Lewis v. Com., Record No. 041390.

• Citation: 608 S.E.2d 907,269 Va. 209
• Decision Date: 03 March 2005
• Docket Number: Record No. 041390.
• Parties: Brandon Lavon LEWIS v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

608 S.E.2d 907
269 Va. 209

Brandon Lavon LEWIS
v.
COMMONWEALTH of Virginia

Record No. 041390.

Supreme Court of Virginia.

March 3, 2005.

608 S.E.2d 908

Charles C. Cosby, Jr. (Boone, Beale, Cosby & Long, on brief), Richmond, for appellant

Susan L. Parrish, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellee.

Present: All the Justices.

BARBARA MILANO KEENAN, Justice.

In this appeal, we consider whether the Court of Appeals erred in approving the circuit court's denial of a defendant's mistrial motion. The defendant alleged in the motion that his right to a fair trial was prejudiced because the prosecutor, in cross-examining a witness, implied that the witness and the defendant had engaged in criminal activity unrelated to the charged offenses.

Brandon Lavon Lewis was indicted by a grand jury on charges including murder in the commission of attempted robbery, use of a firearm while committing murder, and four counts of attempted robbery. A jury convicted Lewis of the attempted robbery charges and acquitted him of the remaining charges. The jury fixed his punishment at five years' imprisonment for each of the four attempted robbery counts. The circuit court sentenced Lewis in accordance with the jury verdict and set the sentences to run consecutively with each other.

Lewis appealed his convictions to the Court of Appeals, which reversed and dismissed one of the attempted robbery convictions and affirmed the remaining convictions. Lewis v. Commonwealth, 43 Va.App. 126, 137, 596 S.E.2d 542, 547 (2004). As relevant to the case before us, the Court of Appeals concluded that the circuit court did not err in refusing to grant a mistrial because the prosecutor's cross-examination of Lewis' alibi witness was proper impeachment and Lewis was not prejudiced. Id. at 133, 596 S.E.2d at 545. Lewis appeals.

We will state the evidence in the light most favorable to the Commonwealth, the prevailing party in the circuit court. Tucker v. Commonwealth, 268 Va. 490, 492, 604 S.E.2d 66, 67 (2004); Murphy v. Commonwealth, 264 Va. 568, 570, 570 S.E.2d 836, 837 (2002). The evidence showed that in August 2002, Luis Felipe Hernandez Sanchez was shot and killed during an attempted armed robbery at his house. Also present were his brother, Reymundo Hernandez Sanchez (Reymundo), and two friends, Fernando Alvarado Vasquez and Reymundo Hernandez Acosta. The three surviving witnesses told the police that the gunman and two companions had entered the house and demanded money from all the occupants. Sanchez was shot and killed by one of the three assailants, who immediately fled from the scene.

After searching the crime scene, the police brought Vasquez, Reymundo, and Acosta back to the police station. All three men identified Tramaine "Stump" Stith from a photographic "lineup" as one of the men who had been in the house. Stith initially denied any participation in the crimes, but later admitted his involvement and identified Lewis and Travis Hester as the other two assailants. The police later questioned Hester, who also admitted his involvement and identified Lewis as a participant in the offenses. Lewis was arrested the next morning.

At trial, Lewis presented an alibi defense. He testified that at the time the murder and attempted robberies took place, he was at his grandmother's house with two friends, El Hajj Jones and Jason Carol. Lewis stated that he, Jones, and Carol left the house and

608 S.E.2d 909

walked down the street to Sanchez's house after they observed flashing lights and ambulances nearby

Jones testified as an alibi witness. On direct examination, he stated that he and Lewis were "good friends" and were "pretty tight." Jones confirmed that he and Lewis were at Lewis' grandmother's house when the crimes allegedly occurred.

On cross-examination, Jones admitted that he had been convicted of distribution of cocaine. The prosecutor then asked Jones, "Is that your connection [to Lewis]?" Defense counsel objected to this last question, stating, "I hope it [does not] mean what I think it means." The circuit court overruled the objection and allowed the prosecutor to proceed with the question. The prosecutor asked again, "Is that the connection with you and him?" Jones replied, "No, it isn't." The prosecutor then repeated, "He's not tied into that with you at all?" Jones responded, "No, he isn't."

Defense counsel renewed his objection on the ground that the prosecutor was attempting to imply that Lewis was involved in a "drug case." The circuit court again overruled the objection, stating that because Jones admitted that he and Lewis were good friends, the prosecutor could inquire about "what they do together." Defense counsel indicated to the court that he intended to make a motion for a mistrial, and the court directed counsel to "argue it later."

At the conclusion of the evidence, defense counsel argued the mistrial motion, asserting that the jury had been tainted by the prosecutor's implication in his cross-examination of Jones that Lewis was involved in illegal drug-related activities. Defense counsel noted that the prosecutor had not introduced evidence regarding a motive for the attempted robberies, and argued that it was improper for the prosecutor to suggest such a motive by questioning Jones about other illegal activities. The circuit court denied Lewis' motion, ruling that the prosecutor's questions legitimately explored the extent of Jones' relationship with Lewis.

Lewis appealed to the Court of Appeals, which held that the circuit court did not err in denying the mistrial motion. 43 Va.App. at 133, 596 S.E.2d at 545. The Court reasoned that the challenged line of inquiry was permissible to show bias. Id. at 132-33, 596 S.E.2d at 545. The Court concluded:

[T]he cross-examination of Jones, based on the relationship between him and appellant, was proper impeachment. Thus, the trial court did not err in failing to sustain appellant's objection to this line of cross-examination or in failing to grant a mistrial. Additionally, as Jones denied that his relationship with appellant was based on the distribution of cocaine, we cannot find as a matter of law that appellant was "indelibly prejudiced."

Id. at 133, 596 S.E.2d at 545 (citation omitted).

On appeal to this Court, Lewis argues that the circuit court erred in denying his mistrial motion. He concedes that the prosecutor was entitled to ask Jones if he had been convicted of a felony, and the nature of any felony conviction, but asserts that it was improper to allow without any foundation questions concerning a connection between Lewis and Jones' illegal activities. Lewis also contends that this line of questioning prejudiced him.

In response, the Commonwealth argues that the prosecutor did not elicit improper evidence because Jones denied that there was any connection between his illegal activities and Lewis. The Commonwealth also contends that because Jones denied any relationship with Lewis other than their personal friendship, Lewis was not prejudiced by the prosecutor's questions and the circuit court properly exercised its discretion in denying the mistrial motion. We disagree with the Commonwealth's arguments.

We review a challenge to a circuit court's denial of a mistrial motion under established principles. The decision whether to grant a mistrial motion is a matter submitted to the circuit court's sound discretion. Lowe v. Cunningham, 268 Va. 268, 272, 601 S.E.2d 628, 630 (2004); Burns v. Commonwealth, 261 Va. 307, 341, 541 S.E.2d 872, 894 (2001); Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607 (1990).

608 S.E.2d 910

In a criminal case, when defense counsel makes a motion for a mistrial based on an allegedly prejudicial remark or question by the prosecutor, the circuit court must make a factual determination whether a defendant's right to a fair trial has been prejudiced, thereby requiring a new trial. Spencer v. Commonwealth,...