Travis Joe McLean v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia
TRAVIS JOE McLEAN
OPINION BY
v. 	Record No. 0145-99-4 	JUDGE LARRY G. ELDER
APRIL 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
David B. Hargett (Joseph D. Morrissey;
Morrissey & Hershner, PLC, on brief), for
appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Travis Joe McLean (appellant) appeals from his jury trial
convictions for two counts each of attempted capital murder,
attempted robbery, and use of a firearm in the commission of a
felony. 	On appeal, he contends the trial court committed
reversible error by admitting, in the guilt phase of the trial,
(1) evidence that one of the Commonwealth's witnesses felt
intimidated when approached by appellant's father and (2) a
letter written by that same witness on the theory that it was a
prior consistent statement admissible following appellant's
attempt to impeach him. 	We hold, as the Commonwealth concedes,
that the trial court erred in admitting evidence that the

witness felt intimidated, but we hold that error was harmless
under the facts of this case.
We also hold that appellant sufficiently preserved his
objection to admission of the witness' letter as a prior
consistent statement but that the admission was not error.
Therefore, we affirm appellant's convictions.
I.
FACTS
THE OFFENSE
At about 8:00 p.m. on December 19, 1997, victims Robert
Umholtz and Robert Webb were standing between Umholtz's
residence and a nearby swimming pool parking lot. 	A man
matching appellant's general description approached Umholtz and
Webb from the direction of the pool, pointed a revolver at them
and demanded their wallets. 	When they refused and turned to
walk away, the assailant shot them both. 	Umholtz was struck
once in the leg. 	Webb was struck once in the back, and when he
turned to again face the assailant, he was struck two more
times, in his upper right chest and lower left hip or groin
area. 	The assailant turned and walked briskly back toward the
pool in the direction of Old Bridge Road. 	The victims' wounds
were not fatal, but neither man was able to make a positive
identification of the assailant.
Two other witnesses, Terrence Tyrone Alexander and Calvin
Jackson, testified that they were driving around with appellant
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on the evening of December 19, 1997, and they gave similar
testimony about the events of that evening. 	Appellant was
driving. 	Also in the car with appellant, Alexander and Jackson
was appellant's brother, Lamar. 	They "ended up going to Old
Bridge . . . where [appellant and his brother, Lamar,] used to
live." 	After visiting a friend of appellant's and Lamar's,
appellant drove into a nearby townhouse development and pulled
into a parking space near the swimming pool adjacent to
Umholtz's house. 	Appellant told the other occupants of the car
"that he would be right back," and he walked off in the
direction of the swimming pool. 	Lamar, who was in a hurry to
finish an errand, moved into the driver's seat to await
appellant's return. 	Although the subject was not discussed,
Alexander assumed appellant was stopping to visit another
friend.
Within thirty to forty-five seconds, Alexander and Jackson
heard three or four gunshots, and shortly thereafter, appellant
ran back to the driver's side of the car. 	Upon seeing his
brother in the driver's seat, appellant went to the passenger's
side and got in. 	When everyone asked what happened, appellant
said "he tried to rob two men, and they refused by saying that
they wouldn't give him the money -- they wouldn't give him the
money if they had it. 	So he shot them." 	Jackson became very
upset, cursing and yelling at appellant, and appellant said "he
was sorry, that he didn't mean to do it. 	He should have did it
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by himself. 	He put us in a bad position. 	We have all got kids.
He was frustrated." 	Appellant's brother then backed out of the
parking space and left the area. 	As they pulled out, Alexander
saw a person lying on the ground in the area from which the
gunshots had come.
Lamar then completed his errand, and the men stopped to
purchase beer and went home. 	Shortly thereafter, Alexander and
Jackson walked to the nearby home of friend Winston Griffith,
where appellant eventually arrived, as well. 	Appellant still
had the gun with him. 	He asked Griffith if he had a bag that
appellant could put the shells in and said he wanted to flush
them down the toilet. 	Griffith became irate and told him to
leave.
Howard Latrell, appellant's cellmate following his arrest
for these offenses, testified appellant admitted committing the
attempted robberies and shootings. 	Latrell's testimony was
consistent with Alexander's and Jackson's testimony about how
the events occurred, what vehicle appellant was driving, and
what appellant reported he said and did afterward.
REHABILITATION OF ALEXANDER WITH PRIOR CONSISTENT STATEMENT
Counsel for appellant cross-examined Alexander about the
statements appellant made when he got back into the car
immediately after the shooting:
[APPELLANT'S COUNSEL]: 	. . . [Y]ou
indicated in responding to [the prosecutor],
I believe, that [appellant] made a statement
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when he got back into the car and you were
all in the car, that he said he should have
done it alone. 	Is that your statement here
today?
[ALEXANDER]: 	Yeah, I mean --
[APPELLANT'S COUNSEL]: 	All right. 	Now,
again, directing your attention to your
previous testimony at the preliminary
hearing. 	Didn't you say . . . in answer to
the question, "Did [appellant] say anything
about that as he did it?" 	And you responded
in part, "He said -- he kept telling us he
was sorry, that he didn't really intend to
do it."
[ALEXANDER]: 	That's what he said.
On re-direct examination, the Commonwealth sought to
clarify Alexander's testimony regarding what appellant said
about the shooting immediately afterward:
[PROSECUTOR]: 	Now, [appellant's counsel]
also asked you about what [appellant] said
to you about he was sorry and whether he
shouldn't have done it.
I'd like for the ladies and gentlemen
of the jury to hear your complete answer in
response to that. 	You see the question to
you, "Did [appellant] say anything about
that as he did it?"
Will you read your full answer please.
[ALEXANDER]: 	"He said -- he kept telling us
he was sorry, that he didn't intend to do
it. 	Calvin basically was really upset at
him, saying he wanted to beat him up and
stuff of that sort. 	And [appellant] told
him, you know, go ahead and do it. 	He
didn't mean to do it. 	He was sorry. 	He had
put us in a bad situation, he was sorry he
had put us in that position."
* 	* 	* 	* 	* 	* 	*
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[PROSECUTOR]: 	And the next question was,
"[Appellant] said he was sorry he put who in
that position?" 	Your response?
[ALEXANDER]: 	"Put the three of us that were
in the car with him."
[PROSECUTOR]: 	Your testimony today was that
he said he should have done it on his own?
[ALEXANDER]: 	(Nodding head.)
Also on re-direct, the prosecutor attempted to introduce
into evidence a letter that Alexander wrote to his mother on
January 12 or 13, 1998, shortly before he was contacted by and
spoke to police about the events of December 19, 1997. 	The
police noticed the letter when they arrived to interview him,
and they asked him to sign and date it. 	Counsel for appellant
objected to admission of the letter as follows:
[I]t exceeds the scope of the cross
examination. . . . [M]y recollection is that
there was no cross examination regarding
statements that this witness made to the
police. 	And I gather the theory for trying
to get around my objection is that he is
trying to address the issue of an
inconsistent statement. 	And there was
questions and answers upon cross examination
relating to a possible prior inconsistent
statement, but it wasn't in this area at
all.
The prosecutor responded that the statement was admissible as a
prior consistent statement to rebut appellant's "attempts" to
impeach Alexander with prior, purportedly inconsistent
statements. 	"There are three specific incidences that I alluded
to in my redirect already, specifically about the time about
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when and where he saw the gun, any cartridge or cartridge
casings, and what [appellant] had to say about all that."
(Emphasis added). 	He also argued that the statements were made
at a time when Alexander had no motive to fabricate. 	The court
admitted the letter, and Alexander read it into the record
without further substantive objection from appellant. 	Appellant
did not ask to have any portions of the letter redacted and did
not request a limiting instruction to prevent the jury from
considering the statements contained in the letter as
substantive evidence.
The letter corroborated Alexander's testimony about
appellant's statements following the shooting, reporting that
appellant admitted the shootings and said, "'I should not have
done this. 	I should have done this on my own. 	I shouldn't have
done this with [Jackson] and [Alexander]. . . . 	Ya'll got kids
and stuff.'"
EVIDENCE OF ALLEGED WITNESS INTIMIDATION
Alexander testified that, both before and after the
shooting, he worked alone on the night shift at a local gas
station. 	Appellant never visited Alexander at the gas station
before the shooting, but after December 19, appellant and his
girlfriend routinely came to the gas station while Alexander was
working and would stay "for a long time[,] . . . into the wee
hours in the morning." 	On a couple of those occasions,
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Alexander and appellant talked about the shooting and how
appellant had obtained and disposed of the weapon.
In response to questioning by the Commonwealth about
whether any of appellant's family members came to the gas
station while Alexander worked the late shift, Alexander
testified that appellant's father came by once. 	When Alexander
started to testify about what appellant's father said, counsel
for appellant objected on hearsay grounds. 	The Commonwealth
then proceeded to ask how Alexander felt when appellant's father
came by the gas station late at night. 	The following exchange
took place, presumably in the presence of the jury:
[APPELLANT'S COUNSEL]: 	I would object to
the relevance. 	This isn't probative of any
pertinent issue in the case. 	I would object
on the grounds of relevancy.
THE COURT: 	Do you wish to respond,
[prosecutor]?
[PROSECUTOR]: 	Well, Your Honor, I think
that there's already evidence before the
Court of concealing evidence in the case.
And certainly that shows a consciousness of
guilt. 	I would suggest to the Court that if
anyone else made any attempts at
intimidation of the witnesses, that would
likewise show a consciousness of guilt.
That would be the purpose for the --
THE COURT: 	I'll allow the question. 	Go
ahead.
The Commonwealth again asked Alexander how the visit by
appellant's father made him feel. 	Alexander answered, "Pretty
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much intimidated. 	I mean, you know, when somebody --." 	The
prosecutor cut him off before he completed his sentence.
On re-direct examination, Alexander testified that he and
his family had known appellant for years and were on good terms
with him and that appellant spent a lot of time with Alexander's
young son. 	Alexander testified that he was reluctant to come
forward with what he knew about the shooting out of fear for the
safety of his family and son:
[I]f something were to make [appellant] even
think that somebody had said something, I
stayed right down the street from him, you
know. 	I work a lot. 	I don't want to go as
far as to say he would have harmed my family
or something like that. 	But after he did
what he did, anything could happen, you
know. 	That's how I'm looking at it.
Anything could happen.
The prosecutor made no direct reference in his closing
argument to the evidence regarding appellant's father's
allegedly intimidating visit to his place of employment. 	His
only indirect reference was in explaining why Alexander may not
have come forward voluntarily:
It's certainly not hard to consider
what it must be like to have information of
heinous crimes like these having been
perpetrated by someone that you know,
someone that you've hung out with, someone
that you may have known from the
neighborhood for a long time, someone that
you may have some fear of.
The jury was instructed on attempted capital murder and
attempted second degree murder, attempted robbery, and use of a
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firearm in an attempted murder. 	The jury convicted appellant of
two counts of attempted capital murder and two counts each of
the attempted robbery and firearm offenses.
II.
ANALYSIS
A.
ADMISSIBILITY OF INTIMIDATION EVIDENCE
Appellant contends the trial court erroneously admitted
evidence that Terrence Alexander, a Commonwealth's witness, felt
"intimidated" when appellant's father visited him late one night
at the gas station at which he worked alone. 	The Commonwealth
concedes on brief that the admission of this evidence was error.
We agree.
"Evidence that a person charged with a crime procured, or
attempted to procure, the absence of a witness, or to bribe or
suppress testimony against him, is admissible, as it tends to
show the unrighteousness of the defendant's cause of action and
a consciousness of guilt." 	McMillan v. Commonwealth, 188 Va.
429, 432-33, 50 S.E.2d 428, 430 (1948); see Ragland v.
Commonwealth, 16 Va. App. 913, 920, 434 S.E.2d 675, 679 (1993).
In contrast, "[e]vidence of [witness] tampering by a third party
. . . is only admissible where such third party is acting with
the authority, or the knowledge and consent, of the accused.
The privity of the accused to such conduct must be proven before
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such evidence is admissible." 	McMillan, 188 Va. at 433, 50
S.E.2d at 430 (emphasis added).
Here, no evidence proved that appellant was responsible for
or aware of his father's presence at Alexander's workplace;
therefore, the Commonwealth failed to prove an essential
predicate that would allow the jury to infer a consciousness of
guilt. 	Further, the only evidence in the record is that
Alexander felt threatened. 	The record contains no indication of
what appellant's father said or did, other than being present,
which Alexander may have found intimidating. 	Therefore, the
trial court erred in admitting this evidence.
The Commonwealth nevertheless contends that the erroneous
admission of this evidence was harmless because it was not
linked directly to appellant, because other evidence clearly
showed appellant's consciousness of guilt, and because the
evidence of appellant's guilt as a whole was overwhelming. 	We
agree.
In Virginia, non-constitutional error is
harmless "[w]hen it plainly appears from the
record and the evidence given at the trial
that the parties have had a fair trial on
the merits and substantial justice has been
reached." 	Code § 8.01-678 (emphasis added).
"[A] fair trial on the merits and
substantial justice" are not achieved if an
error at trial has affected the verdict.
Consequently, under Code § 8.01-678, a
criminal conviction must be reversed unless
"it plainly appears from the record and the
evidence given at the trial that" the error
did not affect the verdict. 	An error does
not affect a verdict if a reviewing court
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can conclude, without usurping the jury's
fact finding function, that, had the error
not occurred, the verdict would have been
the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc).
An error is harmless (1) if "other evidence of guilt is 'so
overwhelming and the error so insignificant by comparison that
the error could not have affected the verdict,'" or, "even if
the evidence of the defendant's guilt is not overwhelming, [(2)]
if the evidence admitted in error was merely cumulative of
other, undisputed evidence." 	Ferguson v. Commonwealth, 16 Va.
App. 9, 12, 427 S.E.2d 442, 444-45 (1993) (quoting Hooker v.
Commonwealth, 14 Va. App. 454, 458 n.2, 418 S.E.2d 343, 345 n.2
(1992)).
Both theories establish the harmlessness of the error in
appellant's case. 	First, the only testimony or argument on this
issue was Alexander's testimony that he felt intimidated when
appellant's father visited his place of work late one night when
Alexander was working alone. 	The factors which rendered the
evidence inadmissible also limit its potential for harm because
no evidence established that appellant had anything to do with
his father's visit, the prosecutor made no such argument, and
other evidence established appellant's consciousness of guilt.
Evidence to which appellant posed no objection established that
Alexander had significant contact with appellant after the
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shooting and told appellant how his girlfriend disposed of the
gun used to commit the crimes. 	After the shooting, appellant
and his girlfriend, who never visited Alexander at work before
the shooting, came to the gas station routinely and stayed for
long periods of time. 	Although Alexander did not testify that
appellant had threatened him, he explained that appellant lived
close to Alexander's family and young son and had significant
contact with them and that Alexander was afraid of what
appellant might have been capable of doing to them if he became
angry with Alexander for talking to the authorities. 	This
evidence significantly diminished the harmfulness of the
testimony about appellant's father.
Second, the evidence of appellant's guilt on the charged
offenses was overwhelming. 	Alexander and Jackson, who were
traveling with appellant on the night of the shootings,
testified that they heard the gunshots in the area where the
victims said they were shot and that appellant confessed the
shootings to Alexander and Jackson when he ran back to the car.
Both men saw the weapon in appellant's possession, and Alexander
saw one of the victims lying on the ground as the car in which
they were traveling left the area. 	The version of events
appellant gave to Alexander and Jackson was also consistent with
the victims' testimony. 	Howard Latrell, appellant's cellmate
after his arrest for the charged offenses, testified that
appellant confessed the crimes to him, as well. 	Latrell also
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gave detailed testimony about the offenses, and no evidence in
the record established that Latrell had any source of
information about the crimes other than appellant. 	Latrell's
testimony about the crimes was consistent with the testimony
from Alexander, Jackson and the victims.
Because the erroneously admitted evidence was cumulative of
other undisputed evidence and because the evidence of
appellant's guilt was overwhelming, we hold the error was
harmless.
B.
ADMISSIBILITY OF LETTER AS PRIOR CONSISTENT STATEMENT
The Commonwealth contends that appellant's objection in the
trial court was insufficient under Rule 5A:18 to preserve the
issue he raised on appeal. 	We disagree. 	Upon objecting to the
Commonwealth's motion to admit Alexander's letter to his mother
as a prior consistent statement, appellant argued to the trial
court that "there was [sic] questions and answers upon
cross-examination relating to a possible prior inconsistent
statement, but it wasn't in this area at all. 	So I think I
would ask Your Honor to grant that objection." 	The prosecutor
then detailed the three areas in which appellant had attempted
to impeach Alexander and argued that the letter was admissible
in response to those efforts as a prior consistent statement.
On appeal, appellant asserts that the trial court erred in
admitting the letter because appellant did not offer any prior
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inconsistent statements for impeachment and "merely attempted,"
without success, "to impeach Alexander's testimony." 	He also
asserts that the letter did not fit into any of the exceptions
authorizing admission of prior consistent statements. 	We hold
that appellant's objection in the trial court was sufficiently
broad to preserve for appeal the question whether his
cross-examination of Alexander was sufficiently impeaching to
permit admission of the letter. 	We also hold that the trial
court did not abuse its discretion in admitting the letter into
evidence as a prior consistent statement.
"As a general rule, a prior consistent statement of a
witness is inadmissible hearsay." 	Faison v. Hudson, 243 Va.
397, 404, 417 S.E.2d 305, 309 (1992). 	However, a prior
consistent statement is admissible under certain circumstances,
such as "after a witness's testimony has been attacked by the
admission of a prior inconsistent statement." 	Clere v.
Commonwealth, 212 Va. 472, 473, 184 S.E.2d 820, 821 (1971).
Such evidence also may be admitted when the opposing party
"suggests that the declarant had a motive to falsify his
testimony and the consistent statement was made prior to the
existence of that motive . . . [or] alleges that the declarant's
testimony is a fabrication of recent date and the prior
consistent statement was made at a time when its ultimate effect
could not have been foreseen." 	Mitchell v. Commonwealth, 25 Va.
App. 81, 84-85, 486 S.E.2d 551, 552-53 (1997). 	Under each of
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these circumstances, "the [prior consistent] statement is
offered merely to show that it was made, rather than as proof of
any matter asserted." 	Id. at 85, 486 S.E.2d at 553.
The introduction of a prior consistent statement of a
witness is not admitted merely because the testimony of a second
witness calls the veracity of the first witness into doubt. 	See
Faison, 243 Va. at 405, 417 S.E.2d at 310 (fact that one
witness' testimony about color of traffic light was contradicted
by other witnesses did not constitute type of impeachment
sufficient to permit introduction of that witness' prior
consistent statement); Mitchell, 25 Va. App. at 85, 486 S.E.2d
at 553 (fact that accused gave testimony contrary to that of
victim did not permit Commonwealth to introduce prior consistent
statement of victim). 	As we have recognized, "to allow the
admission of a prior consistent statement after impeachment of
just 'any sort' would create an unreasonably 'loose rule.'"
Faison, 243 Va. at 405, 417 S.E.2d at 310 (quoting Gallion v.
Winfree, 129 Va. 122, 127, 105 S.E. 539, 540 (1921)).
Therefore, a prior consistent statement is admissible only where
the testimony of the witness is impeached by use of a prior
inconsistent statement, the witness is shown to have had a
motive to fabricate, or the witness' testimony is alleged to
have been recently fabricated.
We have not had occasion to consider the precise limits of
the impeachment-by-prior-inconsistent-statement exception, i.e.,
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how inconsistent a prior statement must be before a prior
consistent statement may be admissible to rehabilitate the
witness. 	However, our case law speaks in terms of "attack[s]"
on, see Clere, 212 Va. at 473, 184 S.E.2d at 821, and
"challenge[s]" to, see King v. Commonwealth, 18 Va. App. 57, 59,
441 S.E.2d 704, 705 (1994), the credibility of a witness. 	See
also 1 Charles E. Friend, The Law of Evidence in Virginia § 4-12
(4th ed. 1993) (noting that prior consistent statements are
admissible "when impeachment has been attempted by the
introduction of a prior inconsistent statement" (first emphasis
added)). 	Manifestly, as long as a party confronting a witness
with an allegedly prior inconsistent statement challenges the
credibility of that witness in any significant way, the trial
court need not find that the impeachment was successful--that
the fact finder would have no choice but to reject the testimony
in its entirety--before permitting the introduction of a prior
consistent statement for the purpose of rehabilitating that
witness.
Here, the record establishes that appellant attempted to
show portions of Alexander's trial testimony were inconsistent
with his testimony at the preliminary hearing. 	At trial,
regarding appellant's alleged statements when he returned to the
car after the shooting, Alexander testified on direct
examination that appellant said
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(1) appellant was sorry;
(2) appellant did not mean to do it;
(3) appellant put Alexander and the others
in a bad position; and
(4) appellant should have done it by
himself.
On cross-examination, appellant's counsel re-established
Alexander's testimony on direct that appellant should have done
it by himself, labeled (4) above. 	Counsel then inquired about
Alexander's testimony at the preliminary hearing, establishing
that Alexander testified only that (1) appellant said he was
sorry and (2) he did not intend to do it. 	Thus, appellant's
counsel sought to demonstrate to the jury Alexander testified
originally that appellant said only that he was sorry and did
not intend to do it, permitting the inference that he believed
he should not have done it at all, but later testified that
appellant merely said he should have done it alone. 	In short,
appellant's counsel attempted to impeach Alexander by
establishing that his preliminary hearing testimony was more
favorable to appellant than his trial testimony and that his
trial testimony, therefore, was inaccurate or untruthful.
On re-direct examination, the prosecutor sought to
rehabilitate Alexander by having him read into the record the
entirety of his preliminary hearing testimony on this issue.
That process established that Alexander testified at the
preliminary hearing that appellant said (1) he was sorry, (2) he
did not intend to do it, and (3) he was sorry he put Alexander
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and the other occupants of the car in a bad position. 	Alexander
did not testify at the preliminary hearing that appellant said
(4) he should have done it alone. 	Therefore, the prosecutor's
re-direct examination based on Alexander's preliminary hearing
testimony rehabilitated him only partially, as to statement (3)
above. 	Alexander's letter to his mother, which was written less
than a month after the crimes and prior to the preliminary
hearing, was admissible to establish Alexander's prior
consistent statement that appellant also said (4) he "should
have done this on [his] own." 	Thus, we hold that appellant's
cross-examination of Alexander established an inconsistency
between Alexander's preliminary hearing and trial testimony
which rendered admissible Alexander's prior consistent statement
on (4) above.1
For these reasons, we hold that the admission of the
challenged testimony that Alexander felt intimidated by
appellant's father was harmless error and that the trial court
did not abuse its discretion in admitting Alexander's letter to
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1 We note that appellant objected to the admissibility of
the letter in its entirety as not covering an area upon which
Alexander had made a prior inconsistent statement. 	Appellant
did not request that the letter be redacted to exclude any
particular portions. 	Appellant also did not request a limiting
instruction directing the jury to consider the letter only for
purposes of rehabilitation and not as substantive evidence.
Therefore, we do not consider whether the trial court’s failure
to redact portions of the letter or to give the jury a limiting
instruction may have been error. 	See Rule 5A:18; see also
Williams v. Commonwealth, 11 Va. App. 149, 154, 396 S.E.2d 860,
863 (1990) (limiting instruction).

his mother as a prior consistent statement. 	Therefore, we
affirm appellant's convictions.
Affirmed.
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