                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Chafin and Senior Judge Clements
UNPUBLISHED


              Argued at Richmond, Virginia


              WILLIAM JOSEPH HUGHES
                                                                                            MEMORANDUM OPINION* BY
              v.            Record No. 1983-14-4                                             JUDGE TERESA M. CHAFIN
                                                                                                   MAY 3, 2016
              COMMONWEALTH OF VIRGINIA


                                                   FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                                                                Michael E. Levy, Judge

                                           David B. Hargett (Hargett Law, PLC, on brief), for appellant.

                                           Eugene Murphy, Senior Assistant Attorney General (Mark R.
                                           Herring, Attorney General, on brief), for appellee.


                            At the conclusion of a four-day trial held in the Circuit Court of Stafford County, a jury

              convicted William Joseph Hughes of first-degree murder in violation of Code § 18.2-32. On

              appeal, Hughes argues that the circuit court erred by admitting testimony from a detective

              concerning motorcycle clubs and their culture.1 Specifically, Hughes contends that the circuit

              court erred by “permitting the witness to testify about the culture [and] history . . . of one

              percenters, Hell’s Angels, Warlocks and their outlaw nature.” Hughes claims that such

              testimony was irrelevant, inflammatory, and highly prejudicial to his case. For the reasons that

              follow, we affirm Hughes’s conviction.

                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                            1
                       In Hughes’s sole assignment of error, he also contends that the circuit court erred by
              “declaring [the detective] to be an expert in motorcycle clubs and one percenters.” Hughes did
              not argue this point at trial, and on appeal he has failed to provide any authority or argument
              concerning the detective’s qualification as an expert on these subjects. Therefore, we deem this
              specific argument waived and only address Hughes’s argument concerning the relevance and
              prejudicial effect of the challenged testimony. See Rules 5A:18 and 5A:20.
                                                               I. BACKGROUND2

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

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence established that Jason Plaster

disappeared in July 2007. Police found his body in 2013 after Dennis Benzie told them that

Hughes killed Plaster near Benzie’s house and buried him there.

              At Hughes’s trial, Benzie and Stuart Sullivan testified that Hughes killed Plaster because

he made sexual advances toward Hughes’s wife and daughter. Hughes, Benzie, and Sullivan

each participated in the murder. The three men devised a plan to lure Plaster to Benzie’s

secluded property and kill him there. Pursuant to this plan, Hughes and Sullivan brought Plaster

to Benzie’s property to look at a motorcycle. After the men looked at the motorcycle, Benzie

suggested that they go into the woods surrounding his home to dig up some guns he had hidden.  

At some point after the men entered the woods, Hughes shot Plaster in the chest with a derringer

pistol. Sullivan then shot him with a .9 mm pistol. The men covered Plaster’s body with lime

and buried it in the woods. Later, Benzie drove Plaster’s car away from his property and

abandoned it in a high-crime area, leaving its keys in the ignition to encourage someone to steal

the car.

              Hughes challenged the credibility of Benzie and Sullivan by cross-examining them about

the benefits they received for implicating him in the murder and testifying against him. Benzie

testified that he had entered into an immunity agreement with the Commonwealth that shielded


                                                            
              2
         Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.
                                                                    -2-
him from prosecution for murder charges related to Plaster’s death. Benzie explained, however,

that the agreement did not protect him from prosecution for all charges stemming from his role in

the murder and that he was currently being prosecuted on related charges. On redirect

examination, Benzie also explained that he had risked his personal safety by testifying against

Hughes, and described an incident in which two men attacked him with knives in jail because he

was a “snitch.”

       Sullivan testified about the plea agreement he made with the Commonwealth in exchange

for his testimony against Hughes. Under the terms of that agreement, Sullivan agreed to plead

guilty to second-degree murder for his role in Plaster’s death in exchange for a sentence within

the range recommended by his sentencing guidelines. Like Benzie, Sullivan testified that he

risked his safety by testifying against Hughes. He testified that he knew that Hughes was a

“felon” and a “criminal” and that Hughes had told him about an incident where he had beaten a

man with a hammer when he refused to sell drugs to him. He also testified that Hughes had told

him that he had been in several bar fights.

       Additionally, Sullivan testified that he was afraid of Hughes because of “the kinds of

people he [ran] around with.” Sullivan testified that Hughes was currently a member of the

Warlocks motorcycle club and that Hughes’s membership in the club caused him concern.

Sullivan testified that he feared for his personal safety while he was in prison, as well as the

safety of his family. Due to his fear of Hughes, Sullivan testified that he wore a hood to conceal

his identity when he helped the police find Plaster’s body.

       Detective C.P. Cameron testified about his interactions with Benzie and Sullivan during

the investigation of Plaster’s murder. Cameron testified that when he initially interviewed

Benzie about Hughes’s involvement in the murder, Benzie told him that Hughes was involved

with the Warlocks motorcycle club. Benzie told Cameron that he was afraid of the Warlocks and
                                                -3-
that if he helped with the investigation he could be “a dead man.” Cameron explained that “the

nature of motorcycle gangs [is] not very friendly to law enforcement.”

       Cameron also testified that Sullivan was afraid of Hughes and that he asked for police

protection for himself and his family rather than immunity from prosecution for his role in the

murder. To facilitate Sullivan’s request, Cameron testified that Sullivan wore a hood and large

jacket to conceal his identity when he helped the police find Plaster’s body and that a detective

stayed at his house that evening to protect his family. Cameron testified that Sullivan told him

that Hughes “at the time of his arrest was the president of one of the chapters of Virginia for the

outlaw motorcycle gang the Warlocks.” Cameron explained that Sullivan’s fear was “natural”

given the “other events involving Mr. Hughes in the past and the fact that he . . . was a member

of an outlaw motorcycle gang.”

       Following the testimony of Benzie, Sullivan, Cameron, and others involved in the

investigation of Plaster’s murder, Detective Todd Nosal testified about the Warlocks motorcycle

club. Hughes objected to his testimony, arguing that it was irrelevant evidence of prior bad acts

that was highly prejudicial to his case. The Commonwealth responded to the objection by

arguing that evidence about the motorcycle club was relevant to corroborate Benzie’s and

Sullivan’s fear of Hughes and to explain certain items seized during the murder investigation.

The circuit court overruled the objection, explaining that “the relevance would be that there was

a lot gotten into in cross examination of the two major witnesses about their fear and what the

basis for their fear was. And so to the extent they’ve got that evidence about this organization

and the fact that the paraphernalia was found there, that’s supporting of their fear.”

       After the circuit court overruled Hughes’s objection, Nosal provided background

information concerning the Warlocks motorcycle club. Nosal testified that the Warlocks had

chapters throughout the nation and that they generally were “not cooperative with law
                                                -4-
enforcement.” Nosal then described several items of clothing and jewelry seized from Hughes’s

motorcycle shop and a vest seized from a truck owned by Hughes that was parked in Benzie’s

workshop. Nosal testified that these items displayed emblems associated with the Warlocks.

              Nosal specifically testified that one of the rings found at Hughes’s business displayed a

“one percent” in its center and that the Warlocks were known as a “one percenter” motorcycle

club.3 Nosal explained that the term “one percenter” originated following a riot at a motorcycle

rally in 1947. After the rally, the American Motorcycle Association issued a press release stating

that “ninety-nine percent of the motorcycle riders in America were law-abiding citizens, [but]

one percent did not subscribe to the rule and were considered outlaw by the American

Motorcycle Association.” Nosal explained that certain motorcycle clubs on “the fringes of

normal society” quickly adopted the term and began wearing “one percenter” emblems on their

clothing. While Nosal testified that the Warlocks were known as “one percenters,” he clarified

that it was not illegal to be a member of the Warlocks and that some members of “one percenter”

groups were law-abiding citizens.

              After the Commonwealth rested its case, Hughes testified on his own behalf and denied

that he had any role in Plaster’s murder. On cross-examination, he admitted that he was the

president of a local chapter of the Warlocks motorcycle club and that he owned the items related

to the Warlocks that were seized by the police. Hughes also admitted that the club was a “one

percenter” group and specifically agreed with Nosal’s testimony regarding the origins of that

term. Hughes explained, however, that he was not a member of the Warlocks in 2007 when

Plaster disappeared. When asked about the activities of the Warlocks, Hughes stated that they




                                                            
              3
                  Nosal also testified that the Hell’s Angels motorcycle club was a “one percenter” group.
                                                               -5-
were “a bunch of guys who liked to ride motorcycles,” who held annual events to support their

club.

              At the conclusion of Hughes’s trial, the jury convicted him of first-degree murder and

sentenced him to twenty-seven years of incarceration.4 The circuit court imposed the jury’s

sentence, and this appeal followed.

                                                               II. ANALYSIS

              On appeal, Hughes contends that Nosal’s testimony about the Warlocks was irrelevant

and highly prejudicial.5 As the Commonwealth failed to contend that Plaster’s murder was

related to the Warlocks in any way, Hughes argues that evidence concerning the Warlocks was

not relevant to prove any element of the charged offense. Furthermore, Hughes maintains that

evidence of his membership in the Warlocks was not factually relevant because he had not yet

joined the club when Plaster disappeared in 2007. Additionally, Hughes contends that Nosal’s

testimony portraying the Warlocks as an “outlaw” or “one percenter” organization inflamed the

jury and unfairly allowed them to infer that he was a criminal.

              “The admissibility of evidence is within the broad discretion of the trial court, and a

ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Jones v.

Commonwealth, 38 Va. App. 231, 236, 563 S.E.2d 364, 366 (2002). In the present case,

however, we do reach the merits of Hughes’s argument. Assuming without deciding that the

                                                            
              4
        The jury found Hughes not guilty of using a firearm to commit the murder in violation
of Code § 18.2-53.1.
              5
         Hughes’s sole assignment of error on appeal is expressly limited to the relevance of
Detective Nosal’s testimony. At trial, Hughes objected to testimony from other witnesses about
his membership in the Warlocks because it constituted inadmissible hearsay or speculation. On
appeal, however, he has failed to challenge the circuit court’s decisions to admit that testimony.
Accordingly, we are barred from considering the admissibility of the testimony of other
witnesses concerning the Warlocks and only consider the admissibility of Nosal’s testimony on
the grounds presented in Hughes’s assignment of error. See Rule 5A:20.
                                                                   -6-
circuit court erred by admitting Nosal’s testimony concerning the Warlocks, we conclude that

any error resulting from the admission of his testimony was harmless under the particular

circumstances of this case.

       As the error alleged in the present case involves the circuit court’s decision regarding the

relevance of certain evidence, we apply the statutory standard provided by Code § 8.01-678 to

determine whether the non-constitutional error was harmless. Code § 8.01-678 states, in

pertinent part, that “[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, no

judgment shall be arrested or reversed.” Interpreting this standard, the Supreme Court has

reasoned that:

                 If, when all is said and done, the conviction is sure that the error
                 did not influence the jury, or had but slight effect, the verdict and
                 the judgment should stand . . . . But if one cannot say, with fair
                 assurance, after pondering all that happened without stripping the
                 erroneous action from the whole, that the judgment was not
                 substantially swayed by the error, it is impossible to conclude that
                 substantial rights were not affected. . . . If so, or if one is left in
                 grave doubt, the conviction cannot stand.

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.

United States, 328 U.S. 750, 764-65 (1946)). Stated alternatively,

                 An error is harmless . . . 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, . . . if the evidence
                 admitted in error was merely cumulative of other, undisputed
                 evidence.”

McClean v. Commonwealth, 32 Va. App. 200, 211, 527 S.E.2d 443, 448 (2000) (emphasis

added) (quoting Ferguson v. Commonwealth, 16 Va. App. 9, 12, 427 S.E.2d 442, 444-45

(1993)).



                                                   -7-
       We conclude that Nosal’s testimony about the Warlocks was cumulative of other

evidence before the jury. Both Sullivan and Cameron testified that Hughes was a member of the

Warlocks before Nosal even testified. Sullivan testified that Hughes was a member of the

Warlocks and that his association with that club caused Sullivan to fear for his personal safety.

Cameron testified that Benzie told him that Hughes was a member of the Warlocks and that

Benzie implied that he would jeopardize his safety by assisting the police in the murder

investigation. He also testified that Sullivan made similar statements. Additionally, Cameron

testified that Sullivan told him that the Warlocks were an “outlaw motorcycle gang” and that in

his experience, motorcycle gangs were not friendly to law enforcement.

       Furthermore, Hughes personally corroborated Nosal’s testimony. He admitted that he

was a Warlock and that the Warlocks motorcycle club was a “one percenter” gang. He also

expressly agreed with Nosal’s testimony concerning the origin of the “one percenter” term and

referred back to the detective’s testimony while he was testifying. Hughes then provided

additional testimony about the activities of the club.

       Although Nosal’s testimony described the Warlocks motorcycle club in greater detail, the

substance of his testimony reached the jury through other witnesses. Before Nosal testified,

Sullivan and Cameron established that Hughes was a member of the Warlocks, an “outlaw”

motorcycle club that did not cooperate with law enforcement, and Hughes verified Nosal’s

testimony later in the trial. Accordingly, we conclude that Nosal’s testimony was cumulative

and its admission, at most, constituted harmless error.

       Other aspects of this case, however, also support our conclusion. When analyzing

whether an error is harmless, we consider a host of factors, including the overall strength of the

Commonwealth’s case. See, e.g., Sargent v. Commonwealth, 5 Va. App. 143, 154, 360 S.E.2d

895, 901 (1987). In the present case, the Commonwealth presented substantial evidence at trial
                                                -8-
establishing Hughes’s guilt of the charged offense. Benzie and Sullivan both provided

eyewitness testimony about the murder. A third witness, Benzie’s brother-in-law, also testified

that he saw Hughes, Benzie, Sullivan, and Plaster on Benzie’s property together sometime in

2007 and that he observed a bag of lime in Hughes’s truck on that occasion. This witness

testified that Benzie told him not to accompany the men into the woods that day. He also

testified that he recovered a derringer pistol that had been buried on the property using a metal

detector at Hughes’s and Benzie’s request.

       Additionally, physical evidence corroborated several aspects of Benzie’s and Sullivan’s

testimony. Consistent with Benzie’s testimony, Plaster’s car was found in a high-crime area with

the keys in its ignition shortly after his disappearance. Consistent with the testimony of both

witnesses, a .9 mm bullet was found in Plaster’s skull and his ribs had been damaged by another

gunshot. Furthermore, lime was found in the soil around his body. Hughes’s cell phone records

also provided independent evidence linking him to the crime. Although he frequently called

Plaster before his disappearance, he abruptly stopped calling him after he had disappeared.

       We also note that the prejudicial effect of Nosal’s testimony was limited by the way it

was framed by the Commonwealth. Although the Commonwealth asked Nosal whether the

Warlocks were a “one percenter” club, Nosal clarified that membership in the Warlocks was not

illegal in itself and that members of the Warlocks and other “one percent” groups could be

law-abiding citizens. Thus, the Commonwealth limited the prejudicial effect of Nosal’s

testimony and lessened the possibility that the jury would infer that Hughes was a criminal solely

because he was a member of the Warlocks. The prejudicial effect of Nosal’s testimony was also

limited by the fact that testimony describing Hughes’s prior criminal acts was already in

evidence. Sullivan explicitly testified that Hughes was a “felon” and “criminal,” and described

several instances where Hughes violently assaulted others.
                                               -9-
                                       III. CONCLUSION

       In conclusion, we hold that the admission of Nosal’s testimony constituted harmless

error. In light of the cumulative nature of the testimony, the circumstances limiting its

prejudicial effect, and the strength of the Commonwealth’s evidence, we conclude that its

admission did not affect the jury’s verdict. Accordingly, we affirm Hughes’s conviction.

                                                                                            Affirmed.




                                               - 10 -
