Hood v. Commonwealth, Record No. 2469-02-2 (Va. App. 2/17/2004)

• Decision Date: 17 February 2004
• Docket Number: Record No. 2469-02-2.
• Court: Virginia Court of Appeals
• Parties: STEPHEN JAMES HOOD v. COMMONWEALTH OF VIRGINIA.

Page 1

Unpublished Opinion

STEPHEN JAMES HOOD v. COMMONWEALTH OF VIRGINIA.

Record No. 2469-02-2.

In the Court of Appeals of Virginia, Richmond.

February 17, 2004.

Appeal from the Circuit Court of the City of Richmond, Margaret P. Spencer, Judge.

Horace F. Hunter for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: Judges Benton, Elder and Senior Judge Hodges.

MEMORANDUM OPINION^*

JUDGE LARRY G. ELDER.

Stephen James Hood (appellant) appeals from his bench trial conviction for first-degree murder as a principal in the second degree.¹ On appeal, he contends the trial court (1) erroneously permitted the Commonwealth to introduce into evidence a statement he proffered to the government in the course of plea negotiations; and (2) erroneously concluded the evidence was sufficient to support his conviction as a principal in the second degree to first-degree murder. We hold the trial court's admission of appellant's proffer statements was not error and that the evidence supported appellant's murder conviction. Thus, we affirm.

I. BACKGROUND

In the early morning hours of August 31, 1990, an elderly woman named Eloise Cooper was abducted from the apartment she shared with her husband. On the afternoon of August 31, 1990, Mrs. Cooper was found dead in the woods of a nearby park.

An acquaintance of appellant's was convicted for Mrs. Cooper's murder. Later, however, appellant and a man named Billy Madison "[were] developed as [suspects]." In 2001, appellant and his attorney engaged in plea negotiations with the Commonwealth. Prior to doing so, appellant and the Commonwealth entered into an agreement promising appellant immunity from prosecution if he cooperated with the government and complied with various other terms contained in the agreement.

Pursuant to that agreement, appellant admitted he and Madison were acquaintances and that they engaged in several drug transactions with Roberto Steadman in the summer of 1990. Appellant said that on the night the victim was killed, Madison was searching for Steadman in order to retaliate against him for Steadman's taking their money without providing them with marijuana. Appellant admitted he was present when Madison abducted the victim at knifepoint and that he drove Madison and the victim to a secluded spot where Madison beat the victim and left her behind.

No plea agreement was reached, and appellant was scheduled to be tried for first-degree murder of the victim. The prosecutor confirmed that appellant's statements "can't be used in the Commonwealth's case in chief" but noted the agreement would not prevent any other use of the statements.

At trial, the prosecutor argued appellant presented evidence that breached the terms of the agreement and offered appellant's statements into evidence. The trial court admitted the statements and convicted appellant for first-degree murder.

II. ANALYSIS

A.

ADMISSION OF STATEMENTS COMPRISING APPELLANT'S PROFFER

[P]rosecutors may enter into cooperation/immunity agreements whereby the government promises an individual immunity from prosecution, or from use of, and/or derivative use of, statements the witness makes to the government. These agreements are usually made in consideration for the individual's cooperation in providing information concerning criminal activity.

. . . Such agreements are contractual in nature and, thus, are subject to principles of contract law. . . . [C]ooperation/immunity agreements [also] are subject to due process safeguards which require that the government strictly adhere to the terms of its agreement.

Commonwealth v. Sluss, 14 Va. App. 601, 604, 419 S.E.2d 263, 265 (1992) (citations omitted). The Commonwealth "[bears] the `"burden of establishing a breach by the defendant [of the cooperation/immunity agreement] if the agreement is to be considered unenforceable."' In fact, if [appellant] did not breach the cooperation/immunity agreement, due process requires that the government provide [him] with the benefit of his bargain." Id. at 606, 419 S.E.2d at 266 (quoting United States v. Johnson, 861 F.2d 510, 513 (8th Cir. 1988) (quoting United States v. Brown, 801 F.2d 352, 355 (8th Cir. 1986))). Under the facts of this case, determining whether appellant has breached the agreement requires us to examine the evidence introduced at trial and to "construe the contract, which [we are] as well positioned to do as the trial court [was]." Id.

Here, the relevant portion of the cooperation/immunity agreement provided that if appellant "at any time offers testimony or presents evidence different from any statement made or other information provided during the proffer, the Commonwealth . . . may use any statements provided by [appellant], or any information[] derived directly or indirectly from these statements[,] for impeachment, cross-examination and rebuttal." "Introduction of the statements thus was proper if either [appellant's] testimony or evidence that he presented through the testimony of others contradicted the proffer. Because [appellant] did not testify, only the second clause is at issue. . . . Evidence is evidence, whether it comes out on direct or cross-examination." United States v. Krilich, 159 F.3d 1020, 1025 (7th Cir. 1998) (citations omitted) (evaluating more broadly worded agreement, allowing introduction of proffer statements if accused "testif[ied] contrary to the substance of the proffer or otherwise presented a position inconsistent with the proffer," which the court interpreted to include not only evidence offered through witnesses other than the accused but also "a position [developed] through arguments of counsel").

An immunity/cooperation agreement such as this one strives to achieve dual goals— giving the person making the statement "an incentive to tell the truth" while providing "assurance that [the accused can still] defend himself at trial if the bargaining collapse[s]." Id. Such an agreement does not require an accused to remain "passiv[e] at trial" or prevent him from offering any defense at all. Id. He remains "free to challenge the sufficiency of the [Commonwealth's] evidence; call into question the credibility of the [Commonwealth's] witnesses; question [Commonwealth's] witnesses about their knowledge and qualifications; challenge inconsistencies in the [Commonwealth's] evidence; and ask [Commonwealth's] witnesses about their motives for testifying against [him]," United States v. Rebbe, 314 F.2d 402, 408 (9th Cir. 2002), as long as the specific method he chooses to effect any such challenge is not "`contrary to' or `inconsistent with' a defendant's admission of guilt in a bargaining proffer," Krilich, 159 F.3d at 1025.

In order to achieve the joint goals of an immunity/cooperation agreement, a "judge must find genuine inconsistency before allowing use of the [defendant's proffer] statements. . . . Statements are inconsistent only if the truth of one implies the falsity of the other." Id. at 1025-26. However, the inconsistency in testimony required for admission of a proffer statement need not be as directly contradictory as a defendant's saying in his proffer, "`X is true,'" and later offering evidence that "`X is not true.'" United States v. Jasin, 215 F. Supp. 552, 589 (E.D. Pa. 2002) (deciding whether proffer statement was "materially different" from evidence offered at trial, which phrase parties conceded was equivalent to phrase "inconsistent statement" in Fed. R. Evid. 613(b) and 801(d)(1)(A)). Testimony not directly contradictory may lead to inferences that "properly open[] the door to use of a proffer statement because the grounds or bases underlying the two assertions are inconsistent." Id. at 590 n.30 (citing Krilich, 159 F.3d at 1024-26).

The United States Court of Appeals for the Seventh Circuit applied these principles in Krilich, in which the defendant was accused of faking a hole-in-one during a golf tournament in order to bribe a local political leader. 159 F.3d at 1024. The defendant participated in plea negotiations, entering into an agreement that his proffer statements would be admissible if he "testif[ied] contrary to the substance of the proffer or otherwise present[ed] a position inconsistent with the proffer." Id. at 1024-25. During the proffer, the defendant admitted faking the hole-in-one. Id. at 1025. However, the defendant offered evidence, inter alia, that the hole at issue was "close to the clubhouse and easily observed." Id. at 1026. The court concluded the defendant "wanted the jury to infer that no one would attempt to fake a hole-in-one there," an implication it held was inconsistent with the proffer. Id. The Court held the trial court could reasonably have concluded this evidence "[went] well beyond casting doubt on the prosecutor's evidence" and "advance[d] a position inconsistent with the proffer," thereby justifying admission of the defendant's statements made in the proffer. Id.; see also Jasin, 215 F. Supp. at 591-92 (holding that where defendant was charged with illegal export activities, claimed he acted in good faith by relying on representations of another individual who claimed "`Washington approval'" for export activities, and testified, "`I believed [the individual's claim], why wouldn't I believe it?,'" government was entitled to admit proffer statements indicating defendant's knowledge of other fraud and wrongdoing by individual).

Here, appellant, in his proffer statements, said Madison sought to retaliate against Steadman for stealing from them during a drug deal. Appellant admitted he was present when Madison, unable to locate Steadman, pushed the victim into the backseat of the car appellant was driving, climbed in on top of her as she cried and screamed for help, and subsequently murdered her when appellant found a secluded area in a nearby park.

At trial, appellant elicited testimony from Officer Steven Travis about his investigation...