                      COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Hodges
Argued at Salem, Virginia


PAUL MATTHEWS HOLT, III
                                           MEMORANDUM OPINION * BY
v.   Record No. 2542-01-3         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                APRIL 8, 2003
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                   A. Dow Owens, Judge Designate

           Michelle C. F. Derrico (Law Office of John S.
           Edwards, on briefs), for appellant.

           Richard B. Smith, Senior Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     A jury convicted Paul Matthews Holt, III (appellant) of

unlawful wounding, and the trial court sentenced him to six

months in jail and a fine of $2,500, in accordance with the

jury's recommendation.     On appeal, appellant contends the trial

court erred by:   (1) limiting his cross-examination of the

complaining witness; and (2) barring testimony from the

complaining witness' wife on the grounds of marital privilege.

For the reasons that follow, we reverse and remand for a new

trial should the Commonwealth so choose.



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

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.   See Juares v. Commonwealth, 26 Va. App. 154, 156,

493 S.E.2d 677, 678 (1997).   So viewed, the evidence proved that

on the morning of October 17, 2000 appellant and Raymond Charles

Peggins, who had been roommates and lovers for approximately two

years, had a fight that ended when Peggins was shot in the hip.

     Peggins testified about the events of the altercation as

follows.   Appellant and Peggins were awakened by a telephone

call from a mutual friend who wanted a ride.    The telephone call

sparked an argument, and they "had some words and like a little

struggle."   Peggins stated appellant "tried to, pretty much

. . . manhandle me or something like that, wrestle me, and I put

my feet in his chest and I kicked him off me."   The two then

went to their respective rooms and dressed; but the argument

continued.   Peggins stated that appellant verbally abused him

and hit him while he dressed.    At some point during the

argument, appellant retrieved a loaded gun from his dresser and

put it in his right pocket.

     The disagreement escalated, and Peggins announced he was

leaving.   Appellant followed Peggins to the door and out onto

the porch where Peggins said:    "If you hit me again, I am going

to take a warrant out on you."    Appellant swung at Peggins.

                                 - 2 -
Peggins dodged the intended blow, and appellant fell "flat on

his back."    While appellant was on the ground, Peggins saw him

pull the gun out of his pocket.    As Peggins ran toward a parked

car "for safety," he was shot.    Peggins asked appellant, "why

did you shoot me" then "fell to the ground."    Peggins asked

appellant to call an ambulance, which he did.    Peggins testified

that the only time he touched appellant was when he pushed

appellant away from him with his feet.

        Appellant's version of events was similar, except he stated

that Peggins threw the first punch and was the aggressor

throughout.    Appellant stated he picked up the gun only to keep

it from Peggins, who was screaming at him, "Bitch, I'll murder

you."    Appellant stated that when he followed Peggins outside,

Peggins "hit me and when he hit me, I fell on the grass."

Peggins then started hitting and kicking appellant.    To escape

these blows, appellant "started rolling" and the gun fell out of

his pocket.    Appellant, who is left handed, put his right hand

on the gun to keep it away from Peggins.    When appellant tried

to stand up, Peggins hit him "in the nose."    Appellant stated,

             [Peggins] hit me so hard that my head just
             like jerked back, and I fell flat down on
             the ground. When I fell on the ground, I
             heard a pow, and when I went to get back up,
             I looked and [Peggins] said, "Bitch, you
             shot me," and I said, "No, I didn't."

When he realized Peggins had been shot, appellant "ran" to the

house and called an ambulance.


                                 - 3 -
     At trial, appellant sought to introduce into evidence the

contents of Peggins' claim for compensation from the Virginia

Criminal Injuries Compensation Fund (Claim Form).    Appellant

argued the Claim Form contained statements that were inconsistent

with Peggins' trial testimony.    In addition, appellant asserted

that the requirements for compensation delineated on the Claim

Form, specifically that Peggins could not have been the aggressor

or a willing participant in the incident, provided proof of a

monetary motive for Peggins to fabricate his testimony.    The trial

court sustained the Commonwealth's objection to the use of the

Claim Form during cross-examination and ruled the Claim Form

"ha[d] nothing to do with whether . . . [appellant] shot [Peggins]

or not."   Appellant was not permitted to ask Peggins any questions

about the Claim Form or its contents in the presence of the jury.

     Appellant also sought to impeach Peggins' trial testimony

about the facts of the fight with statements Peggins made to his

estranged wife, Nakia Shelton, about the shooting.   The trial

court sustained the Commonwealth's objection that the statement of

the victim's wife was covered by spousal immunity1 and instructed

appellant not to "pursue this matter at all."

     Shelton's proffered testimony detailed two separate

conversations she had with Peggins about the shooting.    Shelton

stated that Peggins told her:


     1
       Neither Peggins, the victim, nor Shelton, his estranged
wife, invoked any type of privilege.

                                 - 4 -
           he was in the house and [he and appellant]
           got into it about some muscle relaxers or
           something, some type of pills of
           [appellant's], . . . and they got to arguing
           and exchanging blows, and it started from
           the back of the house all the way out into
           the front yard, and they were arguing, and
           he said he hit [appellant] and knocked him
           on the ground. . . . He said that when he
           was getting ready to hit him again or kick
           him or whatever, he said that [appellant]
           had pulled out the gun.

Shelton also stated that Peggins told her he "was stomping on"

appellant while he was on the ground, a clear contradiction of

his trial testimony.    Shelton said that Peggins "felt he would

get more money from the State rather than saying [the shooting]

was an accident."

         II.   Cross-examination of the Complaining Witness

     Appellant first contends the trial court erred in limiting

his cross-examination of Peggins.    Appellant argues he should have

been permitted to question Peggins on the statements he made in

the Claim Form. 2   We agree and find the analysis in Barker v.

Commonwealth, 230 Va. 370, 337 S.E.2d 729 (1985), controlling.

     "The Sixth Amendment's Confrontation Clause, made applicable

to the States through the Fourteenth Amendment, provides:     'In all

criminal prosecutions, the accused shall enjoy the right to be


     2
       The Commonwealth argues appellant's assignment of error is
procedurally barred because he failed to expressly say he wanted
to impeach Peggins for "bias." We hold that appellant properly
preserved his assignment of error for appeal when he stated on
the record that he wished to impeach Peggins as to the
inconsistent statements on the Claim Form and by showing Peggins
had a motive to fabricate his testimony.

                                - 5 -
confronted with the witnesses against him.'"     Ohio v. Roberts, 448

U.S. 56, 62-63 (1980).   "The right to confront witnesses secured

by the Sixth Amendment encompasses the right to cross-examine

them."   Rankins v. Commonwealth, 31 Va. App. 352, 364, 523 S.E.2d

524, 530 (2000) (citing Cruz v. New York, 481 U.S. 186 (1987);

Douglas v. Alabama, 380 U.S. 415, 418 (1965)).

"Cross-examination is an absolute right guaranteed to a

defendant by the confrontation clause of the Sixth Amendment and

is fundamental to the truth-finding process."      Clinebell v.

Commonwealth, 235 Va. 319, 325, 368 S.E.2d 263, 266 (1988).

     "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 (citing Whittaker v. Commonwealth, 217 Va. 966,

967, 234 S.E.2d 79, 81 (1977)).   "The bias of a witness . . . is

always a relevant subject of cross-examination."      Goins v.

Commonwealth, 251 Va. 442, 465, 470 S.E.2d 114, 129 (1996)

(citing Norfolk & Western Railway Co. v. Sonney, 236 Va. 482,

488, 374 S.E.2d 71, 74 (1988); see Brown v. Commonwealth, 246

Va. 460, 464, 437 S.E.2d 563, 564-65 (1993)).     Accordingly, the

Supreme Court of Virginia has "consistently held that the right

of an accused to cross-examine prosecution witnesses to show

bias or motivation, when not abused, is absolute."      Hewitt v.

Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114 (1984)

(citing Whittaker, 217 Va. at 968, 234 S.E.2d at 81; Davis v.

                               - 6 -
Commonwealth, 215 Va. 816, 822, 213 S.E.2d 785, 789 (1975);

Woody v. Commonwealth, 214 Va. 296, 299, 199 S.E.2d 529, 531-32

(1973); Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324,

327 (1961)).

     "Although a trial court may exercise discretion to see that

the right of cross-examination is not abused, the discretion may

be employed only after the right to cross-examine has been

fairly and substantially exercised."     Barrett v. Commonwealth,

231 Va. 102, 108, 341 S.E.2d 190, 194 (1986) (emphasis added).

In the instant case, appellant's right to cross-examine Peggins

was not fairly and substantially exercised.    Like the appellant

in Barker, appellant attempted to investigate Peggins' possible

bias and motive to fabricate by questioning him about his

request for payment of funds under a victim assistance program.

The Supreme Court of Virginia stated, "We believe that the

matters Barker wished to explore were appropriate subjects of

cross-examination to test [the victim's] credibility.    Clearly,

these matters were relevant to establish [the victim's] possible

bias and motive to fabricate."     Barker, 230 Va. at 376, 337

S.E.2d at 734.   Appellant was neither permitted to introduce the

Claim Form into evidence nor to question Peggins on statements

in the Claim Form that were inconsistent with his trial




                                 - 7 -
testimony. 3   Thus, as in Barker, "we hold that the trial court

erred in restricting [appellant's] cross-examination."     Id.

Although we reverse on this issue, because appellant's second

assignment of error is likely to arise on remand we must

consider it as well.

               III.   Privileged Marital Communications

     Appellant next contends the trial court erred in limiting

his cross-examination of Peggins' estranged wife.    We agree.

           In criminal cases husband and wife shall be
           allowed, and, subject to the rules of
           evidence governing other witnesses and
           subject to the exception stated in
           § 8.01-398, may be compelled to testify in
           behalf of each other, but neither shall be
           compelled to be called as a witness against
           the other, except (i) in the case of a
           prosecution for an offense committed by one
           against the other or against a minor child
           of either, (ii) in any case where either is
           charged with forgery of the name of the
           other or uttering or attempting to utter a
           writing bearing the allegedly forged
           signature of the other or (iii) in any
           proceeding relating to a violation of the
           laws pertaining to criminal sexual assault
           (§§ 18.2-61 through 18.2-67.10), crimes
           against nature (§ 18.2-361) involving a
           minor as a victim and provided the defendant
           and the victim are not married to each
           other, incest (§ 18.2-366), or abuse of
           children (§§ 18.2-370 through 18.2-371).

Code § 19.2-271.2.


     3
       For example, on the Claim Form, Peggins stated that he was
earning $200 per week prior to the shooting. However, at trial,
Peggins conceded that he really had not been working
consistently. Although appellant had been giving him some
money, Peggins estimated that it amounted to perhaps $100 per
week.

                                 - 8 -
          Husband and wife shall be competent
          witnesses to testify for or against each
          other in all civil actions; provided that
          neither husband nor wife shall, without the
          consent of the other, be examined in any
          action as to any communication privately
          made by one to the other while married, nor
          shall either be permitted, without such
          consent, to reveal in testimony after the
          marriage relation ceases any such
          communication made while the marriage
          subsisted.

Code § 8.01-398 (emphasis added). 4    "Such communications include

'all information or knowledge privately imparted and made known

by one spouse to the other by virtue of and in consequence of

the marital relation.'"   Edwards v. Commonwealth, 20 Va. App.

470, 474, 457 S.E.2d 797, 799 (1995); Osborne v. Commonwealth,

214 Va. 691, 692, 204 S.E.2d 289, 290 (1974); Menefee v.

Commonwealth, 189 Va. 900, 912, 55 S.E.2d 9, 15 (1949).


     4
       The Commonwealth's attorney's sua sponte invocation of
"immunity" confused the spousal immunity privilege with "the
separate and distinct rule of evidence governing confidential
communications between husband and wife." Stewart v.
Commonwealth, 219 Va. 887, 893, 252 S.E.2d 329, 333 (1979).
Under the former, a witness spouse cannot be compelled to
testify against a defendant spouse at trial. Pursuant to the
statute, however, the privilege rests with the testifying
spouse, not the defendant spouse. See Code § 19.2-271.2; Turner
v. Commonwealth, 33 Va. App. 88, 531 S.E.2d 619 (2000).
Therefore, neither the Commonwealth nor Peggins had the right to
invoke the spousal immunity if Shelton was willing to testify.
See Turner, 33 Va. App. at 95, 531 S.E.2d at 622 ("the
legislature [has] eliminated the defendant spouse's privilege to
bar the witness spouse from testifying against the defendant,
while preserving in the witness spouse the privilege to avoid
compelled testimony, subject to certain statutory exceptions").
Additionally, the excluded testimony was not "against" the
defendant at trial. Thus, the spousal privilege claimed is
inapposite.


                               - 9 -
     Assuming without deciding that the statement was a

privileged marital communication, we hold the privilege was

waived in this case.   "Like all privileges, the husband-wife

communications privilege can be waived."    Charles E. Friend, The

Law of Evidence in Virginia, § 7-2 (4th ed. 1993); see also

Osborne, 214 Va. 691, 204 S.E.2d 289.     During cross-examination,

appellant asked Peggins, without objection, whether he told

Shelton he was fighting with appellant and was "getting the

better" of appellant when he was shot.    Peggins replied, "No,

nobody is going to fight with a man with a loaded .357 in his

pocket."   Neither Peggins nor the Commonwealth 5 asserted the

privilege when appellant posed the question.    Instead, Peggins

answered the question and denied he made such a statement to

Shelton.   By answering the question rather than invoking his

privilege, Peggins waived the privilege.     See Osborne, 214 Va.

691, 204 S.E.2d 289.   Once Peggins denied making the statement,

appellant had the right to make the same inquiry of Shelton and

elicit testimony about the victim's statement to her that

undermined his testimony at trial.     Accordingly, it was error

for the trial court to exclude from evidence Shelton's testimony

regarding Peggins' account of the fight.




     5
       Because appellant did not raise the issue at trial, we do
not address whether the Commonwealth had standing to raise the
marital communication privilege.

                              - 10 -
                         IV.   Harmless Error

     The Commonwealth argues that any error at trial was

harmless because the evidence appellant sought to introduce was

merely cumulative and could not have affected the verdict.    We

disagree.

     We must reverse a criminal conviction 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

the verdict if we can determine, without usurping the jury's

fact finding function, that, had the error not occurred, the

verdict would have been the same.     Hanson v. Commonwealth, 14

Va. App. 173, 190, 416 S.E.2d 14, 24 (1992) (internal quotations

omitted).   "The effect of an error on a verdict varies widely

depending upon the circumstances of the case.    Each case must,

therefore, be analyzed individually to determine if an error has

affected the verdict."    Lavinder v. Commonwealth, 12 Va. App.

1003, 1009, 407 S.E.2d 910, 913 (1991) (internal citations and

quotations omitted).   "In criminal cases, the requirement of

proof beyond a reasonable doubt is a constitutional requirement

of due process."   Id. at 1007, 407 S.E.2d at 912.   The error is

harmless only if we can say beyond a reasonable doubt that the

error did not affect the verdict.

     The excluded evidence was offered to show Peggins' motive

to fabricate his testimony and to highlight prior inconsistent

statements.   While there was testimony that Peggins was "a

                                - 11 -
compulsive liar" and that he had "a very short temper," we

cannot say that the excluded evidence of a specific financial

motive to lie in this case would have the same weight as the

more general statement that Peggins lied on other occasions.

Moreover, Shelton's proffered testimony corroborated appellant's

version of the events surrounding the fight, showing Peggins as

the aggressor and the shooting to be accidental.   Specifically,

Shelton's testimony corroborated appellant's statement that

Peggins struck him and knocked him to the ground when the two

went outside and that Peggins "was stomping on" appellant

immediately before the shot was fired.   Without usurping the

jury's fact finding function, we cannot say that this evidence

would not have changed the verdict in the instant case.

Accordingly, we reverse and remand the case to the trial court

for a new trial if the Commonwealth be so advised.

                                            Reversed and remanded.




                             - 12 -
