                   COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia

LUIS ANTONIO ORTEGA
                                          MEMORANDUM OPINION * BY
v.   Record No. 0713-94-2               JUDGE JAMES W. BENTON, JR.
                                             JANUARY 30, 1996
COMMONWEALTH OF VIRGINIA

           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     William R. Shelton, Judge

           John C. Jones, Jr. (Michael HuYoung; Jane
           Chittom; Shuford, Rubin & Gibney, on brief),
           for appellant.
           Kathleen B. Martin, Assistant Attorney
           General (James S. Gilmore, Attorney General,
           on brief), for appellee.



      Luis Antonio Ortega appeals from his convictions for capital

murder and use of a firearm in the commission of capital murder.

 Ortega contends the trial judge erred by admitting in evidence

his initial statement to the police and prohibiting him from

fully cross-examining a material witness.    We agree that the

trial judge improperly limited cross-examination, and we reverse

the convictions.

                                I.

      The evidence proved that shortly after 1:00 a.m.,

Chesterfield County Police Officer Henry Pletch received a call

concerning a suspicious vehicle.     When the officer examined the

vehicle that was parked in a wooded area near an automobile

service station, he learned that the vehicle was registered to

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Felicia Ward.   As the officer was continuing his investigation,

Ritchie Allred approached the vehicle from the direction of the

service station.   Allred told the officer that he was driving the

vehicle, that he had been talking to friends at a nearby motel,

and that he resided at the California Inn in room 202.

     As the officer was talking to Allred, he received a report

that two men had been seen jumping the counter at the service

station.   The officer told Allred, who did not fit the

description of the men, to leave the area.    When the officer

arrived at the service station, he saw the cashier lying dead

behind the counter with a gunshot wound in his chest.     A gun was

on the counter.    During the investigation, the officer viewed a

video tape from the service station's surveillance camera, and he

recognized Allred and the cashier on the tape.    He could not

recognize two other men who appeared on the tape.
     After learning of Allred and the vehicle in the woods, three

officers went to the California Inn.     At six o'clock that morning

while the officers were watching the inn, they saw Luis Ortega

and Marcus Johnson walk behind the inn and then toward the front

without stopping at any doors.    When the officers called to them,

they approached the officers and talked.    Ortega explained his

activities and said that he and Johnson were going to room 202 to

meet Felicia Ward.

     The officers were aware that Allred drove Ward's vehicle

from the woods near the service station.    They also knew that




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Allred said he was staying in room 202.    After one of the

officers talked with Ward outside room 202, the officers ended

their encounter with Ortega and Johnson.   One of the officers

discovered that Allred was also in room 202 and interviewed him.

Based on information received from Allred, the officers stopped

Ortega and Johnson and arrested them.

     Following his arrest and after receiving Miranda warnings,

Ortega confessed that he, Johnson, and Allred were riding in

Ward's vehicle and planning a robbery.    Ortega said that he had a

gun when they entered the service station.   He further said that

his "mind went blank" when the cashier cursed him, pushed

Johnson, and told them to leave the store.   He said that he did

not want to shoot the cashier; however, the gun fired once

because its hammer was cocked.
     Ortega, who was fifteen years old, pled guilty to attempted

robbery and use of a firearm in the commission of attempted

robbery.   He was tried by a jury and convicted of capital murder

and use of a firearm in the commission of capital murder.     He

appeals his convictions for capital murder and use of a firearm

in the commission of capital murder.

                                 III.

     At trial during the Commonwealth's case-in-chief, a police

officer testified concerning Ortega's initial conversation with

the officers outside the inn.    Ortega's counsel objected and

argued that the Commonwealth was proving evidence of Ortega's



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character and veracity even though he had not testified.    Counsel

also asserted that Ortega had confessed to shooting the cashier

and, thus, the defense of alibi was not at issue.   The prosecutor

argued that Ortega's state of mind was at issue and that any

evidence tending to show his guilty state of mind was relevant.

We conclude that the trial judge properly allowed the evidence.

     The officer testified that Ortega said he and Johnson had

been with Ward until five o'clock on the afternoon of the

previous day.   Ortega also said that he was again with Ward until

ten o'clock the evening of the previous day.   When he departed at

ten o'clock, he and Johnson visited his friend Tamera.    He told

the officers that he and Johnson were just returning from

Tamera's house, where they had been continuously after leaving

Ward at ten o'clock.
     Later, in its case-in-chief, the Commonwealth proved through

Tamera's testimony that Ortega left her house eight hours before

he talked to the police officers.   The Commonwealth also proved

that in his confession Ortega had admitted being in Ward's

vehicle and at the service station.

     "In Virginia, the weight of the evidence or the inferences

to be drawn from circumstances . . . is always a matter for the

jury."   Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210,

213 (1949).   A jury may properly consider an accused's

contradictory or inconsistent statements to the police as

circumstantial evidence demonstrative of a guilty state of mind.




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 See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610

(1981).
             In all cases of circumstantial evidence
          the conduct of the accused is always an
          important factor in the estimate of the
          weight of circumstances which point to his
          guilt. Where a conviction rests upon
          circumstantial evidence, much weight is given
          to contradictory statements of material facts
          by the accused. Each should be considered
          along with the other facts and circumstances
          shown in evidence to determine whether, upon
          the whole case, the evidence excludes every
          reasonable hypothesis consistent with the
          accused's innocence.

Toler, 188 Va. at 781, 51 S.E.2d at 213.

     The Commonwealth had the burden to show Ortega killed

willfully, deliberately and with premeditation.   Code

§ 18.2-31(4).   Ortega pled not guilty and, thus, put at issue his

conduct and his state of mind at the time the killing occurred.

Obviously, the jury was not required to believe in its totality

the explanation Ortega gave in his confession.

     After assessing Ortega's contradictory statements, the jury

could have inferred that he was trying to conceal his guilt.
Black, 222 Va. at 842, 284 S.E.2d at 610.   The Supreme Court has

clearly stated that an accused's "contradictory statements . . .

[may] furnish bases for reasonable inferences that his

explanations were made falsely in an effort to conceal guilt."

Toler, 188 Va. at 782, 51 S.E.2d at 214.    Thus, the trial judge

did not err in admitting Ortega's contradictory pre-arrest

statements as evidence tending to prove his state of mind and his



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efforts to conceal his guilt.    See also Land v. Commonwealth, 211

Va. 223, 229, 176 S.E.2d 586, 590-91 (1970) (contradictory

statements "which tended to show guilt, when considered with

other evidence, were admissible").




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                                IV.

     Ortega also contends that the trial judge improperly limited

his cross-examination of Richie Allred.     Following Allred's

conversation with the officers at the inn, Allred was arrested

for murder, attempted robbery, and use of a firearm.    All of

those charges arose from the same incident for which Ortega was

being tried.   When Allred testified for the Commonwealth, those

charges were still pending.
     Allred testified on direct examination that he, Ortega, and

Johnson lived together at the inn.     On the night of the incident

he drove Ward's vehicle to a wooded area and went with Ortega and

Johnson to a nearby entertainment lounge.    Later, he and Ortega

walked to the service station to buy a soda.    When they entered,

the cashier cursed at Ortega and told him to leave the store.

Allred testified that on a prior occasion the cashier had accused

Ortega of shoplifting and had threatened to call the police.

Allred also testified that after they left the store Ortega said

that he felt like robbing the cashier.    Allred testified that he

told Ortega not to bother the cashier and that he did not believe

Ortega was serious.   He testified that he went back to the

vehicle in the woods while Ortega and Johnson re-entered the gas

station.

     Allred further testified that he was unaware that Ortega had

a weapon.   Allred admitted owning a gun.   He testified, however,

that he last saw the gun several days before the incident and had




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never seen Ortega with it.   When shown the gun found in the

service station, Allred testified that it resembled his gun.

     Immediately following Allred's direct examination and prior

to cross-examination, the prosecutor requested a bench

conference.   The prosecutor then informed the trial judge that

Allred's bail had been reduced and that Allred had been released

from custody.   The prosecutor explained that the bail was reduced

because Allred passed a polygraph examination.     The prosecutor

asked the trial judge to restrict Ortega's counsel from pursuing

matters concerning the reduced bail.     After hearing counsel's

argument, the trial judge ruled that Allred's counsel could not

ask "if his bond was reduced as a result of favoritism."
     Citing Rule 5A:18, the Commonwealth alleges Ortega forfeited

his right to raise this claim on appeal by failing to object at

trial.   We disagree.   This issue arose when the Commonwealth

objected to an anticipated line of questions by defense counsel.

The record demonstrates that the trial judge was alerted to the

contested issue, heard arguments from both counsel, and had the

opportunity to rule intelligently.      The arguments at the bench

conference fulfilled the purpose of 5A:18.      See Martin v.

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992).

     "Cross-examination is fundamental to the truth-finding

process . . . [and] is an absolute right guaranteed by the

confrontation clause of the Sixth Amendment."      Barker v.
Commonwealth, 230 Va. 370, 376, 337 S.E.2d 729, 733 (1985).




                                - 8 -
Questioning the motive of a witness "'is a proper and important

function of the constitutionally protected rights of cross-

examination.'"   Delaware v. Van Arsdall, 475 U.S. 673, 678-79

(1986)(citation omitted).   See also Deavers v. Commonwealth, 220

Va. 14, 16, 255 S.E.2d 458, 459 (1979).

     To allow for the exploring of the depths of a witness' self-

interest, "the cross-examiner is not only permitted to delve into

the witness' story to test the witness' perceptions and memory,

but the cross-examiner has traditionally been allowed to impeach,
i.e., discredit, the witness."     Davis v. Alaska, 415 U.S. 308,

316 (1974).   "One purpose of cross-examination is to show that a

witness is biased and his testimony unreliable because it is

induced by considerations of self-interest."     Barker, 230 Va. at

376, 337 S.E.2d at 733.   Indeed, "a defendant is entitled to show

that testimony of a prosecution witness was motivated by an

expectation of leniency in a future trial."     Whittaker v.

Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977).      Absent

a showing of abuse in the conduct of the examination, a defendant

has an absolute right to cross-examination of witnesses for bias

or motivation.   Hewitt v. Commonwealth, 226 Va. 621, 623, 311

S.E.2d 112, 114 (1984).

     Although the Commonwealth told the judge during the bench

conference that Allred's bond had been reduced due to the results

of a polygraph examination, Ortega was entitled to the

opportunity to examine Allred before the jury concerning the




                                 - 9 -
reduction in his bail and to establish, if he could, that Allred

was given special consideration because of Allred's promise to

testify favorable for the Commonwealth.   Allred's motivation and

self-interest were proper areas of inquiry.   The Commonwealth's

argument, that it could only rehabilitate Allred by introducing

the polygraph results, was not a proper basis to limit cross-

examination.   The trial judge's fear that the jury would learn of

the polygraph could have been assuaged by instruction to Allred.

Indeed, the prosecutor stated that he had "told . . . Allred not

to say anything about a polygraph."
     If Allred's motive in testifying was a grant or promise of

leniency, Ortega was entitled to explore it through cross-

examination.   The lowering of the bail, whether as part of an

explicit or implicit agreement, may have encouraged Allred to

testify for the Commonwealth.    Thus, it may have had a direct

bearing upon the jury's consideration of his credibility.    Ortega

had a right to investigate during cross-examination the reasons

why Allred agreed to testify for the Commonwealth.     Barker, 230

Va. at 376, 337 S.E.2d at 733-34.    Accordingly, we conclude that

the trial judge denied Ortega's Sixth Amendment right of cross-

examination in forbidding any questions regarding the reduction

of Allred's bond.   Williams v. Commonwealth, 4 Va. App. 53,

77-78, 354 S.E.2d 79, 93 (1987).

     The Commonwealth argues that the judge's restriction of

cross-examination was harmless.    We do not agree.   To prove a




                                - 10 -
constitutional error is harmless, the Commonwealth must show

"beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained."   Chapman v. California, 386

U.S. 18, 24 (1967).   In his testimony, Allred described Ortega's

anger at the cashier and the role that Ortega played in the

decision to rob the store.   Allred also testified that Ortega

"had had problems with [the victim] before" and that Ortega had a

motive to kill the victim.   Thus, Allred's testimony was crucial

in the Commonwealth's proof that the killing was "willful,

deliberate, and premeditated."   Code § 18.2-31(4).   Allred

provided important testimony of Ortega's state of mind and

intent.   The only other evidence tending to prove Ortega's frame

of mind prior to the shooting was purely circumstantial.
     The record does not establish beyond a reasonable doubt that

if Ortega had been permitted to examine Allred regarding bias and

motivation, the jury would not have rejected Allred's testimony

and the verdict would have been the same.   Because the error was

not harmless, we must reverse the convictions and remand for a

new trial.
                                         Reversed and remanded.




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