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Reversal for Improper Impeachment

On appeal of jury trial convictions for second-degree murder and use of a firearm, the Court of Appeals orders a new trial for trial court error in admitting improper impeachment evidence that defendant purchased the firearm illegally; the error could have influenced the jury’s assessment of defendant’s credibility, critical to his defense.

One April evening in 2010, police were called to break up a fight outside a night club between two groups, defendant in one and victim in another.  A second fight broke out and defendant went to a friend’s car and got a gun he had stored under the front seat. Defendant claims he returned to the fight scene out of concern for a woman and brought the gun in self defense because of the earlier beating.  He stated he panicked when victim and a group of 20 people ran toward him and defendant swung at him.  Over defendant’s objection, the commonwealth elicited defendant’s admission that he illegally obtained the gun used.   The commonwealth’s closing argument stressed defendant’s admission showed poor character and his testimony should not be believed.  The jury convicted defendant of second degree murder and use of a firearm.

On appeal, defendant challenges the admission of evidence concerning the legality of the gun purchase and the denial of his request to strike a juror and give proffered jury instructions.  We reverse on the erroneous admission of evidence without considering defendant’s other arguments.   Under Williams v. Commonwealth, 203 Va. 837 (1962), other crimes evidence is not admissible to show character (other than veracity) or propensity to commit a similar crime.  Whether defendant possessed the gun legally or illegally was not relevant to any element of the crimes charged or defendant’s credibility as a witness.  But the commonwealth used defendant’s admission to attack both his character and credibility.  Even if other record evidence supports the conviction, Clay v. Commonwealth, 262 Va. 253 (2001), requires we be able to conclude the error had no or only slight influence on the fact finder.  Credibility was central to defendant’s self defense claim, making it impossible to find the error harmless.

Reversed and remanded.

Cunningham v. Commonwealth (Elder) No. 0079-11-2, Jan. 17, 2012; Richmond City Cir. Ct. (Cavedo) Catherine S. Rusz for appellant; Karen Misbach AAG. VLW 012-7-007(UP), 8 pp.

VLW 012-7-007

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