Mayes Wilson Tate, Jr. v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
MAYS WILSON TATE, JR.
MEMORANDUM OPINION* BY
v. 	Record No. 3017-97-2 	JUDGE JERE M. H. WILLIS, JR.
MARCH 30, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
Timothy J. Hauler, Judge
Michael J. Brickhill (Michael J. Brickhill,
P.C., on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
On appeal from his conviction for three counts of
second-degree murder, in violation of Code § 18.2-32; one count
of breaking and entering, in violation of Code § 18.2-91; and
one count of grand larceny, in violation of Code § 18.2-95, Mays
Wilson Tate, Jr., contends that the trial court erred in
striking his testimony. 	We disagree and affirm the judgment of
the trial court.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences deducible therefrom." 	Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).

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On May 31, 1992, police were called to the home of Roberta
Stinson, where they found the bodies of Clarence Stinson, Gloria
Stinson, and Roberta Stinson, all three of whom had been shot to
death. 	Tate, Clarence Stinson's grandson by marriage, was
arrested and charged with the murders. 	Tate's first trial
resulted in a conviction, which was reversed on appeal. 	His
first retrial resulted in a mistrial. 	The present appeal arises
out of his second retrial. 	Upon motion in limine, the trial
court ruled that in the presentation of evidence, no mention
should be made of the prior two trials.
At trial, Tate elected to testify. 	Before allowing him to
take the stand, the trial court informed him that by testifying,
he would subject himself to cross-examination by the
Commonwealth's Attorney. 	Tate acknowledged that he understood
this. 	He proceeded to testify that he was innocent, that he had
twice before been put on trial, and that this third trial was
simply harassment on the part of the Commonwealth.
Upon concluding his direct testimony, Tate stated that he
would testify no further. 	Being told by his attorney that the
Commonwealth's Attorney would cross-examine him, Tate replied
that the Commonwealth's Attorney could "cross-examine all he
wants." 	The trial court asked the Commonwealth's Attorney
whether he wished to cross-examine Tate. 	The Commonwealth's
Attorney replied that he would like a few minutes to think about

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it and then added that he "might not need . . . to ask" Tate any
questions. 	The trial court sent the jury from the courtroom and
took a recess.
During the recess, the trial court warned Tate repeatedly
that it would strike his testimony if he refused to submit to
cross-examination. 	It directed defense counsel to advise Tate
of this consequence of his refusal. 	The following dialogue took
place:
THE COURT: 	. . . Mr. Snook, I would ask
that you talk to your client about the
Commonwealth's right of cross examination.
. . . 	If Mr. Tate refuses cross examination
his testimony may be stricken from the
record.
* 	* 	* 	* 	* 	* 	*
THE COURT: 	First of all, I have to advise
you of the fact that by taking the witness
stand that you have given up your Fifth
Amendment rights against self-incrimination
and that the law does require that you
answer questions upon cross examination by
the Attorney for the Commonwealth. 	And I've
got to ask you on the record, will you, in
fact, submit yourself to cross examination
by the Attorney for the Commonwealth?
DEFENDANT: 	No.
THE COURT: 	All right sir.
If you refuse to do that then as
the trial judge I will be duty bound upon
motion be the Attorney for the Commonwealth
to advise the jury that your testimony that
has been given on the stand today would not
be properly considered by them as evidence
in this case. 	I would be required to tell
them that they must disregard all elements

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of your testimony and that they may not
consider any aspect of your testimony with
regard to any issue that's put before them
for a decision. 	Do you understand that?
DEFENDANT: 	Yeah.
* 	* 	* 	* 	* 	* 	*
THE COURT: 	May I then ask you again, will
you consent to cross examination by the
Attorney for the Commonwealth?
DEFENDANT: 	No.
THE COURT: 	[to counsel] . . . Would you
please advise him again of the ramifications
of striking his evidence from this trial.
. . . [B]ut I would like at least to afford
you the opportunity to explain that to him
one last time. . . .
* 	* 	* 	* 	* 	* 	*
THE COURT: 	All right.
Mr. Tate, may I ask you again,
will you consent to cross examination by the
Attorney for the Commonwealth?
DEFENDANT: 	No.
THE COURT: 	You will not.
And do you fully understand,
sir, that I . . . will be required to advise
the jury to disregard all testimony that you
have given in this case?
DEFENDANT: 	Yes.
Tate persisted in his refusal to submit to
cross-examination and refused to resume the witness stand. 	The
trial court denied the Commonwealth's motion for a mistrial and
its motion to find Tate in contempt for violating the rule in

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limine. 	On its own motion, the trial court struck Tate's
testimony, without permitting the parties to state objections
and noted the parties' exceptions to its rulings. 	It reconvened
the trial and instructed the jury to disregard Tate's testimony.
The Commonwealth first argues that by failing to state a
specific objection to the trial court's ruling striking his
testimony, Tate failed to preserve that issue for appeal. 	See
Rule 5A:18. 	However, by ruling on its own motion and noting
counsel's exception without affording counsel the opportunity to
specify an objection, the trial court itself satisfied the
requirement of Rule 5A:18 and preserved the issue for appeal.
The purpose of Rule 5A:18 is to insure that the trial court is
aware of the parties' positions and that it not be led
unadvisedly into error. 	See Martin v. Commonwealth, 13 Va. App.
524, 530, 414 S.E.2d 401, 404 (1992). 	By noting the exception
of counsel without affording counsel the opportunity to state
their grounds for objection, the trial court acknowledged those
grounds and itself satisfied the requirement of the rule.
Tate first contends that he did not, in fact, refuse to
submit to cross-examination. 	He notes that the Commonwealth's
Attorney stated that he "might not need to ask questions" and,
in fact, did not ask any questions. 	Thus, Tate argues, he
refused to answer no questions. 	We do not find this argument
persuasive. 	Code § 19.2-268 states, in relevant part:

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In any case of felony or misdemeanor, the
accused may be sworn and examined in his own
behalf, and if so sworn and examined, he
shall be deemed to have waived his privilege
of not giving evidence against himself, and
shall be subject to cross-examination as any
other witness . . . .
This statute required Tate to resume the witness stand and to
submit himself to cross-examination. 	His dialogue with the
trial court during the recess made it plain that he refused to
do so. 	The trial court was not required to go through a
fruitless charade simply to demonstrate a situation that had
plainly developed. 	The record is clear that Tate refused to
submit to cross-examination by the Commonwealth's Attorney and
that he was fully on notice that striking his testimony would be
the remedy for his refusal.
"[W]hen the accused voluntarily takes the stand he loses
his character as a party, becomes a mere witness, and may be
examined as fully as any other witness." 	Smith v. Commonwealth,
182 Va. 585, 598, 30 S.E.2d 26, 31 (1944) (citation omitted).
Where a witness, after his testimony in
chief, refuses completely to submit to
cross-examination, [the] right of
confrontation is violated and the witness's
direct testimony should be stricken. . . .
Whether the direct testimony should be
stricken as violative of the confrontation
clause is within the discretion of the trial
court . . . .
Nichols v. Commonwealth, 6 Va. App. 426, 430, 369 S.E.2d 218,
220 (1988).

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Striking Tate's testimony was a proper remedy under the
facts of this case. 	His refusal to submit to cross-examination
frustrated the Commonwealth's ability "to test the credibility
of the witness and the truthfulness of his earlier testimony."
United States v. Curry, 993 F.2d 43, 45 (4th Cir. 1993)
(citation omitted). 	The trial court warned Tate that his
testimony would be stricken, ordered Tate's counsel to advise
him of this, and took pains to ensure Tate's understanding of
his rights and responsibilities. 	The trial court did not err in
ordering Tate's testimony stricken. 	Accordingly, the judgment
of the trial court is affirmed.
Affirmed.

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Elder, J., dissenting.
I concur in the majority's holding that Rule 5A:18 does not
bar our consideration of this appeal. 	However, for the reasons
that follow, I would hold that the trial court abused its
discretion in striking appellant's testimony following his
refusal to submit to cross-examination. 	Therefore, I
respectfully dissent from this portion of the majority opinion.
As the majority discusses, Code § 19.2-268 provides, in
relevant part,
[i]n any case of felony or misdemeanor, the
accused may be sworn and examined in his own
behalf, and if so sworn and examined, he
shall be deemed to have waived his privilege
of not giving evidence against himself, and
shall be subject to cross-examination as any
other witness . . . .
The Virginia Supreme Court has held that an earlier version of
this statute "should be liberally construed in favor of the
accused, so as to give him the fullest right to testify in his
own behalf, and that this right should not be any further
impaired than the language of the statute necessarily requires."
Enoch v. Commonwealth, 141 Va. 411, 431, 126 S.E. 222, 228
(1925).
Code § 19.2-268, however, is not the only legal rule
relevant to the outcome of this appeal. 	As appellant has argued
to this Court, the United States Constitution provides a
criminal defendant with the right to testify in his own behalf.

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See Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 2708, 97
L. Ed. 2d 37 (1987). 	"The right to testify on one's own behalf
at a criminal trial has sources in several provisions of the
Constitution." 	Id. 	The Fourteenth Amendment's due process
provisions "include a right to be heard and to offer testimony."
See id. at 51, 107 S. Ct. at 2709 (citing In re Oliver, 333 U.S.
257, 273, 68 S. Ct. 499, 507, 92 L. Ed. 2d 682 (1948)). 	The
Sixth Amendment's Compulsory Process Clause, "which grants a
defendant the right to call 'witnesses in his favor,'" also
provides such a right, for "the most important witness for the
defense in many criminal cases is the defendant himself." 	Id.
at 52, 107 S. Ct. at 2709 (quoting Washington v. Texas, 388 U.S.
14, 17-19, 87 S. Ct. 1920, 1922-23, 18 L. Ed. 2d 1019 (1967)).
Finally, "[t]he opportunity to testify is . . . a necessary
corollary to the Fifth Amendment's guarantee against compelled
testimony." 	Id. 	Under the Fifth Amendment, "'an accused is
guaranteed the right "to remain silent unless he chooses to
speak in the unfettered exercise of his own will." . . . The
choice of whether to testify in one's own defense . . . is an
exercise of the constitutional privilege.'" 	Id. at 53, 107
S. Ct. at 2710 (citations omitted).
The right of a criminal defendant to present relevant
testimony, even his own, "is not without limitation. 	The right
'may, in appropriate cases, bow to accommodate other legitimate

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interests in the criminal trial process.'" 	Id. at 55-56, 107
S. Ct. at 2711 (quoting Chambers v. Mississippi, 410 U.S. 284,
295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297 (1973)) (footnote
omitted). 	For example, "[t]he Constitution does not give a
defendant a right to testify without subjecting himself to
cross-examination which might tend to incriminate him." 	See
Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998). 	Similarly,
a defendant's noncompliance with a state's evidentiary rules may
provide the basis for imposing restrictions on his right to
testify. 	See, e.g., Cox v. Wyrick, 873 F.2d 200, 202 (8th Cir.
1989) (upholding exclusion of defendant's testimony on alibi
defense based on finding that defendant "willfully failed to
respond to the State's discovery requests"). 	Any restrictions
on a defendant's right to testify "may not be arbitrary or
disproportionate to the purposes they are designed to serve. 	In
applying its evidentiary rules a State must evaluate whether the
interests served by a rule justify the limitation imposed on the
defendant's constitutional right to testify." 	Rock, 483 U.S. at
55-56, 107 S. Ct. at 2711. 	Under appropriate circumstances, a
trial court properly may strike the testimony of an accused who
refuses to submit to cross-examination. 	See, e.g., Williams,
139 F.2d at 740-43 (upholding trial court's striking of
defendant's testimony on prosecutor's motion where defendant
refused, on cross-examination, to answer questions about prior

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convictions); see also Nichols v. Commonwealth, 6 Va. App. 426,
430, 369 S.E.2d 218, 220 (1988) (noting that, in determining
whether to exclude uncooperative witness' direct testimony as
violative of confrontation clause, trial court should consider
"factors such as the motive of the witness, the materiality of
the answer, and the effectiveness of the cross-examination").
The Third Circuit Court of Appeals has interpreted the
Supreme Court's holding in Rock to set out a three-part test for
determining whether the right of a criminal defendant to present
testimony has been violated. 	See, e.g., Government of the
Virgin Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992)
(applying test to evaluate exclusion of testimony of defense
witness under defendant's Sixth Amendment right to compulsory
process). 	To establish a violation, a defendant must prove
"[f]irst, that he was deprived of the opportunity to present
evidence in his favor; second, that the excluded testimony would
have been material and favorable to his defense; and third, that
the deprivation was arbitrary and disproportionate to any
legitimate evidentiary or procedural purpose." 	Id.
Applying this test to the facts of this case, I would hold
that the trial court abused its discretion. 	In striking
appellant's direct testimony that he was innocent of the charged
offenses and "[had not] killed anybody," the court satisfied the
first two prongs of the test--it deprived appellant of the

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opportunity to present evidence that, if believed, would have
been material and favorable to the defense. 	I also would hold
that the trial court's action was arbitrary and disproportionate
to any legitimate evidentiary or procedural purpose, thereby
satisfying the third prong of the test.
The trial court struck appellant's testimony because
appellant refused to submit to cross-examination. 	Under
appropriate circumstances, such a refusal could satisfy the
test. 	See, e.g., Williams, 139 F.2d at 740-43; see also
Nichols, 6 Va. App. at 430, 369 S.E.2d at 220. 	Here, however,
appellant testified about his prior convictions on direct
examination, and the Commonwealth's Attorney stated specifically
that "there might not be anything I need to ask [appellant]."
The record contains no indication that the Commonwealth's
Attorney subsequently expressed a desire to cross-examine
appellant and, therefore, no indication of what testimony any
such cross-examination, if it had been sought, would have been
designed to elicit. 	Had the Commonwealth's Attorney thereafter
moved to strike appellant's testimony based on appellant's
continuing refusal to submit to cross-examination, such a motion
could have provided the inference that the Commonwealth's
Attorney did, in fact, desire to cross-examine appellant. 	Here,
however, the Commonwealth's Attorney made no such motion, and
the trial court struck appellant's testimony sua sponte.

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Therefore, given the absence of evidence that the Commonwealth
desired to cross-examine appellant and the absence of evidence
that any such examination would have sought to elicit material
testimony, I would hold that the trial court's action in
restricting appellant's right to testify was arbitrary and
constituted an abuse of discretion.
For these reasons, I respectfully dissent from the
majority's affirmance of appellant's convictions.