Home / Fulltext Opinions / Supreme Court of Virginia / JAMES v. COMMONWEALTH OF VIRGINIA (59884)



June 6, 1997
Record No. 961294





Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
and Keenan, JJ., and Whiting, Senior Justice

In this appeal, we consider whether a criminal defendant was
entitled to ask a physician whether a witness, who had suffered
brain injuries, was "capable of lying" at trial.

Lorenzo Demonte James was tried before a jury and convicted
of: first-degree murder, malicious wounding, use of a firearm in
the commission of a murder, and use of a firearm in the
commission of a malicious wounding. The jury fixed his punishment
as follows: life imprisonment for the first-degree murder
conviction and sentences totaling 23 years’ imprisonment for the
remaining convictions. The trial court confirmed the jury’s
verdict and entered judgment thereon. The Court of Appeals denied
the defendant’s petition for appeal by unpublished order. We
awarded the defendant an appeal.

On July 6, 1994, Terrence Hicks and Randall Thomas were
"hanging out" next to Hicks’ car which was parked in an
apartment complex parking lot on Jefferson Davis Highway in
Richmond. Both men were shot some time late that morning. Hicks
died at the scene, and Thomas was taken to the Medical College of
Virginia Hospitals.

Richmond Police Detective C. T. Woody, Jr., questioned Thomas
at the hospital five days later. Thomas identified James as the
individual who shot him and Hicks. Thomas gave the following
version of events to Detective Woody. Thomas, Hicks, and James
had driven from the apartment complex to a convenience store to
purchase beer. They returned to the apartment complex parking
lot, and an argument ensued between James and Hicks. The two men
argued because the "music was too loud" and someone had
been "selling drugs." Hicks "pulled" a pistol
and James left. Hicks then placed the pistol in his car. James
returned, armed with two pistols, shot Hicks and Thomas, and then
ran away.

During the trial, Thomas gave the following testimony which
differs in some respects from the statements he had made to
Detective Woody. Thomas and Hicks drove to the apartment complex
on the morning of July 6, 1994, to "hang out, [and] drink
some beer." James approached Thomas and Hicks and complained
about noise. An argument ensued between James and Hicks. Thomas
walked alone to a convenience store to purchase beer. When he
returned to Hicks’ car, which was parked in the apartment complex
parking lot, Hicks was seated in the front passenger seat. Thomas
entered the car and sat in the rear seat. James, armed with two
pistols, approached the car. James entered the car, sat in the
driver’s seat, shot Hicks in the head, and shot Thomas several
times as he tried to flee from the car. Thomas denied that Hicks
had a pistol in his car.

Dr. David X. Cifu, medical director of the brain injury
rehabilitation program at the Medical College of Virginia
Hospitals, treated Thomas for brain injuries he sustained when he
was shot. Dr. Cifu was qualified to testify as an expert witness
knowledgeable about the subject of brain injury rehabilitation.
During his direct examination, Dr. Cifu stated that Thomas
sustained certain brain injuries, including "problems with
thinking, memory [and] judgment." Dr. Cifu testified that a
person, like Thomas, who had sustained traumatic brain injuries,
would have problems with acute memory, "which is acute short
term memory being what happened the last hours, the last couple
of days, immediate recall, recalling what you were just told. In
addition you commonly have what’s called retrograde amnesia. What
that implies is that in the acute period after a brain injury, a
couple of weeks to months, it would be very unusual to recall
immediate events of the injury, whether it is a car accident [or] gunshot wounds."

Dr. Cifu also testified that Thomas was still in recovery, but
"his memory . . . cognitive, and . . .
thinking skills are to the point where he is completely aware of
his situation, where he is and what is going on. And
. . . [Thomas] has had recovery of his immediate memory
and probably about 90 percent recovery from his short term memory
deficit. So, he is probably again about 90 percent recovered from
his thinking deficit . . . ."

The defendant asked Dr. Cifu the following question during
cross-examination: "Is Mr. Thomas capable of lying
today?" The Commonwealth objected, and the trial court
sustained the objection. The court stated: "I don’t think
the doctor can testify as to the truth and veracity of this
particular [witness] unless his brain is so damaged or he is so
confused that he is incapable of understanding the difference
between truth and untruth."

On appeal, James essentially argues that the trial court erred
by refusing to permit him to cross-examine Dr. Cifu on the
subject whether Thomas was "capable of lying."
Continuing, James claims that the trial court’s failure to permit
him to cross-examine Dr. Cifu on this subject contravened his
Sixth Amendment right to confrontation. We disagree with James.

The Confrontation Clause of the Sixth Amendment of the
Constitution of the United States grants a criminal defendant the
right to cross-examine witnesses called by the prosecution. Barker
v. Commonwealth, 230 Va. 370, 376, 337 S.E.2d 729, 733
(1985); Shanklin v. Commonwealth, 222 Va. 862, 864,
284 S.E.2d 611, 612 (1981). "[T]he main and essential
purpose of confrontation is to secure for the opponent the
opportunity of cross-examination
." Delaware v. Van
, 475 U.S. 673, 678 (1986) (quoting Davis v. Alaska,
415 U.S. 308, 315 (1974)). The Confrontation Clause, however,
does not grant a defendant an unlimited right to
cross-examination. Indeed, the Supreme Court has held that
"trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination." Van Arsdall, 475 U.S. at

It is well settled in this Commonwealth that the credibility
of witnesses and the weight to be given to their testimony are
questions exclusively for the jury. Barker, 230 Va. at
373, 337 S.E.2d at 732; Coppola v. Commonwealth,
220 Va. 243, 252, 257 S.E.2d 797, 803 (1979), cert. denied,
444 U.S. 1103 (1980); Zirkle v. Commonwealth, 189
Va. 862, 870, 55 S.E.2d 24, 29 (1949); Johnson v. Commonwealth,
142 Va. 639, 640, 128 S.E. 456, 456 (1925). The settled law of
this Commonwealth simply does not permit a defendant to ask a
witness to opine whether another witness is "capable of
lying." The finder of fact, in this instance the jury, must
determine a witness’ veracity.

We hold that James’ Confrontation Clause rights were not
violated. The trial court explicitly gave James an opportunity to
cross-examine Dr. Cifu on the subject whether Thomas’ brain
damage affected his ability to distinguish right from wrong. We
note that Thomas took advantage of this opportunity and pursued
this line of cross-examination in the presence of the jury. The
trial court’s refusal to permit Dr. Cifu to speculate on Thomas’
veracity was a reasonable limitation on the scope of that

Accordingly, we will affirm the judgment of the Court of