                     COURT OF APPEALS OF VIRGINIA


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


DAVID W. FOGG
                                           MEMORANDUM OPINION * BY
v.   Record No. 3062-00-2                JUDGE JAMES W. BENTON, JR.
                                                MAY 28, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Carolyn V. Grady (Epperly, Follis & Schork,
          P.C., on brief), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Randolph A. Beales, Attorney General
          on brief), for appellee.


     A jury convicted David W. Fogg of second-degree murder and

use of a firearm in the commission of that murder.   Fogg contends

the trial judge erred in (i) limiting his attorney's

cross-examination of adverse witnesses and (ii) instructing the

jury on modus operandi.    For the following reasons, we reverse

Fogg's convictions and remand for a new trial.

                                I.

     The indictment alleged that David Fogg murdered Darryl

Adkins in the first degree in violation of Code § 18.2-32.     At

trial, the evidence proved Darryl Adkins was killed by a gunshot


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
on October 20, 1998, when he left a residence on Wainwright

Drive after 11:00 p.m.

     The trial evidence was based in significant part on the

testimony of convicted felons.    Joseph Rouse testified for the

Commonwealth that on October 20, 1998 he was at Fogg's home when

Fogg said Adkins owed Fogg money.    Rouse testified Fogg was

angry and said he "was . . . going to try to look [Adkins] up."

Rouse also testified that Vernon Ripley was at Fogg's home on

October 20, that Ripley used his car several times that day

because Ripley's car was in disrepair, and that Ripley also

asked to use Rouse's car so that he could find Adkins.

     Rouse admitted he had been a drug dealer and testified that

on October 20 he was on probation for committing felonies and

was wanted by law enforcement because he had violated probation.

He also testified that he was high on cocaine most of the day.

Rouse spoke to the police about Adkins's murder after he was

arrested on an unrelated offense on January 3, 1999.   Although

Rouse testified that the Commonwealth had not offered him any

help or made any promises, he testified that he wanted some help

"[i]f somebody will give him some help," that he had been

convicted of three or four felonies, and that he also had

charges that were pending.   The prosecutor stipulated that the

Commonwealth's Attorney had telephoned the Commonwealth's

Attorney in Chesterfield County and informed him that Rouse

would be testifying as its witness in this murder trial.

                                 - 2 -
     William Hagy testified he had known Fogg for approximately

three and a half years and that he would go to Fogg's home to

"sit around and smoke crack" with Fogg.   He testified he and his

brother, James Hagy, went to Fogg's home on the night of October

20 to buy cocaine.   He recalled that Fogg, Ripley, Barry McGee,

and Wendy Bright were at Fogg's home that night and that Fogg

was "arguing, bickering" with someone on the phone, saying he

wanted his money.    When Fogg asked him to drive Ripley

someplace, he declined because Ripley had a gun.   He described

Ripley as "a strong man," who "collected money for [Fogg] if

somebody owed him money."   Later, he heard Fogg tell Bright and

Ripley "to go take care of what they had to take care of."   When

he and his brother left the house about 11:40 p.m., Ripley and

Bright departed in the direction of Wainright Drive, with Bright

driving.   He testified that when he returned to Fogg's home the

following day, Bright was there.   Fogg remarked that "his boy

took care of his job."

     When asked by the prosecutor whether the Commonwealth had

done anything for him, he responded, "no, sir."    He testified,

however, that he did expect some help with his sentences and

admitted, on cross-examination, that he had been convicted of

nineteen felonies.   Fogg's attorney introduced a letter written

by the prosecutor to Commonwealth's Attorneys in ten

jurisdictions indicating that both William and James Hagy were

cooperating in the murder prosecution and asking for

                                - 3 -
"consideration in [the] ultimate dispositions" of their pending

charges.   Fogg's attorney also introduced a letter William Hagy

had written to the prosecutor expressing his concern about "what

is happening with getting [his prison sentences] reconsidered to

be run concurrent" and indicating his understanding that a judge

could not reconsider his sentence after he is sent from jail to

the penitentiary.   When asked whether his cases had been

delayed, he answered, "No.   I have a whole bunch of cases."     He

further admitted he was serving sentences of approximately fifty

years and that he had cases pending in Essex, King William,

Gloucester, Charlottesville, Powhatan, and Richmond.

     When Fogg's attorney asked if his two bad check charges

were dismissed after testifying before the grand jury, the

prosecutor objected.   The trial judge ruled that, if the

evidence did not show the charges were dismissed by an

agreement, the inquiry was improper.    In response to the judge's

question whether he had an agreement that the prosecutor would

dismiss those cases if he testified, Hagy responded "no, sir."

The judge sustained the objection.

     James Hagy testified that on October 20 he heard Fogg on

the telephone yelling at "Darryl" that "he had to have his

money."    He testified that shortly after the telephone

conversation ended, Fogg told Ripley, "ya'll go take care of

that."    He testified that he and his brother refused to take

Ripley in their vehicle because they "wanted to go smoke [their]

                                - 4 -
crack" and because Ripley was "the enforcer" who collected money

for Fogg.   He testified that Bright was at Fogg's house when he

returned the next day and she looked scared.    He also testified

that Fogg remarked that his "boy did his job" and that months

later, while in jail, Fogg remarked again that Ripley had "done

his job."

     James Hagy also testified that the Commonwealth had

promised him "[a]bsolutely nothing."     He testified, however,

that he was "hoping" for help.    He admitted that he has been

convicted of twelve felonies and fourteen misdemeanors involving

lying, cheating, or stealing.    When Fogg's attorney sought to

question him about cases that were dismissed and continued and

charges that were reduced after he testified before the grand

jury, the prosecutor objected and argued that Fogg's attorney

could not establish "the fact that [the prosecutors] were

involved in any of the charges."    The judge again ruled that

Fogg's counsel first must establish a promise was made.

     Barry McGee testified that he and Adkins were best friends

and that they often went to Fogg's house to use cocaine.    On the

afternoon of October 20, he telephoned Adkins from Fogg's house

and informed him that Fogg wanted to be paid immediately.    He

testified that when Fogg joined that conversation and angrily

said he wanted his money, Adkins said he would pay Fogg later

that day.   McGee testified he left Fogg's house, found Adkins,

and warned him to pay Fogg.   McGee testified that he returned to

                                 - 5 -
Fogg's home later that evening and told Fogg that Adkins was

around the corner and was coming to pay the money.    Later, he

heard Fogg say to Ripley and Bright "go ahead and take care of

that."   McGee testified that Ripley, who was Fogg's "collector"

and "somebody not to mess around with," departed with Bright in

the direction of Wainwright Drive.     They left in a sport utility

vehicle at the same time the Hagy brothers left in a sport

utility vehicle.   He testified that he saw Bright at Fogg's home

the next morning and that she was "real nervous, hysterical,

crying, something is really wrong."

     McGee testified that he was arrested two months after

Adkins's murder for a cocaine offense and admitted that he had

been convicted of felonies related to drug use.    He spoke with

the police about Adkins's murder in April of 1999 after he was

arrested for a second cocaine offense.    McGee also testified

that he had not been offered a deal by the Commonwealth but

agreed that six days after he testified in the Commonwealth's

case against Ripley, he pled guilty on his second charge of

possession of cocaine and received a two-year sentence, with one

year and eleven months suspended.

     Columbus Sandifer, who had been convicted of approximately

ten felonies, testified that he was in the Richmond City Jail

with Fogg and that he overheard Fogg saying that "[h]e sent an

individual to go and collect some money for him and he come back



                               - 6 -
and he said his boy took care of it."   Sandifer testified that

the Commonwealth had not promised him anything for testifying.

     A boy, who was eleven years old at the time of the

shooting, testified that after 11:00 p.m. on October 20, he saw

a sport utility vehicle stop by a man who was walking on

Wainwright Drive.   A man exited the driver's side of the vehicle

and, after a "couple of seconds" of arguing, shot the man who

was walking.   He did not see the face of the shooter but

testified that the shooter wore a puffy jacket, which he

identified to be similar to a photograph of a jacket Ripley

often wore and was wearing on October 20.   He identified the

type of vehicle as similar to Bright's vehicle, and he testified

that he saw a person run from the vehicle before the shooter

entered the vehicle and drove away.

     An adult, who resided on Wainwright Drive, testified that

she heard an argument at around 11:30 p.m. and went to the front

door of her home.   She saw two men "talking loud," saw a man

exit a sport utility vehicle, and saw him shoot Adkins.     She

then saw a person run from the vehicle before the shooter

entered the vehicle and drove away.    She described the shooter's

height, weight and race, and she testified that the shooter

appeared to be the person depicted in the photograph of Ripley.

She testified that after the vehicle drove away, she saw a white

car, which she had seen Fogg drive on past occasions, drive by

her house.

                               - 7 -
     At the conclusion of this evidence, Fogg presented

evidence, including his testimony that he "was passed out" on

October 20 and that McGee, Rouse, and the Hagy brothers were not

at his house on October 20.   Although he testified his house was

"a crack house," he denied that Ripley collected debts for him.

He also testified that Adkins owed him $30 only because he did a

favor for Adkins and paid that amount to another man who had

Adkins's saw.   He denied being involved in the murder and

testified that McGee told him of Adkins's murder.   Fogg is a

convicted felon.

     William Moore, a convicted felon, testified that in June

2000 he heard James and William Hagy "say that they were going

to get their time to run concurrent for testifying against

[Fogg] saying he murdered somebody."    Jacob Aquino, another

convicted felon, testified that Rouse told him that the Hagy

brothers were trying to get him to testify about something he

"didn't know anything about."   Aquino also testified that the

Hagy brothers told him they had a "sweet" deal where they would

get "four and a half years" instead of twenty they had received.

     At the conclusion of the evidence, the jury convicted Fogg

of second degree murder and use of a firearm in the commission

of murder.   This appeal followed.

                                II.

     Fogg contends that the trial judge erred in ruling that his

attorney could not question the Commonwealth's witnesses

                                - 8 -
regarding pending and dismissed cases until he established that

an agreement existed between those witnesses and the

Commonwealth's Attorney.   The Commonwealth contends the trial

judge did not abuse his discretion in limiting cross-examination

and contends further that any error made by the trial judge was

harmless.

     "Cross-examination is an absolute right guaranteed to a

defendant by the confrontation clause of the Sixth Amendment and

. . . is '[o]ne of the most zealously guarded rights in the

administration of justice.'"    Clinebell v. Commonwealth, 235 Va.

319, 325, 368 S.E.2d 263, 266 (1988) (citation omitted).    It is

a right that is "fundamental to the truth-finding process."      Id.

Thus, the Supreme Court has held that "[a]n accused has a right

to cross-examine prosecution witnesses to show bias or

motivation and that right, when not abused, is absolute."     Brown

v. Commonwealth, 246 Va. 460, 464, 437 S.E.2d 563, 564-65

(1993).

            Where the purpose of the inquiry is to
            impeach a witness' veracity,
            cross-examination concerning a witness'
            prior convictions is limited to prior felony
            convictions and convictions for misdemeanors
            involving moral turpitude. However, it is
            error to apply the principles governing
            cross-examination for purposes of impeaching
            a witness' veracity to limit
            cross-examination designed to demonstrate a
            witness' bias or motive to testify.

Scott v. Commonwealth, 25 Va. App. 36, 41, 486 S.E.2d 120, 122

(1997) (emphasis added).   "Although a trial [judge] may exercise

                                - 9 -
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).

     The record clearly establishes that Fogg's attorney's

questioning of James and William Hagy about their convictions

and the resulting dispositions concerned bias and motive to

testify rather than veracity.    Furthermore, the proffered

testimony in this case established that Fogg's attorney was

seeking to show the witnesses' bias.     Fogg's attorney proffered

evidence that William Hagy had approximately forty-eight charges

pending when he first spoke with the Commonwealth concerning the

murder.   About nineteen of those charges had been nolle prossed,

and two had been reduced from felonies to misdemeanors.    The

proffered evidence also indicated that James Hagy had

approximately twenty-seven charges pending when he first spoke

to the Commonwealth concerning the murder.    Ten of his charges

had been nolle prossed, and three had been reduced from felonies

to misdemeanors.   In addition, both witnesses had several

pending criminal cases that had been continued during this time.

     In Brown, defense counsel attempted to cross-examine a

witness on unadjudicated crimes to prove the witness' bias and

motive to testify.   The Supreme Court held that the defense "was

entitled to cross-examine [the witness] in an effort to

                                - 10 -
establish that his testimony was motivated by a bargain for

leniency relating to the charges pending against him,

particularly since [the witness] admitted that the trial of

those charges had been continued each month since the date of

his arrest."   Brown, 246 Va. at 464, 437 S.E.2d at 565.

     The Commonwealth argues that the trial judge did not err in

this case because there was no evidence of an agreement.   The

proffered evidence, however, was a sufficient basis from which

the jury could infer that an agreement had been reached and was

therefore relevant to the issue of the witnesses' bias and

motive to testify.   Indeed, Fogg's attorney introduced a letter

written by the prosecuting Commonwealth's Attorney's office to

the Commonwealth's Attorneys in ten jurisdictions.    In the

letter, the Commonwealth's Attorney explained that both William

and James Hagy "continue to cooperate . . . in an on-going

murder investigation" and that "they may be called as witnesses

for the Commonwealth if and when [an] indictment is obtained."

In pertinent part, the letter also indicated: "While I am aware

of the extensive charges they currently have in your

jurisdictions, I hope that their cooperation here will be given

some consideration in their ultimate dispositions."    The jury

certainly could have inferred from this evidence that an

agreement existed between the Commonwealth and the witnesses

that bore on the issue of bias and motive.



                              - 11 -
        Had the jury been privy to the number of charges pending

against the Hagy brothers, the jury may have discredited the

testimony of both witnesses.    Given this potential effect, we

cannot say the trial judge's error in limiting defense counsel's

cross-examination was harmless.

             "[B]efore a federal constitutional error can
             be held harmless, the court must be able to
             declare a belief that it was harmless beyond
             a reasonable doubt;" otherwise the
             conviction under review must be set aside.
             This standard requires a determination of
             "whether there is a reasonable possibility
             that the evidence complained of might have
             contributed to the conviction." In making
             that determination, the reviewing court is
             to consider a host of factors, including the
             importance of the tainted evidence in the
             prosecution's case, whether that evidence
             was cumulative, the presence or absence of
             evidence corroborating or contradicting the
             tainted evidence on material points, and the
             overall strength of the prosecution's case.

Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209

(1999) (citations omitted).

        A critical issue at trial was whether Fogg had directed

Ripley to collect a debt from Adkins.    On this point, William

and James Hagys' testimony bolstered McGee's testimony that he

overheard Fogg tell Ripley and Bright to "take care of" a matter

and Sandifer's testimony that Fogg sent someone to collect a

debt.    The fact that this testimony was corroborated by the

testimony of both James and William may have persuaded the jury

to believe both Sandifer's and McGee's statements.



                                - 12 -
     In Lilly, the Supreme Court of Virginia determined that not

permitting the defense to cross-examine a witness whose

statement was entered against the defendant was not harmless

error because, without this corroborating evidence on a critical

point at issue, the Commonwealth had only one remaining witness

whose credibility was significantly challenged.   258 Va. at

553-54, 523 S.E.2d at 210.   Similarly, without the testimony of

the Hagy brothers, the Commonwealth's case would have rested

substantially on the testimony of McGee and Sandifer, convicted

felons, whose testimony was in conflict with Fogg's account of

that evening.   In addition, only James Hagy testified that Fogg

mentioned Adkins's name immediately prior to directing Ripley to

"go take care of that."   This testimony provided the critical

link in the Commonwealth's theory that Fogg's statement

concerned Adkins.

     When Fogg's attorney sought also to explore the witnesses'

bias and personal interest in implicating Fogg, he "was entitled

to reveal to the jury the full weight of any pressures brought

to bear on [a witness], at the time he testified, which might

motivate him to depart from the truth."   Hewitt v. Commonwealth,

226 Va. 621, 623, 311 S.E.2d 112, 114 (1984).   If the jury had

heard the proffered testimony, the jury could have inferred that

the Hagys' motivation for testifying was leniency in the

overwhelming number of cases currently pending against them.



                              - 13 -
Thus, the jury may have disbelieved their account of what

transpired.

     The proffered evidence was neither repetitious nor

cumulative.   We cannot say beyond a reasonable doubt that the

jury would have convicted Fogg without the testimony of James

and William Hagy.   Accordingly, we conclude that the trial

judge's error in restricting cross-examination of the

Commonwealth's witnesses was not harmless error.

                               III.

     Fogg additionally contends that, because no evidence of

modus operandi was proved at trial, the judge erred in giving

the jury an instruction referring to the "unique nature of the

method of committing the crime."   The Commonwealth contends the

objection was waived and the instruction is a correct statement

of the law.

     The trial judge instructed the jury as follows:

          You may consider evidence that the defendant
          committed an offense or offenses other than
          the offense for which he is on trial only as
          evidence of the following: defendant's
          motive, malice, intent, scheme or plan,
          premeditation, the unique nature of the
          method of committing the crime charged in
          connection with the offense for which he is
          on trial conduct and the defendant's
          feelings towards Daryl Adkins and relations
          between them and for no other purpose.

     At trial, Fogg's attorney objected and said that the

instruction concerning evidence of other crimes "can't be

introduced about the unique nature or method of committing the

                              - 14 -
crime.   That's modus operandi . . . .   There is nothing unique

about this offense."   The trial judge allowed the instruction

concluding that "[t]here is a theory of this case that he had an

enforcer to collect the drug debts."     Both the objection and

ruling addressed the precise issue now raised.

     "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"   Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (citation omitted).    In the case at bar,

the jury was instructed that they could "consider evidence that

[Fogg] committed an offense or offenses other than the offense

for which he [was] on trial . . . as evidence of . . . the

unique nature of the method of committing the crime charged."

     The issue of modus operandi may be raised where "there is a

disputed issue of identity" and evidence of other crimes is

offered in an attempt to establish that the crimes are

sufficiently idiosyncratic to permit a logical inference that

there was a common perpetrator.   Johnson v. Commonwealth, 259

Va. 654, 677, 529 S.E.2d 769, 782 (2000).    The evidence in this

case contained no proof of other crimes that would permit such

an inference and, thus, it raises no issue of modus operandi.

The trial judged erred in instructing the jury concerning the

"unique nature of the method of committing the crime."    The jury

could have improperly applied this instruction, misunderstanding

                              - 15 -
that the evidence proved a unique offense if it believed Ripley

was an "enforcer" of debts.

                               IV.

     For these reasons, we reverse both convictions and remand

for a new trial consistent with this opinion.

                                        Reversed and remanded.




                              - 16 -
