                     COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia

TROY CAPLE
                                            MEMORANDUM OPINION * BY
v.   Record No. 0250-00-2                 JUDGE JAMES W. BENTON, JR.
                                              SEPTEMBER 25, 2001
COMMONWEALTH OF VIRGINIA

             FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       Margaret P. Spencer, Judge

             James T. Maloney (Joseph D. Morrissey;
             Morrissey & Hershner, on brief), for
             appellant.

             John H. McLees, Jr., Senior Assistant
             Attorney General (Mark L. Earley, Attorney
             General, on brief), for appellee.


     A jury convicted Troy Caple of voluntary manslaughter and

possession of a firearm while under the age of eighteen.      Caple

contends the trial judge erred by denying him the right to

cross-examine a witness to establish bias and motive to

fabricate. 1   For the reasons that follow, we hold that the error

was harmless, and we affirm the convictions.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Caple's brief also presented for review the issue of the
sufficiency of the evidence to support the convictions. The
Commonwealth's brief responded to that issue. The record
establishes, however, that this Court's October 6, 2000 order
granted an appeal only with respect to the issue "[w]hether
[the] trial court erred in denying petitioner the right to
cross-examine a witness as to bias and motive to fabricate." It
denied an appeal on the sufficiency issue "for the reasons set
forth in the order of this Court dated July 28, 2000." We
address only the issue granted for appeal.
                                  I.

     JaQuan Ellis was shot outside a nightclub on July 19, 1998,

and died from a gunshot wound that severed blood vessels in his

abdomen.   Near his body, the police recovered a cartridge casing

which was ejected from an automatic nine millimeter firearm.

     The Commonwealth's case-in-chief included the testimony of

three convicted felons.   Shawn Harris, who was incarcerated on a

federal firearm offense at the time of trial, testified that he

was to be released from the federal prison within a month and then

was scheduled to begin serving a state prison sentence for an

unlawful wounding conviction.    He had been told that his testimony

"could help" reduce the period of imprisonment he was to serve for

the state conviction.

     Harris testified that he and his friend, Troy Caple, were in

the vicinity of a nightclub on Saturday night, or early morning

July 18, when they were attacked by other young men.   As he and

Caple engaged in a fistfight with the men, he heard a gunshot.

Harris saw everyone fleeing, and he fled after he saw a young man

fall near Caple.   A deputy sheriff, who heard the gunshot,

detained Harris a short distance from the nightclub and seized a

thirty-eight caliber revolver.    Harris testified that he had the

revolver during the fight but that he did not display or fire it.

He denied having another firearm and said he did not see Caple

shoot anyone.   The police tested Harris' hands for gunpowder

residue after his arrest and found none.   The evidence proved

                                 - 2 -
Harris' revolver had bullets in each chamber and had not been

fired.

     Damian Johnson, who was serving a nine-year sentence in a

federal prison for a narcotics conviction, testified that he was

near the nightclub that same night.       He saw Caple and Harris, both

of whom he has known for many years, in a fistfight with other

young men.    He testified that Caple stepped back from the fight,

displayed a firearm, and fired it.       Johnson testified that he did

not know whether Caple shot anyone.

     Although Johnson testified that he had received no offers of

assistance for his testimony, he admitted he had not told the

police about the shooting until after he had been arrested for the

narcotics charge.     He also testified that he received a reduction

in his federal sentence for his assistance in the federal

prosecution against his codefendant and he was aware that he was

eligible to petition for a further reduction of his federal

sentence.

     During cross-examination by Caple's attorney, Johnson

testified as follows:

             Q: Before you were arrested, you had heard
             all about this offense, hadn't you?

             A:   Yeah.

             Q: It was kind of the talk of the
             neighborhood, right?

             A:   Yeah.




                                 - 3 -
             Q: And different people had told you what
             they had seen happening down there at the
             Flood Zone, hadn't they?

             A:   No.   I just kept hearing things.

             [PROSECUTOR]: I'm going to object to
             anything he's heard, Judge. Hearsay.

             [JUDGE]:   Sustained.

     At a bench conference, Caple's attorney told the judge the

testimony was not offered for its truth but to prove an

alternate source for Johnson's knowledge of the incident and to

show Johnson falsified his testimony about his personal

observation.      The trial judge ruled that it was hearsay and

disallowed any further inquiry.        Later, out of the presence of

the jury, Caple's attorney made a proffer of Johnson's

testimony.

     Avery Miles, who was serving a sentence in a federal prison

for conspiring with his cousin, Johnson, to distribute crack

cocaine, testified that he received a telephone call from Caple

at 1 or 2 o'clock the morning of July 19.         Caple, whom he had

known about three years at that time, asked if he had seen

Harris, who was also Miles' friend.          When Miles said he had not,

Caple replied he would explain later why he wanted Harris.         That

evening, Caple went to Miles' home and told Miles that he and

Harris had been attacked by some people near the nightclub.

Miles testified that Caple said he had fired a Glock nine

millimeter handgun, which jammed after he fired one shot.



                                     - 4 -
     Miles testified that before Caple called him he had heard

about the incident.   Miles also testified that he talked to

Johnson about the shooting a few days after it happened and that

he had not talked to Johnson about it again because Johnson had

been arrested and was in jail.    Miles was aware he could still

petition for a reduction of his federal sentence and said "it's

possible" his testimony would help reduce his sentence if he was

truthful.

     Caple testified and denied shooting Ellis.    He said he was

at home at the time the incident occurred.   His mother and

father also testified that Caple lived at home and was required

to observe a midnight curfew on weekends.    Other witnesses

testified as to Caple's reputation for truthfulness and good

character.   Witnesses also testified about the bad reputations

of the prosecution's witnesses.

     The jury acquitted Caple of the charge of second degree

murder and convicted Caple of the lesser offense of voluntary

manslaughter.   The jury also convicted him of possessing a

firearm while he was under the age of eighteen.

                                  II.

     Caple contends the trial judge erred in denying him the

right to cross-examine Johnson as to bias and motive to

fabricate his testimony.   He relies upon the Supreme Court's

holding "that the right of an accused to cross-examine

prosecution witnesses to show bias or motivation, when not

                                 - 5 -
abused is absolute."   Hewitt v. Commonwealth, 226 Va. 621, 623,

311 S.E.2d 112, 114 (1984).       See also Barker v. Commonwealth,

230 Va. 370, 376, 337 S.E.2d 729, 733 (1985).         The Commonwealth

concedes that the testimony Caple sought to prove, which was

proffered for the record, was admissible as an exception to the

hearsay rule.

             The hearsay rule does not operate to
          exclude evidence of a statement, request, or
          message offered for the mere purpose of
          explaining or throwing light on the conduct
          of the person to whom it was made.

          *      *         *        *      *      *        *

             "Wherever an utterance is offered to
          evidence the state of mind which ensued in
          another person in consequence of the
          utterance, it is obvious that no assertive
          or testimonial use is sought to be made of
          it, and the utterance is therefore
          admissible, so far as the hearsay rule is
          concerned."

Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670-71

(1960) (citation omitted).      The Commonwealth contends, however,

that although the testimony was admissible for the purpose

offered, the error in excluding it was harmless.        We agree.

     To prove Johnson had fabricated his testimony about seeing

Caple shoot a gun, Caple's attorney sought to elicit testimony

at trial that Johnson had another source of information

concerning the shooting.       After the trial judge sustained the

prosecutor's hearsay objection, Caple's attorney made an offer

of proof, out of the presence of the jury, to establish the



                                   - 6 -
nature of the excluded testimony.     Johnson's proffered testimony

includes the following:

          Q: All right. I was asking you, at one
          point, whether or not you had discussed this
          case with other people before making a
          statement to the police.

          A:   Okay.

          *      *        *       *       *     *      *

          Q: Talked to any friends out on the street
          or anybody about the case?

          A: When I was out on the streets, somebody
          told me about it.

          Q:   Okay.   Who told you about it?

          A:   My cousin.     I think my cousin told me.

          Q:   And who's your cousin?

          A:   Avery [Miles].

          Q:   What did [Miles] tell you?

          A: He just told me that [Caple] killed the
          dude.

          Q: Okay.     Did he give you any facts about
          the case?

          A:   No.

          Q:   Did he tell you what time or where?

          A:   No.

          Q:   He never told you what time?

          A:   He told me where.

          Q: He told you it was [in the area of the
          nightclub]?

          A:   Yeah.



                                  - 7 -
             Q: Did he tell you it was around 2 o'clock
             in the morning?

             A:   No, I already knew that.

             Q: But he didn't give you any facts other
             than that?

             A:   No.

             Q: If you already knew it, why did you go
             in to talk to him about it?

             A: He just told me [Caple] killed a dude
             down in [the area of the nightclub].

     As the Supreme Court held in Hewitt, "the right . . . to

cross-examine prosecution witnesses to show bias or motivation

. . . rests upon the constitutional right to confront one's

accusers."    226 Va. at 623, 311 S.E.2d at 114.   The judge's

error in denying this right to cross-examine is subject to

harmless analysis.      Williams v. Commonwealth, 32 Va. App. 395,

399, 528 S.E.2d 166, 168 (2000) (en banc).     "Whether . . . an

error is harmless in a particular case depends upon a host of

factors, . . . includ[ing] the importance of the witness'

testimony in the prosecution's case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted, and, of

course, the overall strength of the prosecution's case."

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).




                                  - 8 -
     Although the excluded testimony contains some details that

Johnson's trial testimony lacked, Johnson had testified before

the jury about the significant facts that this proffer sought to

establish.    During cross-examination at trial, Johnson testified

as follows:

             Q: Before you were arrested, you had heard
             all about this offense, hadn't you?

             A:   Yeah.

             Q: It was kind of the talk of the
             neighborhood, right?

             A:   Yeah.

             Q: And different people had told you what
             they had seen happening down there at the
             Flood Zone, hadn't they?

             A:   No.   I just kept hearing things.

     In short, the jury learned from Johnson's trial testimony

that he had heard of the incident from other sources prior to

his report to the police.      Caple's argument at trial and in his

brief on appeal is that the excluded testimony was essential for

the jury "to evaluate the very real possibility that Johnson

gained his information, not from witnessing the [homicide], but

from hearing about it from 'rumors on the street.'"      Clearly,

the jury had testimony from Johnson upon which Caple could have

argued that very fact.      Indeed, in his closing statement to the

jury, Caple's attorney asserted that Johnson and Miles knew each

other before the shooting and further asserted the following:




                                   - 9 -
          [Johnson and Miles] knew what was being said
          out on the street, and it wouldn't be beyond
          them to make up things to try to get . . .
          [a sentence] reduction in court. . . .

          *      *      *        *       *      *      *

          [Johnson] says Troy Caple did so and so,
          because he's trying to get a bond in Federal
          court. We don't even know that he was out
          there. He may have heard from . . . Miles
          or from someone else when it happened out in
          their neighborhood or where they frequently
          visit and made the whole thing up just to
          try to get a reduction or to get a bond in
          Federal court.

     We hold that the erroneously excluded evidence was

repetitious and cumulative of Johnson's trial testimony and that

its impeachment value, when viewed in light of his other

testimony at trial, was negligible.     The jury was aware that

Johnson had heard of the incident, and the jury had ample other

evidence to warrant the jury in rejecting Johnson's testimony if

it was inclined to so do.    Thus, we hold that the excluded

evidence was so insubstantial when compared to Johnson's trial

testimony that the judge's error in excluding it was harmless

beyond a reasonable doubt.    See Dearing v. Commonwealth, 260 Va.

671, 673-74, 536 S.E.2d 903, 904 (2000).

     Accordingly, we hold that the evidentiary ruling was not

reversible error, and we affirm the convictions.

                                                           Affirmed.




                               - 10 -
