                               COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Kelsey and Senior Judge Overton
Argued at Salem, Virginia


ROBERT SHAWN STUMP
                                                              MEMORANDUM OPINION∗ BY
v.     Record No. 1112-03-3                                    JUDGE D. ARTHUR KELSEY
                                                                   OCTOBER 5, 2004
COMMONWEALTH OF VIRGINIA


                        FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                                  Keary R. Williams, Judge

                 Terrence Shea Cook (T. Shea Cook, P.C., on brief), for appellant.

                 Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       On appeal, Robert Shawn Stump raises three challenges to his malicious wounding

conviction. First, Stump claims the evidence is insufficient to support the jury’s verdict.

Second, he argues the trial court erred by allowing him to ask the victim about the number of the

victim’s prior convictions, but not the nature of these convictions. Finally, Stump argues the

prosecution’s failure to inform him pretrial of the victim’s complete criminal record, which

included additional convictions admissible as impeachment evidence, requires a new trial.

       We hold (a) sufficient evidence supports the jury’s verdict, (b) the trial court erred in

limiting cross-examination of the nature of the victim’s prior convictions, but the error should be

deemed harmless under the unique circumstances of this case, and (c) no reasonable probability

exists that, had the additional impeachment evidence been disclosed, it would have changed the

jury’s verdict. For these reasons, we affirm Stump’s conviction.



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                 I.

       On appeal, we review the evidence in the “light most favorable” to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted).

That principle requires us to “discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250,

254, 584 S.E.2d 444, 446 (2003) (en banc) (citation omitted).

       Robert Stump, Kevin Lee Meadows, Jeffrey Dewayne Waynick, James Edward Justus,

and the victim, Jerry Glen Baker, were incarcerated together in the Buchanan County Jail during

the night of December 14, 2001. Baker woke up at approximately 1:30 a.m. and saw Stump and

Justus holding his feet through the bars of his cell. Meadows and Waynick, who had entered

Baker’s cell, “started beating [him] severely in [his] bed.” Meadows and Waynick then dragged

Baker from his bed to the floor of the cell. Stump and Justus, entering the cell, then joined the

other two in beating Baker.

       Gary Chaney, an inmate in an adjacent cell, heard voices say they were “going to jerk

somebody out . . . let’s get him out by his feet . . . .” He then heard “kind of a thump, you know,

couple of thumps, couple of smacks and heard the bars rattle . . . .” Chaney was unable to see

what was happening and did not leave his cell until he heard some taunting voices. Upon exiting

his cell, Chaney saw Stump, Meadows, Waynick, and Justus “standing around” outside Baker’s

cell taunting him.

       After the beating, Baker made his way to the “jailer’s door” and banged on it to get help.

Deputy Rod Estep found Baker at the door with a bloody nose, black eye, and bruises and

scratches on his body. Deputy Estep took Baker to the jail’s administrative office along with

Gary Chaney, who had requested to be removed from the jail pod. In the administrative office,



                                                 -2-
Estep photographed Baker’s injuries and then sent him to a hospital for treatment. None of the

defendants required medical attention.

       A Buchanan County grand jury indicted Stump, Justus, Waynick, and Meadows for

malicious wounding in violation of Code § 18.2-51. The four defendants were tried jointly

before a jury. In addition to Baker’s and Chaney’s testimony, the Commonwealth submitted the

photographs Deputy Estep took of Baker shortly after the incident. The Commonwealth also

presented the testimony of two physicians. Dr. Zaven Jabourian, a board-certified ear, nose and

throat doctor, testified that he diagnosed Baker with “mild to moderate” low-frequency hearing

loss in his left ear. Dr. Brian Looney, a board-certified optometrist certified in the therapeutic

and diagnostic treatment of eye disease, testified that Baker’s left eye was still “completely

swollen together” when he examined him two days after the incident. He diagnosed Baker with

traumatic uveitis, an inflammation of the “front structures of the eye,” and commotio retinae,

“which is bruising of the retina in the back of the eye.” During a later examination, Dr. Looney

became concerned that Baker had developed a “traumatic macular hole,” or tear in the retina, and

referred him to another physician for further care. Such a tear, Dr. Looney stated, could result in

“long-standing reduced vision of the eye.” Both physicians testified that Baker’s hearing and

vision injuries were “consistent with a blunt trauma type injury.”

       All four defendants and one other inmate, David Looney, testified for the defense. Each

contended that Baker was the aggressor in a fight with Kevin Meadows and that Stump and

Waynick merely helped break up the fight. They said Baker was picking on a smaller inmate

and Meadows told him to pick on someone his own size. Baker then attempted to hit Meadows

and Meadows fought back. Waynick admitted, however, that he and the other three defendants

had been incarcerated together since the incident. David Looney confessed that he and the four

defendants had “talked about” the incident among themselves.



                                                 -3-
       Prior to the trial, the Commonwealth provided the defendants with a NCIC criminal

background report. It showed that Baker had been charged with rape in 1974, but stated

“disposition” for the charge was “not received.” At trial, Stump’s counsel cross-examined Baker

regarding his criminal record. Baker admitted he had been convicted of two felonies. When

Stump inquired into the nature of these felonies, the Commonwealth objected. Stump’s counsel

pointed out that “the law of evidence allows the defense attorney to ask the complaining witness

or any other witness that takes the stand not only the number but the nature.” The court

sustained the objection, stating Baker “already acknowledged there were felonies involving

lying, cheating and stealing and the number. That’s sufficient.”

       After trial, Stump discovered that Baker had been convicted of two drug offenses

(distribution of Oxycodone and possession of a Schedule I controlled substance), burglary, and

petit larceny. Seeking a new trial, Stump moved the court to set aside the verdict. The trial court

denied the motion and entered final judgment. Justus, Waynick, and Meadows filed a joint

appeal. We affirmed their convictions in Justus v. Commonwealth, No. 1220-03-2, 2004

Va. App. LEXIS 256 (June 1, 2004). Stump now appeals. For the following reasons, we

likewise affirm his conviction.

                                                II.

                              A. SUFFICIENCY OF THE EVIDENCE

       When a jury decides the case, Code § 8.01-680 requires that “we review the jury’s

decision to see if reasonable jurors could have made the choices that the jury did make. We let

the decision stand unless we conclude no rational juror could have reached that decision.” Pease

v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc), aff’d, 266 Va.

397, 588 S.E.2d 149 (2003). Put another way, a reviewing court does not “ask itself whether it

believes that the evidence at the trial established guilt beyond a reasonable doubt.” Jackson v.



                                                -4-
Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and citation omitted). We must

instead ask whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting

Jackson, 443 U.S. at 319 (emphasis in original)). “This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.

        Stump contends that the jury should have disbelieved Baker’s version of the incident and

credited the “overwhelming testimony” from his codefendants declaring Stump’s innocence.

“The credibility and weight of witnesses’ testimony,” however, belongs solely to the factfinder.

Johnson v. Commonwealth, 40 Va. App. 605, 617, 580 S.E.2d 486, 492 (2003) (quoting Parrish

v. Commonwealth, 38 Va. App. 607, 613, 567 S.E.2d 576, 578-79 (2002)). When weighing

conflicting testimony, the “touchstone is always credibility; the ultimate measure of testimonial

worth is quality and not quantity.” Weiler v. United States, 323 U.S. 606, 608 (1945). With rare

exceptions, jurors are “free in the exercise of their honest judgment to prefer the testimony of a

single witness to that of many.” Id. 1 As the trial court correctly advised the jurors at the start of

the case: “You should not arbitrarily disregard believable testimony of a witness; however, after

you’ve considered the evidence in the case, then you may accept or discard all or part of the

testimony of a witness as you think proper.” See Virginia Criminal Benchbook For Judges &

Lawyers, App-24 (2003-04).

        In this case, Baker testified that he was assaulted by Stump, Justus, Meadows, and

Waynick ⎯ each acting in concert with one another. Stump and Justus initially held Baker’s



        1
         See generally Martin v. Commonwealth, 217 Va. 847, 849, 234 S.E.2d 62, 63 (1977)
(observing no corroboration necessary for attempted murder conviction); Robinson v.
Commonwealth, 186 Va. 992, 994, 45 S.E.2d 162, 162-63 (1947) (noting no corroboration is
necessary for maiming conviction).

                                                  -5-
feet while Meadows and Waynick beat him. Meadows and Waynick then pulled Baker out of his

bed and onto the floor where all four beat him. Gary Chaney overheard them talking about the

planned assault and then heard what sounded like an attack. The photographs Deputy Estep took

shortly after the beating showed Baker’s left eye swollen completely shut and blood “smeared

over his chest and abdominal area.”2 The medical testimony confirmed that Baker suffered

hearing and vision injuries from the beating. Ample evidence, therefore, supports the jury’s

finding that Stump maliciously wounded Baker with the intent to maim, disfigure, disable, or kill

him. See Code § 18.2-51; Robertson v. Commonwealth, 31 Va. App. 814, 823, 525 S.E.2d 640,

645 (2000) (noting that malice is a “question for the fact finder” that may be inferred from “a

purposeful and cruel act” done “without any or without great provocation”).

                     B. NATURE OF PRIOR FELONY CONVICTIONS

       Stump next contends the trial court improperly limited his inquiry into the nature of

Baker’s prior convictions. We agree. Settled Virginia law permits the

               disclosure of the number and nature of felony convictions of a
               witness for the prosecution, Hummel v. Commonwealth, 217 Va.
               548, 550, 231 S.E.2d 216, 217 (1977), cert. denied, 440 U.S. 935
               (1979); accord Johnson v. Commonwealth, 224 Va. 525, 528, 298
               S.E.2d 99, 101 (1982), and of a witness called by the accused,
               Dammerau v. Commonwealth, 3 Va. App. 285, 290, 349 S.E.2d
               409, 412 (1986), overruled on other grounds, Vecuso v.
               Commonwealth, 5 Va. App. 59, 69 (1987). But the rule in Harmon
               that forbids disclosure of the name and nature of prior felony
               convictions for purposes of impeachment of a defendant in a
               criminal trial remains intact. Joyner v. Commonwealth, 10
               Va. App. 290, 298-99, 392 S.E.2d 822, 826-27 (1990).


       2
          Stump contends the “jury was prejudiced by the color photos” and argues the “photos
were more apt to inflame the jury than to reveal the true nature of the injuries . . . .” Stump,
however, did not object to the admission of the photos. Moreover, these photographs, which
could be “admitted into evidence . . . to illustrate a witness’[s] testimony, and as an ‘independent
silent witness’ of matters revealed by the photograph,” Bailey v. Commonwealth, 259 Va. 723,
738, 529 S.E.2d 570, 579 (2000), were “relevant and probative evidence for the jury to consider”
and weigh along with the other evidence, Walker v. Commonwealth, 258 Va. 54, 69, 515 S.E.2d
565, 574 (1999).

                                                -6-
Payne v. Carroll, 250 Va. 336, 339, 461 S.E.2d 837, 838 (1995); see also Sadoski v.

Commonwealth, 219 Va. 1069, 1071, 254 S.E.2d 100, 101 (1979) (“We have held that the

number and nature, but not the details, of the felony convictions of a witness other than the

accused may be shown to the triers of fact.”).

       We concur with the Commonwealth, however, that the error should be deemed harmless

under the unique circumstances of this case. Code § 8.01-678 provides: “When it plainly

appears from the record and the evidence given at trial that the parties have had a fair trial on the

merits and substantial justice has been reached, no judgment shall be arrested or reversed . . .

[f]or any . . . defect, imperfection, or omission in the record, or for any error committed on the

trial.” See generally Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001)

(observing that essential question is whether “error substantially influenced the jury”). This test

parallels the federal standard for non-constitutional error, which focuses on whether the error

“had substantial and injurious effect or influence in determining the jury’s verdict.”

United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos v. United States, 328 U.S.

750, 776 (1946)); see also Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

       We engaged this analysis in Justus v. Commonwealth, No. 1220-03-2, 2004 Va. App.

LEXIS 256 (June 1, 2004), a joint appeal brought by Stump’s three codefendants. On the

harmless error issue, we held:

          The trial court excluded the nature, not the number, of the victim’s prior
          felonies. This case involved a jailhouse fight among incarcerated felons.
          From voir dire on, the jury knew all witnesses to the incident were
          convicted felons. The defendants extensively cross-examined the victim
          but primarily relied on impeachment by contradiction to attack his
          testimony. The nature of the prior felonies was not of particular importance
          during the defense. The defendants did not request an instruction that the
          victim’s prior convictions could be used when assessing credibility, nor did
          they argue impeachment by prior felony in their closing arguments.

          The nature of the victim’s prior felonies was not particularly relevant to
          determining the credibility of the testimony in this case. The essential issue


                                                 -7-
           for the jury was who started the fight. Six defense witnesses, all felons,
           presented a story that contradicted the victim. However, the victim’s
           testimony was corroborated in important respects by Gary Chaney, the
           photographs of the victim’s injuries, and the absence of injuries to anyone
           else.

           We conclude the error was harmless because it is unlikely that naming the
           victim’s prior felonies would have added to the impeachment potential of
           being a felon. The exclusion of the nature of the victim’s prior felony
           convictions did not substantially affect the verdict. “‘If, when all is said and
           done, the conviction is sure that the error [in omitting testimony] did not
           influence the jury, or had but slight effect, the verdict and the judgment
           should stand.’” Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728,
           731 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946)).

Id. at *3. We concur with this reasoning and find it applicable to this case as well.3 We also add

that the trial court, despite erroneously sustaining the Commonwealth’s objection, ameliorated

the error further by stating in the jury’s presence that Baker’s prior convictions involved “lying,

cheating, and stealing.” Because the trial court’s error should be deemed harmless, we hold the

court did not err in denying Stump’s motion for a new trial. 4



       3
         Because we find the reasoning of Justus persuasive and adopt it as our own, we do not
address the Commonwealth’s assertion that under the doctrine of res judicata, the four
codefendants ⎯ tried in a joint trial with shared legal representation ⎯ should be deemed in
privity with one another for claim or issue preclusion purposes.
       4
          As in Justus, we apply the non-constitutional harmless error test. As a general rule, a
defendant demonstrates “a constitutional violation ‘by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed to show a prototypical form of
bias on the part of the witness, and thereby “to expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the reliability of the witness.”’” United States v.
Hill, 322 F.3d 301, 304 (4th Cir. 2003) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680
(1986), and Davis v. Alaska, 415 U.S. 308, 318 (1974)) (emphasis added). An important
distinction exists, however, “between impeachment evidence proving bias and impeachment of
general credibility” and this distinction “is important because generally applicable evidentiary
rules limit inquiry into specific instances of conduct through the use of extrinsic evidence and
through cross-examination with respect to general credibility attacks, but no such limit applies to
credibility attacks based upon motive or bias.” Quinn v. Haynes, 234 F.3d 837, 845 (4th Cir.
2000) (citation omitted); see also Hill, 322 F.3d at 304. Because the impeachment Stump sought
went only to Baker’s general credibility and did not involve the use of prototypical forms of
motive or bias evidence, the evidentiary error does not require us to employ the harmless error
standard reserved for constitutional error.

                                                 -8-
                   C. NONDISCLOSURE OF BRADY IMPEACHMENT EVIDENCE

       Finally, Stump claims the trial court erred by not awarding him a new trial based on the

prosecution’s pretrial failure to disclose Baker’s full criminal history. See Brady v. Maryland,

373 U.S. 83, 87 (1963); see also Strickler v. Greene, 527 U.S. 263, 280 (1999); United States v.

Bagley, 473 U.S. 667, 676 (1985) (observing that the prosecution’s duty to disclose

“encompasses impeachment evidence as well as exculpatory evidence”). To obtain a new trial

on this ground, however, the defendant must prove that there was a “reasonable probability that

the outcome of the proceeding would have been different had the evidence been disclosed to the

defense.” Lovitt v. Warden, 266 Va. 216, 244, 585 S.E.2d 801, 817 (2003) (citations omitted

and emphasis added); Cherrix v. Commonwealth, 257 Va. 292, 302, 513 S.E.2d 642, 649 (1999).

       We do not believe it reasonably probable that disclosure of the additional information

about Baker’s criminal past would have changed the jury’s verdict. The jury knew from the

outset that Baker was a convicted felon. He admitted to two felonies. The judge notified the

venire members during voir dire that the incident occurred “in the Buchanan County Jailhouse

while each of these parties, the defendants and the principal complaining witness were

incarcerated . . . .” The prosecutor added that the “complaining victim in this case was

incarcerated at the time of the events that you’re going to hear about.” Stump’s attorney likewise

explained that all of the witnesses in the case were “convicted felons.” Baker’s prior felonies do

not involve assaultive behavior in any way similar to the facts of this case. And to the extent

they implicate moral turpitude for impeachment purposes (like the larceny and burglary

convictions), the trial judge said as much when he stated in the jury’s presence that Baker’s

convictions involved “lying, cheating, and stealing.” Given the unique facts of this case, we find

the defendant has failed to carry his burden of showing a reasonable probability of an acquittal

had the additional Brady impeachment information been known prior to trial.



                                                -9-
                                                III.

       In sum, we find the evidence sufficient to sustain the jury’s verdict, the trial court’s

erroneous evidentiary ruling harmless, and the Brady nondisclosure of insufficient impeachment

value to warrant a new trial.


                                                                      Affirmed.




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