Fulltext Opinions
COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
JOYCE ELAINE CHAMBERS
MEMORANDUM OPINION* BY
v. Record Nos. 1623-95-4 JUDGE JOHANNA L. FITZPATRICK
through 1629-95-4 MARCH 11, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Bobby B. Stafford (Kathryn E. Coward; Raby &
Stafford, on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Joyce Elaine Chambers (appellant) was tried jointly with
Richard Lawrence Randolph (Randolph), and Alice Lavada Coffey
(Coffey), and was convicted in a jury trial of grand larceny,
credit card theft, and conspiracy to commit a felony. On appeal,
she argues that the trial court erred in: (1) denying her motion
to sever and (2) limiting her cross-examination of the
Commonwealth’s witness.1 For the reasons that follow, we reverse
*Pursuant to Code ? 17-116.010 this opinion is not
designated for publication.
1Because we reverse on the cross-examination issue, we do
not address the severance issue. However, we address the
severance issue in the companion case Randolph v. Commonwealth,
___ Va. App. ___, ___ S.E.2d ___ (1997) (holding joint trial not
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the convictions.
On the evening of July 24, 1994, Sergeant Kenneth Hutton
(Hutton) of the Metropolitan Washington Airport Authority (MWAA)
was on pickpocket detail at National Airport. He first observed
Randolph, with a green garment bag draped over his shoulder,
walking toward the United Airlines section of the airport. In
the American Airlines baggage claim area, Hutton saw Randolph
approach several people from behind who were waiting to claim
their baggage. Randolph stood within inches of each person for a
few minutes and then moved on to another person. He never
claimed any baggage. Next, he went to the cab stand outside the
Northwest Airlines baggage claim area and approached several
people in the same manner.
When Randolph left the cab stand, he got into the front
passenger seat of a green Mercury automobile driven by appellant
and put the green garment bag in the backseat. A few minutes
later, Sergeant Alan Pelleranan (Pelleranan), a MWAA officer, saw
the car driven by appellant arrive at the U.S. Air terminal with
Randolph, Coffey, and Linda Williams (Williams). Appellant,
Randolph, and Williams went into the terminal. When Hutton
arrived at the terminal, he saw appellant and Randolph exit the
terminal and walk over to the shuttle bus stop. Randolph again
error where codefendant’s confession implicates both defendants
and statement is otherwise admissible.)
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approached people from behind while appellant stood about fifteen
feet away, looking around. Appellant and Randolph returned to
the Mercury, which Coffey had parked nearby. Pelleranan
apprehended Williams inside the terminal and brought her to the
car.
Upon her arrest and after being advised of her Miranda
rights, Hutton asked appellant “why she had come to the airport.”
She answered: “To steal . . . to pick pockets.” Hutton wrote
in his notes that: “Subject #3 [appellant] advised us in the
interview that on the way over to National Airport from the D.C.
Convention Center [S]ubject[] #1 [Williams] and Subject #2
[Randolph] discussed stealing. She further advised us that she
knew the reason they were coming to the airport was to steal
(pick-pocket).”
Appellant, Randolph, and Coffey were indicted for grand
larceny, credit card theft, and conspiracy to commit a felony,
and were scheduled to be tried jointly. Prior to trial, Randolph
and Coffey objected to the admission of appellant’s statement,
and all three codefendants requested to be tried separately. The
court denied the motions.
On the morning of trial, when the codefendants renewed their
motions to sever, the Commonwealth suggested redacting
appellant’s statement from “we came to steal” to “I came to
steal.” (Emphasis added). Appellant objected to the redaction
and argued that it would negate the conspiracy theory, and that
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it was prejudicial to her because it gave the other defendants “a
license to dump it on her to exonerate” themselves. The trial
court ruled that “[t]he motion to sever is denied. The statement
is admissible if it’s redacted to, [‘]I came to steal,[‘] where
it’s clear there[] [are] no references to the other individuals
that are on trial.”
During the joint trial, codefendant Randolph requested a
limiting instruction that would direct the jury to consider the
statement only in reference to appellant. The Commonwealth
argued that the statement required no such instruction, because
it was admissible as a declaration against penal interest. In
response, appellant asserted that redacting her statement would
be “tantamount to instructing the jury that she is saying that, I
came over her[e] to steal.” Appellant also contended that the
redaction would make cross-examination more difficult because she
would not be able to “cross-examine on the ‘we,’ the context, who
was there, who is included in the statement and so forth.” The
court held that the statement was “admissible if it’s redacted to
‘I came to steal.'”
At trial, Hutton testified that appellant told him
that she came to the airport “to steal . . .
to pick pockets.” During cross-examination,
appellant questioned Hutton about his written
notes, and Hutton admitted that his testimony
regarding appellant’s confession was not an
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exact quote. Appellant then asked Hutton:
“[I]sn’t it correct that your summary of that
statement suggests that they came over here
to steal?” (Emphasis added). The trial
court sustained codefendant Coffey’s
objection, and required appellant to question
Hutton further regarding his report out of
the presence of the jury. Hutton testified
that although he wrote “they,” appellant
actually used the word “we.” The court ruled
that appellant could not introduce the
reference to “they” because of “the authority
[appellant’s counsel] relied on [Berger v.
Commonwealth, 217 Va. 332, 228 S.E.2d 559
(1976)].” Appellant argued that she was “not
saying in that statement that she came over
here to steal,” but “that others came over
here to steal.” (Emphasis added). In
response to Randolph’s objection to “anybody
asking any question about any of the details
of that statement,” the court told
appellant’s counsel that he would not be
allowed to ask questions regarding the
written statement as reflected in Hutton’s
report, and if he did, he would be held in
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contempt. The court directed: We spent
hours talking about this and [appellant’s
counsel] asked the question anyway. . . . I
am telling [appellant’s counsel] in no
uncertain terms that if [he] [tries] to
deliberately cause a mistrial on areas that
[he] know[s] [he] should not ask, [he] will
be held in contempt to Court. [He] may get
the mistrial but [he’ll] get more than that.
On March 23, 1995, appellant was convicted of grand larceny,
credit card theft, and conspiracy to commit a felony. On appeal,
appellant argues that the trial court erred in (1) limiting her
cross-examination of the Commonwealth’s witness regarding her
confession, and (2) overruling the motions to sever and
subsequently admitting a redacted statement attributed only to
appellant.
In a separate trial, appellant’s unredacted statement would
have been admissible against the codefendants under the
declaration against penal interest exception to the hearsay rule
and against appellant as a party admission. See Scaggs v.
Commonwealth, 5 Va. App. 1, 4-5, 359 S.E.2d 830, 831-32 (1987)
(“[I]t is settled in Virginia that . . . a declaration against
penal interest is recognized as an exception to the hearsay
rule. . . .”), and Alatishe v. Commonwealth, 12 Va. App. 376,
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378, 404 S.E.2d 81, 82 (1991) (“Any statement by a party to the
proceedings . . . is admissible as an exception to the hearsay
rule when offered against that party.”). Appellant argues that
redaction was inappropriate in this case because it changed the
meaning of her original statement and it failed to “solve a
conflict that only severance could adequately alleviate.”
In the instant case, appellant’s response to Hutton’s
question about the codefendants’ purpose in being at the airport
was contested. The trial court redacted appellant’s original
response that Williams and Randolph discussed stealing and that
she knew “they” were coming to the airport “to steal” to “I came
to steal.” This change “radically alter[ed] the meaning” of the
statement. See Pugliese v. Commonwealth, 16 Va. App. 82, 90, 428
S.E.2d 16, 23 (1993), and United States v. Washington, 952 F.2d
1402, 1404 (D.C. 1991), cert. denied, Jones v. United States, 503
U.S. 1009 (1992). Further, the limitation on cross-examination
of the context of the statement compounded the detrimental effect
of the redaction. Thus, appellant argues, the trial court
improperly limited her cross-examination of Hutton regarding her
confession, which was “the most crucial part of the evidence
against her.” We agree.
“Cross-examination of prosecution witnesses ‘is “fundamental
to the truth-finding process and is an absolute right guaranteed
to an accused by the [C]onfrontation [C]lause of the [S]ixth
[A]mendment.”‘” Maynard v. Commonwealth, 11 Va. App. 437, 444,
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399 S.E.2d 635, 639 (1990) (en banc) (quoting Williams v.
Commonwealth, 4 Va. App. 53, 77-78, 354 S.E.2d 79, 93 (1987)
(citations omitted)). “Subject to such reasonable limitations as
the trial court may impose, a party has an absolute right to
cross-examine his opponent’s witness on a matter relevant to the
case, which the opponent has put in issue by direct examination
of the witness.” Id. (citation omitted) (emphasis added).
“Limitation of cross-examination is a matter within the sound
discretion of the trial court and is subject to review only for
abuse of discretion.” Naulty v. Commonwealth, 2 Va. App. 523,
529, 346 S.E.2d 540, 543 (1986) (citation omitted).2
2See also United States v. Gravely, 840 F.2d 1156, 1163 (4th
Cir. 1988) (citing United States v. Atwell, 766 F.2d 416, 419-20
(10th Cir. 1985), cert. denied, 474 U.S. 921 (1985)) (“limiting
the extent of cross-examination is within the discretion of the
trial court and does not warrant reversal absent an abuse of
discretion clearly prejudicial to the defendant”), and Delaware
v. Van Arsdall, 475 U.S. 673, 678 (1986) (“[T]rial judges retain
wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.”) (emphasis
added).
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“In exercising that discretion, the trial judge may
appropriately consider whether the proposed cross-examination
would unfairly prejudice a co-defendant.” United States v.
Bodden, 736 F.2d 142, 145 (4th Cir. 1984) (citing United States
v. Dansker, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S.
1038 (1977)). A restriction on cross-examination to avoid unfair
prejudice to a codefendant when the probative value of the
excluded evidence is slight will be upheld. See, e.g., United
States v. Tarantino, 846 F.2d 1384, 1400 (D.C. Cir.) (per
curiam), cert. denied, 488 U.S. 840 (1988).
Regarding oral utterances “[t]he general rule . . . is . . .
that the substance or the effect of the actual words spoken will
suffice, [and] the witness . . . may give his ‘understanding’ or
‘impression’ as to the net meaning of the words heard.” Pierce
v. Commonwealth, 2 Va. App. 383, 388, 345 S.E.2d 1, 4 (1986)
(citations omitted). However, “[w]hen a confession is
admissible, the whole of what the accused said upon the subject
at the time of making the confession is admissible and should be
taken together . . . the accused is entitled to put in evidence
all that was said to and by him at the time . . . including any
exculpatory or self-serving declarations connected therewith.”
Id. at 389, 345 S.E.2d at 4 (emphasis added).
In the instant case, the trial court restricted appellant’s
cross-examination of Hutton regarding the actual words and
context of her confession. It prevented her from eliciting
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potentially exculpatory evidence or exploring any ambiguity in
the original statement. Although the trial court attempted to
redact appellant’s statement to prevent possible prejudice to the
codefendants, see Randolph v. Commonwealth, ___ Va. App. ___,
___, ___ S.E.2d ___, ___ (1997), the court’s restriction of
appellant’s cross-examination regarding the context of the
statement and of the circumstances surrounding its making was
prejudicial to her.
We cannot say, when looking at this record, that the error
was harmless, as the statement was the primary evidence linking
appellant to the crimes. Accordingly, we hold that the court
abused its discretion, and we reverse and remand this case for
further proceedings.
Reversed and remanded.
