Blount v. Com.

• Decision Date: 23 April 1973
• Citation: 213 Va. 807,195 S.E.2d 693
• Parties: William BLOUNT v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 693

195 S.E.2d 693

213 Va. 807

William BLOUNT v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

April 23, 1973.

Paul M. Lipkin, Robert H. Anderson, Jr., Norfolk (Goldblatt, Lipkin, Cohen, Anderson, Levy & Jenkins, Norfolk, on brief), for plaintiff in error.

Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

COCHRAN, Justice.

William Blount was convicted in the trial court, sitting with a jury, of unlawfully and feloniously distributing heroin. He is here on a writ of error to the judgment order imposing a sentence, in accordance with the jury verdict, of thirty-five years in the State penitentiary and payment of a fine of $25,000.

Blount's assignments of error that merit our consideration challenge the trial court's actions in (1) ruling on two instructions, (2) refusing to permit certain cross-examination by Blount's counsel of the principal witness for the Commonwealth, and (3) permitting allegedly improper argument to be made by the Commonwealth's Attorney.

The Commonwealth's evidence shows that two detectives on July 17, 1971, conducted a surveillance of premises in the City of Norfolk occupied by Dolly's Used Furniture and Antiques, a business operated by Blount's wife, Dolly. They observed Blount come out of the shop, look around and go back inside. About fifteen minutes later Alton Wilson, known to the officers as a user of narcotics, came out of Dolly's and drove off in an automobile that had been parked in front of the store.

After following Wilson for several miles the officers stopped him and found fifty capsules of heroin in his car. They arrested him and charged him with possession of heroin with intent to distribute it. Subsequently, Blount was indicted for selling the heroin to Wilson.

At Blount's trial Wilson was the principal witness for the Commonwealth. He testified that he purchased the fifty capsules of heroin from Blount and intended to resell them to addicts. He also testified that he had received no promise of reward or special consideration for testifying, although he admitted that the case against him had been nol prossed. Obviously, the Commonwealth's case against Blount depended on Wilson's credibility. If Wilson's testimony was credible there was sufficient evidence to support Blount's conviction. Blount did not testify and no evidence was introduced on his behalf.

Blount offered Instruction C2--A reading in pertinent part as follows:

'Although one or more witnesses may positively testify as to an alleged fact and although said statement may not be contradicted by witnesses, the jury may altogether disregard said statement if you believe the same to be Improbable or untrue.' (Emphasis added.)

Over objection the trial court, before granting the instruction, deleted the words 'improbable or', to which action Blount has assigned error.

The instruction was based upon the exception to the general rule that where an unimpeached witness testifies positively to a fact and is uncontradicted the jury may not discredit his testimony. As given, but not as tendered, the instruction was a correct statement of the exception. The jury could but did not have to believe Wilson's uncontradicted testimony. Whether or not the witness is contradicted the test is still credibility, as determined by the jury.

If the statements of an uncontradicted witness are 'inherently improbable', Stegall v. Commonwealth, 208 Va. 719, 722, 160 S.E.2d 566, 568 (1968), or 'grossly improbable', Presley v. Commonwealth, 185 Va. 261, 266, 38 S.E.2d 476, 478 (1946), the jury may disbelieve him. But the exception only means that uncontradicted testimony may be disregarded if the jury believes that it is untrue. In determining whether it is untrue he jury may rely on such factors as the manner of the witness, as the jury here was advised in the usual credibility instruction, and the inherent improbability of his statements. So the instruction as offered was incomplete and misleading in its reference to improbability.

Moreover, there was nothing inherently improbable about Wilson's testimony. He admitted buying the heroin from Blount at a time and place where the officers testified that he and Blount were together. The question for the jury to answer was whether Wilson was telling the truth. See Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958). There was no error in giving the instruction as amended.

Blount has also assigned error to the trial court's modification of Instruction C-8, offered by him, by deleting therefrom the italicized language:

'The Court instructs the jury that, while they may find a verdict upon the supported or unsupported testimony of an accomplice, such evidence is to be received with great caution, And the Court, in this case, warns the jury of the danger of basing a verdict on the unsupported testimony of an accomplice.

'The Court further instructs the jury that the testimony of an accomplice must be received with great care and caution, and if you believe the testimony of an alleged accomplice was false, and that he was induced to testify falsely either by fear of punishment or hope of reward you must disregard that testimony in its entirety.' (Emphasis added.)

The Attorney General, relying on Walker v. Commonwealth, 212 Va. 289, 291, 183 S.E.2d 739, 741 (1971), argues persuasively that Wilson was not an accomplice of Blount's and that Blount was therefore...