Cousins v. Commonwealth Of Va.

• Citation: 693 S.E.2d 283,56 Va.App. 257
• Decision Date: 25 May 2010
• Docket Number: Record No. 1318-09-3.
• Parties: Marcious Antoine COUSINSv.COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

56 Va.App. 257

693 S.E.2d 283

Marcious Antoine COUSINSv.COMMONWEALTH of Virginia.

Record No. 1318-09-3.

Court of Appeals of Virginia,

Salem.

May 25, 2010.

COPYRIGHT MATERIAL OMITTED

Keith Orgera, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Jennifer C. Williamson, Assistant Attorney General, on brief), for appellee.

Present: ELDER, PETTY and ALSTON, JJ.

ELDER, Judge.

Marcious Antoine Cousins (appellant) appeals from his jury trial convictions for second-degree murder and use of a firearm during the commission of a felony, and his bench trial conviction for possession of a firearm by a convicted felon. On appeal, he contends the trial court improperly prohibited him from using evidence that the decedent belonged to a particular gang, erroneously preventing him (1) from questioning the jury pool about possible gang affiliations to assess bias, (2) from cross-examining one of the Commonwealth's witnesses about his affiliation with the decedent's gang, also as relevant to show bias, and (3) from introducing evidence about the decedent's gang affiliation to show the decedent's propensity for violence as related to appellant's claim of self-defense. We hold the proffered evidence was relevant, material, and more probative than prejudicial and that the trial court's refusal to allow appellant to use the evidence during trial in an attempt to show the witness' bias was not harmless error. Thus, we reverse and remand for retrial. Because gang affiliation evidence will be admitted on remand, we hold appellant will be entitled, within limits to be determined by the trial court in its discretion, to have the jury questioned regarding possible bias resulting from gang membership.¹

I.BACKGROUND ²

Because the admissibility of evidence depends on whether its proponent has laid a proper foundation from which the jury might conclude it is relevant to the proponent's theory of the case, we recite the evidence in a manner that reflects appellant's theory of the case. See, e.g., Charles E. Friend The Law of Evidence in Virginia § 1-5, at 30 (6th ed. 2003) (noting that “[w]here relevance, as distinguished from competence, [of proffered evidence] is involved,” and “the relevance ... depend[s] upon the existence of a fact, ... the judge may be obligated to admit the evidence and allow the jury to make the ‘preliminary’ determination of fact” as long as “there is some evidence from which the jury might reasonably find the fact upon which relevancy depends” (citing McMurray v. Commonwealth, 143 Va. 489, 129 S.E. 252 (1925))).

At about 3:30 a.m. on April 20, 2008, Officer T.B. Bouyea responded to a report of a shooting at a particular motel. Officer Bouyea, who was nearby when he received the call, arrived very quickly and found Michael Blanchard lying on the ground in the parking lot, bleeding and unresponsive. No weapon was found on Blanchard or anywhere in the vicinity.

It was undisputed that Blanchard had been shot by appellant, who claimed he fired in self-defense. It was also undisputed that, at the time of the shooting, Blanchard and his friend, Charlie Scott, were standing in the motel parking lot. Appellant, accompanied by passengers Calvin Hunter and Marcus Elliot, had driven Hunter's car into the parking lot a short time earlier to pick up Ciara Gillespie. No evidence indicated any of the occupants of the car knew Blanchard or Scott. The dispute existed over who started the altercation and upon what provocation. Appellant claimed Scott and the decedent attacked him without provocation.

Prior to trial, appellant moved the court to allow expert testimony and other evidence concerning Blanchard's and Scott's gang affiliation, admitted by the Commonwealth in discovery, to show Scott's bias; to show motive for Scott and Blanchard for the otherwise unexplained attack on appellant; and to show Blanchard's reputation in the community for violence as relevant to appellant's self-defense claim. Appellant also sought a ruling permitting the admission of the testimony of Suntrees Wheeler, who had previously “[taken] out a charge” against Blanchard for rape but later dropped it, saying she lived in Blanchard's gang territory and had been threatened by Blanchard and the gang not to “[go] forward with the charge.” Finally, appellant asked to voir dire the jury panel regarding any connections to Blanchard's alleged gang, the White Rock Crew, in order to assess possible bias.

The Commonwealth filed a competing motion seeking to exclude evidence of the decedent's alleged gang membership based on a lack of evidence to suggest gang rivalry or activity of any sort. The Commonwealth conceded “they may be able to question Mr. Scott about bias if they can establish some kind of gang connection and some kind of gang connection between Mr. Scott and the victim.” The Commonwealth also opposed the admission of the testimony of Suntrees Wheeler concerning the allegation of rape from 2004.

The court ruled appellant could ask the venire “whether any of them have any knowledge of these ... offenses,” but that he could not inquire about gang membership in voir dire or mention it in his opening statement. It later excluded all evidence relating to gang membership because appellant did not claim to be in a gang and failed to proffer any reason for why a gang-related attack would have occurred. The trial court noted appellant might be able to use the gang affiliation evidence on cross-examination of Scott, saying that if Scott denied being a friend of the decedent's, appellant could impeach him with evidence they were in the same gang. The court ruled that the testimony of Suntrees Wheeler would be admitted as relevant to self-defense.

At trial, the Commonwealth called three eyewitnesses. Ciara Gillespie testified that as she climbed into the right rear passenger seat of the car appellant was driving, passenger Calvin Hunter told appellant someone had said something to them. Appellant backed the car up to that person as he stood outside the motel and asked what he had said. The man, Scott, said “he didn't say anything,” and at that moment “this random person,” Blanchard, “r[a]n from behind out of nowhere” and hit appellant twice in the face. Appellant said to Hunter, “hand me that, Op or Ock or whatever,” and Hunter retrieved a gun from the passenger's door and handed it to appellant. Blanchard backed up with his hands up. Appellant “pointed the gun out the window and said, do you see this?” Blanchard responded, “I'm not scared of no mother fuckin' gun,” and appellant shot Blanchard. Gillespie said she could see both of Blanchard's hands when appellant fired and that she never heard Blanchard or Scott say he had a gun or any other type of weapon. She also never saw Blanchard reach for anything. However, Gillespie got out of the car when she saw Hunter pass the gun to appellant, and she conceded on cross-examination that her view of Blanchard could have been obstructed during that time.

Marcus Elliot, appellant's cousin, who was sitting in the rear seat of the car on the driver's side, also testified for the Commonwealth. Elliot said that after Gillespie got into the car, a man walked up to the car and argued with appellant. The man, Scott, opened appellant's car door, and appellant shut the door while they continued to argue. Scott “swung inside the car,” but Elliot did not know whether Scott hit appellant. A few minutes later, “another guy[, Blanchard, came] running up to the car,” and “[t]hen all three of them [were] arguing,” and “they [were] swinging up inside the car” and trying to open the car door. Blanchard “was reaching for something” “in the front of his pants,” and he stepped away from the car and “twisted and went inside his pants.” Elliot, fearing Blanchard was reaching for a gun, ducked, and he heard a gunshot about the same time Gillespie jumped out of the car. Immediately afterward, appellant drove away.

Charlie Scott testified for the Commonwealth, admitting he and Blanchard were good friends and had known each other for 12 years. Scott said they were at the motel for Blanchard's younger sister's after-prom party when Scott saw the car appellant was driving, which resembled one a friend of his owned. He mistakenly thought his friend was driving it and said, “Yo.” When the car backed up, Scott realized his mistake. He claimed appellant “just started trouble” and that they exchanged words for two or three minutes. Scott then saw the passenger retrieve a chrome object, which he “knew ... was a [hand]gun,” from the right door panel and set it in his lap. Just then, Blanchard came outside and asked Scott if he was all right. Scott said, “[Y]eah, they trying to start a little bit of trouble,” and he warned Blanchard not to get too close to the car “because the passenger got a gun on his lap.” Scott moved backward, but Blanchard moved closer to the car, to a point six or seven feet away from it, and Scott saw the gun in appellant's hand. Scott said Blanchard and appellant “were having a little conflict” at that time, “they was just going back and forth,” but Scott claimed he could not hear what was being said, and he “just [saw] [appellant] fire the gun.” As soon as the shot was fired, the car “just peeled off,” and Scott realized Blanchard had been shot. Scott denied seeing Blanchard with a gun or taking a weapon from Blanchard's waistband. Scott denied seeing a girl exit the motel and get into the car, and he also denied that either he or Blanchard had been “swing[ing] [at] ... [appellant].”

Appellant renewed his motion to question Scott about whether he and Blanchard belonged to a gang. Outside the presence of the jury, Scott denied he was a member of a gang, and the trial court ruled that testimony was not relevant and could not be presented to the jury.

Appellant called his uncle, front-seat passenger Calvin...