Lewis v. Com.

• Decision Date: 17 June 1983
• Docket Number: No. 820829,820829
• Citation: 225 Va. 497,303 S.E.2d 890
• Court: Virginia Supreme Court
• Parties: Thomas M. LEWIS v. COMMONWEALTH of Virginia. Record

Page 890

303 S.E.2d 890

225 Va. 497

Thomas M. LEWIS v. COMMONWEALTH of Virginia.

Record No. 820829.

Supreme Court of Virginia.

June 17, 1983.

Murray J. Janus, Richmond (Fred A. Talbot, Theodore I. Brenner, Bremner, Baber & Janus, Richmond, on brief), for appellant.

Donald R. Curry, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., COCHRAN, POFF, STEPHENSON and RUSSELL, JJ., and HARRISON, Retired Justice ^*.

POFF, Justice.

A jury convicted Thomas M. Lewis of grand larceny by receiving stolen goods and, confirming the verdict, the trial court imposed a sentence of 12 months in jail and a fine of $1,000.

Called as a witness by the Commonwealth, Cornelius Williams testified that he and Peter Lawson planned to burglarize the Virginia Gold and Silver Company, a concern owned by John Greer. Lawson declined to participate personally but introduced Williams to James Sweeden. During the early morning hours of Saturday, December 20, 1980, Williams and Sweeden broke and entered Greer's establishment and stole several sacks of silver coins and an undetermined quantity of gold and diamond rings, gold chains, and cash, all of which they delivered to Lawson.

Lawson and Sweeden were fellow employees of Standard Furniture, a retail furniture business operated by defendant Lewis. Lewis was also engaged in the gold and silver market, doing business as Standard Distributors. A few hours following the burglary, Lawson took the coins to Standard Distributors, and Lewis paid him $14,221 in cash. Lawson then gave Sweeden $2,000, the prearranged fee for his services as lookout, and divided the rest of the cash with Williams. That afternoon, Lawson sold Lewis some of the stolen rings and, on Sunday morning, most of the other jewelry. The three cash sales during the two-day period amounted to more than $20,000.

Lawson testified that when he made the Sunday sale, Lewis told him that "John Greer [had] called him and described the merchandise, that he knows that's where it came from." Lewis also told Lawson that "I know you didn't steal it, but we're as guilty as the ones that did because we bought it.... I'll cover it up now, I have no other choice, but we're as guilty as the ones that took it."

Over defendant's objection, Lawson was permitted to describe the details of two earlier sales he had made to Lewis. In October 1980, Lawson sold defendant several items of jewelry which he had acquired from Williams. Lawson admitted he "knew it was stolen because ... it was brand new, it had price tag strings still on it. And the stones were removed." When one of Lewis' employees commented on these facts, Lewis told him, "Shut up and go ahead and pay the man." A few days later, Lawson sold Lewis seven "men's rings with no stones in them, and they were obviously new, there were no scratches or anything on them". Lewis' clerk observed that he would "hate to have his fingerprints on those", and Lewis remarked, "We don't need to comment, just go ahead and pay the man."

Testifying in his own defense, Lewis admitted that he had often bought precious metals from Lawson, "probably four days a week at least"; that he knew Lawson did not have a dealer's license; and that he knew the transactions were "improper". He explained that he did so because "I extend certain courtesies to my employees". Lewis denied purchasing jewelry with price tag strings attached or any other property which appeared to be stolen. The largest purchase he had made from Lawson prior to December 20, 1980, was "[a]bout $3,000", and Lewis acknowledged that the coin sale "was a rather large amount for [Lawson]" and that the size of the three sales in the two-day period "was unusual". Lewis admitted that he was sufficiently suspicious about the coins to inquire if they were "hot", but when Lawson assured him that they had not been stolen, he paid him "the fair market" price. Lewis said that Greer had told him about the "break-in" in a telephone call "sometime in the afternoon" on Saturday, but Lewis testified that nothing Greer had said enabled him to recognize the items purchased from Lawson as property stolen from Greer's store. Lewis denied that he had told Lawson about the telephone call.

Sometime after the Sunday sale, Lawson was arrested in Florida on an extradition warrant. He called Lewis and asked for money to hire an attorney to "fight extradition". Lewis loaned him money for that purpose and, after Lawson was extradited, posted his bail bond, loaned him money to buy a car, and placed him back on his payroll. Lewis explained that he had done similar favors for other employees, including Sweeden.

The defense called Arthur Wilkinson, a coin shop operator, as a witness. Wilkinson testified that he was acquainted with defendant and other dealers in the precious metals market; that it was customary practice in the business to conduct transactions in cash; and that defendant enjoyed a good reputation for truth and veracity. On cross-examination, the Commonwealth inquired whether he knew "Rocky" Ward, another coin shop operator, and, if so, whether Ward was employed by "International Gold and Silver". Wilkinson testified that he "knew him socially" and as a business competitor but did not know his employment status. The Commonwealth then asked whether Wilkinson had been "involved as a witness against Mr. Ward's conspiracy to murder you", and Wilkinson said that he had. Defendant objected to the question and answer as irrelevant, inflammatory, and prejudicial and moved for a mistrial. The trial court denied the motion and admitted the testimony.

On appeal, defendant challenges this ruling, and we agree that it constitutes reversible error. The Attorney General argues that "the prosecution was ... entitled to elicit this testimony to impeach Wilkinson's veracity." He reasons that the jury, given proof that the character witness "had been dishonest in his initial testimony concerning the extent of his knowledge of Ward," could properly infer that he "had been dishonest in his testimony concerning the defendant's reputation."

We reject that argument. We find nothing in Wilkinson's testimony to support the inference the Attorney General urges. The witness answered the prefatory questions responsively. The fact that he did not volunteer a more expansive explanation of the extent of his knowledge of Ward does not prove that those answers were dishonest or that his...