

[I]t exceeds the scope of the cross
examination. . . . [M]y recollection is that there
was no cross examination regarding statements that this witness
made to the police. And I gather the theory for trying to get
around my objection is that he is trying to address the issue of
an inconsistent statement. And there was questions and answers
upon cross examination relating to a possible prior inconsistent
statement, but it wasn’t in this area at all.

The prosecutor responded that the statement was
admissible as a prior consistent statement to rebut appellant’s
"attempts" to impeach Alexander with prior, purportedly
inconsistent statements. "There are three specific
incidences that I alluded to in my redirect already, specifically
about the time about when and where he saw the gun, any cartridge
or cartridge casings, and what [appellant] had to say about
all that
." (Emphasis added). He also argued that the
statements were made at a time when Alexander had no motive to
fabricate. The court admitted the letter, and Alexander read it
into the record without further substantive objection from
appellant. Appellant did not ask to have any portions of the
letter redacted and did not request a limiting instruction to
prevent the jury from considering the statements contained in the
letter as substantive evidence.

The letter corroborated Alexander’s testimony
about appellant’s statements following the shooting, reporting
that appellant admitted the shootings and said, "’I should
not have done this. I should have done this on my own. I
shouldn’t have done this with [Jackson] and
[Alexander]. . . . Ya’ll got kids and
stuff.’"

EVIDENCE OF ALLEGED WITNESS
INTIMIDATION

Alexander testified that, both before and after
the shooting, he worked alone on the night shift at a local gas
station. Appellant never visited Alexander at the gas station
before the shooting, but after December 19, appellant and his
girlfriend routinely came to the gas station while Alexander was
working and would stay "for a long time[,] . . .
into the wee hours in the morning." On a couple of those
occasions, Alexander and appellant talked about the shooting and
how appellant had obtained and disposed of the weapon.

In response to questioning by the Commonwealth
about whether any of appellant’s family members came to the gas
station while Alexander worked the late shift, Alexander
testified that appellant’s father came by once. When Alexander
started to testify about what appellant’s father said, counsel
for appellant objected on hearsay grounds. The Commonwealth then
proceeded to ask how Alexander felt when appellant’s father came
by the gas station late at night. The following exchange took
place, presumably in the presence of the jury:

[APPELLANT'S COUNSEL]: I would object to the
relevance. This isn’t probative of any pertinent issue in the
case. I would object on the grounds of relevancy.

THE COURT: Do you wish to respond,
[prosecutor]?

[PROSECUTOR]: Well, Your Honor, I think that
there’s already evidence before the Court of concealing evidence
in the case. And certainly that shows a consciousness of guilt. I
would suggest to the Court that if anyone else made any attempts
at intimidation of the witnesses, that would likewise show a
consciousness of guilt. That would be the purpose for the –

THE COURT: I’ll allow the question. Go ahead.

The Commonwealth again asked Alexander how the
visit by appellant’s father made him feel. Alexander answered,
"Pretty much intimidated. I mean, you know, when somebody
–." The prosecutor cut him off before he completed his
sentence.

On re-direct examination, Alexander testified
that he and his family had known appellant for years and were on
good terms with him and that appellant spent a lot of time with
Alexander’s young son. Alexander testified that he was reluctant
to come forward with what he knew about the shooting out of fear
for the safety of his family and son:

[I]f something were to make [appellant] even
think that somebody had said something, I stayed right down the
street from him, you know. I work a lot. I don’t want to go as
far as to say he would have harmed my family or something like
that. But after he did what he did, anything could happen, you
know. That’s how I’m looking at it. Anything could happen.

The prosecutor made no direct reference in his
closing argument to the evidence regarding appellant’s father’s
allegedly intimidating visit to his place of employment. His only
indirect reference was in explaining why Alexander may not have
come forward voluntarily:

It’s certainly not hard to consider what it
must be like to have information of heinous crimes like these
having been perpetrated by someone that you know, someone that
you’ve hung out with, someone that you may have known from the
neighborhood for a long time, someone that you may have some fear
of.

The jury was instructed on attempted capital
murder and attempted second degree murder, attempted robbery, and
use of a firearm in an attempted murder. The jury convicted
appellant of two counts of attempted capital murder and two
counts each of the attempted robbery and firearm offenses.

II.

ANALYSIS

A.

ADMISSIBILITY OF INTIMIDATION
EVIDENCE

Appellant contends the trial court erroneously
admitted evidence that Terrence Alexander, a Commonwealth’s
witness, felt "intimidated" when appellant’s father
visited him late one night at the gas station at which he worked
alone. The Commonwealth concedes on brief that the admission of
this evidence was error. We agree.

"Evidence that a person charged with a
crime procured, or attempted to procure, the absence of a
witness, or to bribe or suppress testimony against him, is
admissible, as it tends to show the unrighteousness of the
defendant’s cause of action and a consciousness of guilt." McMillan
v. Commonwealth
, 188 Va. 429, 432-33, 50 S.E.2d 428, 430
(1948); see Ragland v. Commonwealth, 16 Va. App.
913, 920, 434 S.E.2d 675, 679 (1993). In contrast,
"[e]vidence of [witness] tampering by a third party
. . . is only admissible where such third party is
acting with the authority, or the knowledge and consent, of the
accused. The privity of the accused to such conduct must be
proven before such evidence is admissible
." McMillan,
188 Va. at 433, 50 S.E.2d at 430 (emphasis added).

Here, no evidence proved that appellant was
responsible for or aware of his father’s presence at Alexander’s
workplace; therefore, the Commonwealth failed to prove an
essential predicate that would allow the jury to infer a
consciousness of guilt. Further, the only evidence in the record
is that Alexander felt threatened. The record contains no
indication of what appellant’s father said or did, other than
being present, which Alexander may have found intimidating.
Therefore, the trial court erred in admitting this evidence.

The Commonwealth nevertheless contends that the
erroneous admission of this evidence was harmless because it was
not linked directly to appellant, because other evidence clearly
showed appellant’s consciousness of guilt, and because the
evidence of appellant’s guilt as a whole was overwhelming. We
agree.

In Virginia, non-constitutional error is
harmless "[w]hen it plainly appears from the record
and the evidence given at the trial that the parties have had a
fair trial on the merits and substantial justice has been
reached." Code ? 8.01-678 (emphasis added). "[A] fair trial on the merits and substantial justice" are not
achieved if an error at trial has affected the verdict.
Consequently, under Code ? 8.01-678, a criminal conviction
must be reversed unless "it plainly appears from the record
and the evidence given at the trial that" the error did not
affect the verdict. An error does not affect a verdict if a
reviewing court can conclude, without usurping the jury’s fact
finding function, that, had the error not occurred, the verdict
would have been the same.

Lavinder v. Commonwealth, 12 Va. App.
1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).

An error is harmless (1) if "other
evidence of guilt is ‘so overwhelming and the error so
insignificant by comparison that the error could not have
affected the verdict,’" or, "even if the evidence of
the defendant’s guilt is not overwhelming, [(2)] if the evidence
admitted in error was merely cumulative of other, undisputed
evidence." Ferguson v. Commonwealth, 16 Va. App. 9,
12, 427 S.E.2d 442, 444-45 (1993) (quoting Hooker v.
Commonwealth
, 14 Va. App. 454, 458 n.2, 418 S.E.2d 343, 345
n.2 (1992)).

Both theories establish the harmlessness of the
error in appellant’s case. First, the only testimony or argument
on this issue was Alexander’s testimony that he felt intimidated
when appellant’s father visited his place of work late one night
when Alexander was working alone. The factors which rendered the
evidence inadmissible also limit its potential for harm because
no evidence established that appellant had anything to do with
his father’s visit, the prosecutor made no such argument, and
other evidence established appellant’s consciousness of guilt.
Evidence to which appellant posed no objection established that
Alexander had significant contact with appellant after the
shooting and told appellant how his girlfriend disposed of the
gun used to commit the crimes. After the shooting, appellant and
his girlfriend, who never visited Alexander at work before the
shooting, came to the gas station routinely and stayed for long
periods of time. Although Alexander did not testify that
appellant had threatened him, he explained that appellant lived
close to Alexander’s family and young son and had significant
contact with them and that Alexander was afraid of what appellant
might have been capable of doing to them if he became angry with
Alexander for talking to the authorities. This evidence
significantly diminished the harmfulness of the testimony about
appellant’s father.

Second, the evidence of appellant’s guilt on
the charged offenses was overwhelming. Alexander and Jackson, who
were traveling with appellant on the night of the shootings,
testified that they heard the gunshots in the area where the
victims said they were shot and that appellant confessed the
shootings to Alexander and Jackson when he ran back to the car.
Both men saw the weapon in appellant’s possession, and Alexander
saw one of the victims lying on the ground as the car in which
they were traveling left the area. The version of events
appellant gave to Alexander and Jackson was also consistent with
the victims’ testimony. Howard Latrell, appellant’s cellmate
after his arrest for the charged offenses, testified that
appellant confessed the crimes to him, as well. Latrell also gave
detailed testimony about the offenses, and no evidence in the
record established that Latrell had any source of information
about the crimes other than appellant. Latrell’s testimony about
the crimes was consistent with the testimony from Alexander,
Jackson and the victims.

Because the erroneously admitted evidence was
cumulative of other undisputed evidence and because the evidence
of appellant’s guilt was overwhelming, we hold the error was
harmless.

B.

ADMISSIBILITY OF LETTER AS
PRIOR CONSISTENT STATEMENT

The Commonwealth contends that appellant’s
objection in the trial court was insufficient under Rule 5A:18 to
preserve the issue he raised on appeal. We disagree. Upon
objecting to the Commonwealth’s motion to admit Alexander’s
letter to his mother as a prior consistent statement, appellant
argued to the trial court that "there was [sic] questions
and answers upon cross-examination relating to a possible prior
inconsistent statement, but it wasn’t in this area at all. So I
think I would ask Your Honor to grant that objection." The
prosecutor then detailed the three areas in which appellant had
attempted to impeach Alexander and argued that the letter was
admissible in response to those efforts as a prior consistent
statement. On appeal, appellant asserts that the trial court
erred in admitting the letter because appellant did not offer any
prior inconsistent statements for impeachment and "merely attempted,"
without success, "to impeach Alexander’s
testimony." He also asserts that the letter did not fit into
any of the exceptions authorizing admission of prior consistent
statements. We hold that appellant’s objection in the trial court
was sufficiently broad to preserve for appeal the question
whether his cross-examination of Alexander was sufficiently
impeaching to permit admission of the letter. We also hold that
the trial court did not abuse its discretion in admitting the
letter into evidence as a prior consistent statement.

"As a general rule, a prior consistent
statement of a witness is inadmissible hearsay." Faison
v. Hudson
, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992).
However, a prior consistent statement is admissible under certain
circumstances, such as "after a witness’s testimony has been
attacked by the admission of a prior inconsistent
statement." Clere v. Commonwealth, 212 Va. 472, 473,
184 S.E.2d 820, 821 (1971). Such evidence also may be admitted
when the opposing party "suggests that the declarant had a
motive to falsify his testimony and the consistent statement was
made prior to the existence of that motive . . . [or] alleges that the declarant’s testimony is a fabrication of recent
date and the prior consistent statement was made at a time when
its ultimate effect could not have been foreseen." Mitchell
v. Commonwealth
, 25 Va. App. 81, 84-85, 486 S.E.2d 551,
552-53 (1997). Under each of these circumstances, "the
[prior consistent] statement is offered merely to show that it
was made, rather than as proof of any matter asserted." Id.
at 85, 486 S.E.2d at 553.

The introduction of a prior consistent
statement of a witness is not admitted merely because the
testimony of a second witness calls the veracity of the first
witness into doubt. See Faison, 243 Va. at 405, 417
S.E.2d at 310 (fact that one witness’ testimony about color of
traffic light was contradicted by other witnesses did not
constitute type of impeachment sufficient to permit introduction
of that witness’ prior consistent statement); Mitchell, 25
Va. App. at 85, 486 S.E.2d at 553 (fact that accused gave
testimony contrary to that of victim did not permit Commonwealth
to introduce prior consistent statement of victim). As we have
recognized, "to allow the admission of a prior consistent
statement after impeachment of just ‘any sort’ would create an
unreasonably ‘loose rule.’" Faison, 243 Va. at 405,
417 S.E.2d at 310 (quoting Gallion v. Winfree, 129 Va.
122, 127, 105 S.E. 539, 540 (1921)). Therefore, a prior
consistent statement is admissible only where the testimony of
the witness is impeached by use of a prior inconsistent
statement, the witness is shown to have had a motive to
fabricate, or the witness’ testimony is alleged to have been
recently fabricated.

We have not had occasion to consider the
precise limits of the impeachment-by-prior-inconsistent-statement
exception, i.e., how inconsistent a prior statement must be
before a prior consistent statement may be admissible to
rehabilitate the witness. However, our case law speaks in terms
of "attack[s]" on, see Clere, 212 Va. at
473, 184 S.E.2d at 821, and "challenge[s]" to, see
King v. Commonwealth, 18 Va. App. 57, 59, 441 S.E.2d 704,
705 (1994), the credibility of a witness. See also
1 Charles E. Friend, The Law of Evidence in Virginia
? 4-12 (4th ed. 1993) (noting that prior consistent
statements are admissible "when impeachment has been
attempted
by the introduction of a prior inconsistent
statement
" (first emphasis added)). Manifestly, as long
as a party confronting a witness with an allegedly prior
inconsistent statement challenges the credibility of that witness
in any significant way, the trial court need not find that the
impeachment was successful–that the fact finder would have no
choice but to reject the testimony in its entirety–before
permitting the introduction of a prior consistent statement for
the purpose of rehabilitating that witness.

Here, the record establishes that appellant
attempted to show portions of Alexander’s trial testimony were
inconsistent with his testimony at the preliminary hearing. At
trial, regarding appellant’s alleged statements when he returned
to the car after the shooting, Alexander testified on direct
examination that appellant said

(1) appellant was sorry;

(2) appellant did not mean to do it;

(3) appellant put Alexander and the others

in a bad position; and

(4) appellant should have done it by

himself.

On cross-examination, appellant’s counsel
re-established Alexander’s testimony on direct that appellant
should have done it by himself, labeled (4) above. Counsel then
inquired about Alexander’s testimony at the preliminary hearing,
establishing that Alexander testified only that (1) appellant
said he was sorry and (2) he did not intend to do it. Thus,
appellant’s counsel sought to demonstrate to the jury Alexander
testified originally that appellant said only that he was sorry
and did not intend to do it, permitting the inference that he
believed he should not have done it at all, but later testified
that appellant merely said he should have done it alone. In
short, appellant’s counsel attempted to impeach Alexander by
establishing that his preliminary hearing testimony was more
favorable to appellant than his trial testimony and that his
trial testimony, therefore, was inaccurate or untruthful.

On re-direct examination, the prosecutor sought
to rehabilitate Alexander by having him read into the record the
entirety of his preliminary hearing testimony on this issue. That
process established that Alexander testified at the preliminary
hearing that appellant said (1) he was sorry, (2) he did not
intend to do it, and (3) he was sorry he put Alexander and the
other occupants of the car in a bad position. Alexander did not
testify at the preliminary hearing that appellant said (4) he
should have done it alone. Therefore, the prosecutor’s re-direct
examination based on Alexander’s preliminary hearing testimony
rehabilitated him only partially, as to statement (3) above.
Alexander’s letter to his mother, which was written less than a
month after the crimes and prior to the preliminary hearing, was
admissible to establish Alexander’s prior consistent statement
that appellant also said (4) he "should have done this on
[his] own." Thus, we hold that appellant’s cross-examination
of Alexander established an inconsistency between Alexander’s
preliminary hearing and trial testimony which rendered admissible
Alexander’s prior consistent statement on (4) above.
[1]

For these reasons, we hold that the admission
of the challenged testimony that Alexander felt intimidated by
appellant’s father was harmless error and that the trial court
did not abuse its discretion in admitting Alexander’s letter to

his mother as a prior consistent statement.
Therefore, we affirm appellant’s convictions.

Affirmed.

 

FOOTNOTES:

[1] We note that appellant objected
to the admissibility of the letter in its entirety as not
covering an area upon which Alexander had made a prior
inconsistent statement. Appellant did not request that the letter
be redacted to exclude any particular portions. Appellant also
did not request a limiting instruction directing the jury to
consider the letter only for purposes of rehabilitation and not
as substantive evidence. Therefore, we do not consider whether
the trial court’s failure to redact portions of the letter
or to give the jury a limiting instruction may have been error. See
Rule 5A:18; see also Williams v. Commonwealth,
11 Va. App. 149, 154, 396 S.E.2d 860, 863 (1990) (limiting
instruction).

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