Guerrero-Giron v. Commonwealth

• Court: Virginia Court of Appeals
• Writing for the Court: Jan L. Brodie
• Decision Date: 08 November 2011
• Docket Number: Record No. 1903-10-4
• Citation: Guerrero-Giron v. Commonwealth, Record No. 1903-10-4 (Va. App. Nov 08, 2011)
• Parties: PASTOR ARMANDO GUERRERO-GIRON v. COMMONWEALTH OF VIRGINIA

PASTOR ARMANDO GUERRERO-GIRON v. COMMONWEALTH OF VIRGINIA

Record No. 1903-10-4

COURT OF APPEALS OF VIRGINIA

NOVEMBER 8, 2011

Present: Judges Petty, Alston and Senior Judge Coleman

Argued at Alexandria, Virginia

MEMORANDUM OPINION^* BY

JUDGE WILLIAM G. PETTY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Jan L. Brodie, Judge¹

Deborah E. Kramer for appellant.

Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli,

II, Attorney General, on brief), for appellee.

Appellant, Pastor Armando Guerrero-Giron, was convicted by a jury of malicious wounding, in violation of Code § 18.2-51, and was sentenced to eight years' imprisonment.² On appeal, appellant assigns the following errors to the trial court's rulings: (1) the trial court erred in prohibiting appellant from asking a witness during cross-examination the precise penalty range of the crimes with which the witness was charged; (2) the trial court erred in admitting a BB gun and two baseball bats into evidence; (3) the trial court erred in admitting into evidence appellant's statement that he had been jumped into the Mexican Pride gang at some point allegedly after the date of the offense; (4) the trial court erred in denying appellant's motion tosuppress his confession, because it was tainted by a previous inadmissible confession; and (5) the trial court erred in refusing to instruct the jury on "heat of passion" as a defense to malicious wounding, because the evidence supported such an instruction. For the reasons expressed below, we conclude that the trial court did not err. Therefore, we affirm the trial court's judgment.

I.

Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal. "On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

II.

A. Cross-Examination

Appellant first contends that the trial court erred in prohibiting appellant from asking a witness during cross-examination the precise penalty range of the crimes with which the witness was charged. Appellant argues that this violated his rights under the Confrontation Clause of the Sixth Amendment. We disagree.

We review constitutional arguments de novo as questions of law. Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005). "An accused has a right to cross-examine prosecution witnesses to show bias or motivation and that right, when not abused, is absolute. The right emanates from the constitutional right to confront one's accusers." Brown v. Commonwealth, 246 Va. 460, 464, 437 S.E.2d 563, 564-65 (1993). Specifically, "'a defendant is entitled to show that testimony of a prosecution witness was motivated by anexpectation of leniency in a future trial.'" Id. at 464, 437 S.E.2d at 565 (quoting Hewitt v. Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114 (1984)). Although a cross-examiner generally may ask "'anything tending to show the bias on the part of a witness,'" Scott v. Commonwealth, 18 Va. App. 692, 694, 446 S.E.2d 619, 619-20 (1994) (emphasis omitted) (quoting Henning v. Thomas, 235 Va. 181, 188, 366 S.E.2d 109, 113 (1988)), a cross-examiner does not have unlimited liberties, id. at 694, 446 S.E.2d at 620. "The scope of cross-examination in general, and the extent of testimonial impeachment in particular, are left to the sound discretion of the trial court and are not subject to review unless plainly abused." Id. at 693-94, 446 S.E.2d at 619. However, "[i]t is only after the right of cross-examination has been substantially and fairly exercised that the allowance of further cross-examination becomes discretionary with the court." Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961).

On the facts before us, we conclude that appellant substantially and fairly exercised his right to cross-examine the witness in question regarding the witness' potential bias or motive to lie and that the trial court did not abuse its discretion by limiting the extent of this line of cross-examination.

Leonardo Carbajal Gonzalez testified on behalf of the Commonwealth as an eyewitness to the beating for which appellant was convicted. Gonzalez testified that both he and appellant were members of the Mexican Pride gang and that he was with appellant when appellant hit the victim multiple times with a baseball bat. During cross-examination, defense counsel confronted Gonzalez with his indictment on the charges of malicious wounding and illegal street gang participation. Defense counsel then asked Gonzalez whether it was correct that these charges carried a "significant possibility of prison" and "lots and lots of prison," and Gonzalez responded in the affirmative. Defense counsel then asked whether Gonzalez was "hoping that by helpingthe Commonwealth out today that [he] might do less prison," to which Gonzalez also responded in the affirmative.³

Prior to trial, defense counsel had indicated that she desired to ask Gonzalez about the exact number of years to which he could be sentenced for the crimes for which he was indicted. She felt this was important for the purpose of trying to show bias or motive for not telling the truth. The trial court instructed counsel that she could say Gonzalez was facing a significant, considerable, or large amount of possible prison time for the crimes with which he had been charged, but that she could not mention an exact range or time frame. Contrary to appellant's contentions, this was not error.

The questions that defense counsel asked during her cross-examination clearly elicited the fact that Gonzalez was facing a potentially large amount of prison time for his own charged offenses and that by testifying for the Commonwealth against appellant, he was hoping to gain leniency. This certainly demonstrated to the jury that Gonzalez had a strong personal reason for giving favorable testimony on behalf of the Commonwealth. Thus, this questioning constituted a substantial and fair exercise of appellant's right to cross-examine Gonzalez regarding bias and motivation. Accordingly, "the allowance of further cross-examination [was] discretionary with the [trial] court." Moore, 202 Va. at 669, 119 S.E.2d at 327.

What appellant wished to do beyond this was to elicit testimony before the jury regarding the exact range of punishment Gonzalez was facing. However, Gonzalez had been indicted for participation in a criminal street gang and for malicious wounding, which is a lesser-included offense of aggravated malicious wounding. Appellant was then on trial for participation in astreet gang and aggravated malicious wounding.⁴ Thus, any mention of the sentence that Gonzalez was potentially facing would have informed the jury of the sentencing range for the crimes for which appellant was then being tried. The trial court was certainly well within its discretion to prohibit this from occurring. See Walls v. Commonwealth, 38 Va. App. 273, 279, 563 S.E.2d 384, 387 (2002) ("[T]he available range of punishment upon conviction for a crime is not relevant to the issue of guilt or innocence.").⁵

Thus, despite the fact that the trial court prohibited appellant from asking Gonzalez the specific sentence he was facing, appellant had the opportunity to fully explore Gonzalez's possible bias or motive to lie. Because the trial court allowed appellant to ask Gonzalez generally about the prison time he was facing and to question Gonzalez specifically about his hopes for leniency, the trial court did not abuse its discretion by precluding appellant from questioning Gonzalez about the exact sentencing range. Cf. Whittaker v. Commonwealth, 217 Va. 966, 967-68, 234 S.E.2d 79, 81 (1977) (holding that the trial court erred in prohibiting a defendant from asking any questions regarding alleged leniency in sentencing that may have motivated a witness to testify against the defendant). Defense counsel's purpose in seeking to elicit this information on cross-examination was adequately served without the addition of specific details regarding the precise sentencing range Gonzalez was facing.

B. The BB Gun and Baseball Bats

Appellant next contends that the trial court erred in admitting into evidence a BB gun and two baseball bats the police obtained from appellant's residence. He argues that these objects were not relevant and were unfairly prejudicial to him. We disagree.

We review a trial court's decision regarding the admissibility of evidence for abuse of discretion. Gonzales v. Commonwealth, 45 Va. App. 375, 380, 611 S.E.2d 616, 618 (2005) (en banc). The standard for establishing the relevance of proposed evidence is relatively low: "Evidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case." Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993). "'The test establishing relevance is not whether the proposed evidence conclusively proves a fact, but whether it has any tendency to establish a fact at issue.'" Holsapple v. Commonwealth, 39 Va. App. 522, 537-38, 574 S.E.2d 756, 763 (2003) (en banc) (quoting Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988)).

One of the crimes with which appellant was charged and for which he was on trial was that of participation in a criminal street gang, in violation of Code § 18.2-46.2. Although the trial court granted appellant's motion to strike the gang participation count at the close of the evidence, we must evaluate the relevance of the baseball bats and BB gun by examining whether they had any logical tendency to establish a fact pertaining to either the gang participation count or the aggravated...