Whittaker v. Com.

• Decision Date: 22 April 1977
• Docket Number: No. 760800,760800
• Citation: 217 Va. 966,234 S.E.2d 79
• Court: Virginia Supreme Court
• Parties: Douglas McArthur WHITTAKER v. COMMONWEALTH of Virginia. Record

Page 79

234 S.E.2d 79

217 Va. 966

Douglas McArthur WHITTAKER v. COMMONWEALTH of Virginia.

Record No. 760800.

Supreme Court of Virginia.

April 22, 1977.

C. Willard Norwood, Richmond (Norwood & Norwood, Richmond, on brief), for plaintiff in error.

K. Marshall Cook, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

Convicted by a jury of breaking and entering a dwelling and stealing several antique items, Douglas McArthur Whittaker was sentenced by final order entered February 27, 1976 to confinement in the penitentiary for five years.

Although the owner, Theodore D. Lewis, identified some of the articles seized under warrant from Whittaker's home as his property, he conceded that none was a "one time manufacture piece". Other testimony indicated that "thousands" of such items had been manufactured.

The only witness whose testimony directly implicated Whittaker as one of the criminal agents was Hilton Wayne Holt, an inmate in a correctional institution. Holt testified that Whittaker and another man had told him that they had broken into a home in the county and had described the property they had stolen. The description matched that of some of the articles stolen from the Lewis home and that of some of the articles seized in the search. On cross-examination, Holt admitted that he had been convicted of one burglary in Lancaster County and of "five or six" burglaries in other counties. Defense counsel then asked, "And on those five or six convictions how much time are you serving altogether?" Interposing, the trial judge said, "I don't know that that's material to this case. . . ." Defense counsel announced that he "would like to get it in the record", and the judge recessed the jury. Defense counsel then stated:

"I would like to show a motivation for this man testifying against Whittaker in that on all his other convictions he has been required to serve one year in the penitentiary or one year incarceration, and that upon that the Commonwealth attorney has extended leniency in cases for agreeing to testify."

The trial court ruled that the testimony sought was immaterial and Holt was not permitted to answer the question. We granted a writ of error limited to consideration of this ruling.

In support of the ruling, the Commonwealth cites Hummel v. Commonwealth, 217 Va. 548, 550, 231 S.E.2d 216, 217 (1977), where we held that "the triers of fact were entitled to know the number and nature of the felony convictions of the (prosecution) witness Terry, but not the details thereof. . . ." Hummel is inapposite. There, the defendant's purpose in eliciting the testimony was to discredit the character of the prosecution witness and call his veracity into question; for such purpose, the "details" of the felonies would have been immaterial. Here, Whittaker's purpose was to lay the predicate for an inference that the testimony of the prosecution witness was biased and unreliable because induced by considerations of self-interest; for such purpose, the quantum of the sentence imposed upon Holt's several convictions was highly relevant.

The right of an accused to cross-examine prosecution witnesses to show their bias or motivation, "when not abused, is an absolute right", one "preserved to the accused by the constitutional guarantee of confrontation." Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961); accord, Snyder v. Coiner, 510 F.2d 224 (4th Cir. 1975).

In Woody v. Commonwealth, 214 Va. 296, 299, 199 S.E.2d 529, 531-32 (1973), we held:

"With evidence of the other crimes (committed by prosecution witnesses) as a foundation, (defendant's) counsel would then be entitled to question (those witnesses) as to any hope for leniency or expectation of favorable consideration, whether based on agreements or otherwise, . . . that may have prompted them to testify against (defendant)."

See also Davis v. Commonwealth, 215 Va. 816, 822, 213 S.E.2d 785, 789 (1975).

Just as a defendant is entitled to show that testimony of a prosecution witness was motivated by an expectation of leniency in a future trial, a defendant is entitled to prove facts that would support an inference that such testimony was motivated by a bargain for leniency granted in a previous trial.

The Commonwealth urges us not to consider the error assigned because, it is said, defense cou...