                      COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia


JAVON LYDELL BOOKER
                                            MEMORANDUM OPINION * BY
v.   Record No. 2511-00-2                 JUDGE ROSEMARIE ANNUNZIATA
                                               JANUARY 15, 2002
COMMONWEALTH OF VIRGINIA


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

          James F. Sumpter for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Javon Lydell Booker appeals his convictions, after a jury

trial, for shooting into an occupied vehicle, malicious wounding,

using a firearm in the commission of malicious wounding, and

possession of a firearm by a convicted felon.        He contends that

the trial court abused its discretion by refusing to allow

defense counsel to question a Commonwealth's witness about

charges pending against her.     For the reasons that follow, we

affirm his convictions.

     On appeal, we view the evidence and all reasonable

inferences that may be drawn therefrom, in the light most

favorable to the Commonwealth, the party prevailing below.
Winckler v. Commonwealth, 32 Va. App. 836, 844, 531 S.E.2d 45, 49


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(2000).    The following facts are relevant to this appeal.

     On October 9, 1999, Antonio Winston (Antonio) and Calvin

Winston (Calvin) purchased heroin from Javon Lydell Booker and

got back into their vehicle.    Booker walked to the vehicle,

pulled a chrome automatic handgun from his shirt, held it through

the car window to Antonio's head and pulled the trigger.      He ran

to the rear of the car and continued to shoot, striking Antonio

in the knee and shooting Calvin several times in the back.

Booker fired approximately ten shots, stopping when his gun

jammed.    Antonio unequivocally identified Booker as the shooter.
     The evening of the shooting, Orriania Harris was standing

outside her home across the street from the crime scene.      She saw

Booker talking to two men. 1   After the two men returned to the

vehicle, Harris heard shots being fired.    She turned and saw

Booker shooting into the back of the vehicle.

     Harris identified Booker at the preliminary hearing as the

shooter, and testified that she never saw anyone else shoot.       At

a bench conference held out of the hearing of the jury, defense

counsel proffered his intent to cross-examine Harris about a May

5, 2000 charge against her for possession of cocaine with the

intent to distribute.    He contended that the charge affected her




     1
         Harris knew Booker because he had grown up with her son.
                                - 2 -
credibility and demonstrated that she dealt drugs in competition

with Booker, which provided a motive to falsify her testimony

against him.

     A preliminary hearing on Harris' charge had not yet been

held, and she had not been offered a "deal" in exchange for her

testimony.   The trial court ruled that because Harris had not

been offered a "deal" and because she had not yet been convicted,

her pending charge was not admissible and the desired cross-

examination was precluded.
     Booker contends that the trial court erred in refusing to

permit him to question Harris about the charge. 2   We disagree.


     2
       On appeal, Booker also argues that our ruling in Banks v.
Commonwealth entitled him to cross-examine Harris. 16 Va. App.
959, 434 S.E.2d 681 (1993). In Banks, we held that evidence of
specific acts of misconduct for which there is no criminal
conviction may be admissible if defendant's proffered evidence
reasonably demonstrates a strong bias or motive to fabricate.
Id. at 963-64, 434 S.E.2d at 683-84. "When, however, an
objection is sustained and a party's evidence is ruled
inadmissible, as in this case, the party must proffer or avouch
the evidence for the record in order to preserve the ruling for
appeal; otherwise, the appellate court has no basis to decide
whether the evidence was admissible." Lockhart v. Commonwealth,
34 Va. App. 329, 340, 542 S.E.2d 1, 6 (2001) (internal quotation
and citation omitted). In Lockhart, the only case considering
the Banks exception, we held that we could not review the trial
court's rejection of the evidence because the defendant did not
proffer "the [witness'] expected response[s] . . . [or] any other
evidence from other sources that, if believed, would allow the
fact finder to reasonably infer that [the witness] had a motive
to falsely implicate [the defendant] . . . ." Id. Moreover, we
found that statements by defense counsel were insufficient to
provide a basis on appeal for determining the admissibility of
the testimony. Id.
     In the instant case, as in Lockhart, the proffer consists of
an argument by defense counsel without a proffer of the
supporting evidence. Booker limited his argument to enunciating
his theory that Harris was a competing drug dealer who would
falsely testify against him to eliminate the competitive threat
he posed. In the alternative, he posited the view that the
witness hoped to "strike a deal" with the Commonwealth. But,
other than the charge of possession of cocaine with the intent to
distribute that had been lodged against the witness, Booker
                              - 3 -
     The appellate courts of Virginia have consistently held that

a litigant's right to impeach the credibility of a witness by

showing her participation in criminal conduct is limited to

questions about convictions.   Ramdass v. Commonwealth, 246 Va.

413, 437 S.E.2d 566 (1993), vacated on other grounds, 512 U.S.

1217 (1994); Clark v. Commonwealth, 202 Va. 787, 790, 120 S.E.2d

270, 272 (1961); Smith v. Commonwealth, 155 Va. 1111, 1121, 156

S.E. 577, 581 (1931); Newton v. Commonwealth, 29 Va. App. 433,

449, 512 S.E.2d 846, 853 (1999); Dowell v. Commonwealth, 12 Va.

App. 1145, 1147, 408 S.E.2d 263, 264-65 (1991), aff'd on reh'g en
banc, 14 Va. App. 58, 414 S.E.2d 440 (1992).   Ignoring this

settled principle, Booker alleges that the trial court violated

his constitutional right of confrontation.   In Ramdass, the

Supreme Court rejected a similar claim:




proffered no evidence that would establish either hypothesis he
sought to advance. See Whittaker v. Commonwealth, 217 Va. 966,
969, 234 S.E.2d 79, 81 (1977) (When an objection to a question at
trial is sustained, "it [is] incumbent upon the defendant to make
the record show the expected answer [to a question]. . . . [This
may be] done by avowal of counsel."); see also Toro v. City of
Norfolk, 14 Va. App. 244, 253-54, 416 S.E.2d 29, 34-35 (1992)
(holding that unchallenged avowal by counsel of the expected
testimony is a proper proffer if it demonstrates the relevance of
the expected testimony). In this case, we have no basis for
ascertaining the relevance of the testimony counsel hoped to
elicit and, thus, no basis for reviewing the claim on appeal.
See id.; Lockhart, 34 Va. App. at 340, 542 S.E.2d at 6.
                             - 4 -
          Ramdass contends that the court erroneously
          restricted his right of cross-examination in
          refusing to permit impeachment of [adverse
          witnesses] by questioning their involvement
          in several unadjudicated crimes. It is well
          settled in Virginia that a litigant's right
          to impeach the credibility of adverse
          witnesses by showing their participation in
          criminal conduct has been confined to
          questions about a conviction for a felony,
          perjury, and a misdemeanor involving moral
          turpitude. This limitation upon a
          defendant's impeachment rights is a
          reasonably necessary measure to restrict the
          scope of a criminal trial. . . . [A]dmission
          of unadjudicated crimes for purposes of
          general impeachment of a witness would lead
          to confusion in directing the jury's
          attention to collateral matters and away
          from the issues of the case.

               Nevertheless, Ramdass claims that the
          trial court's adherence to this settled
          practice violated his confrontation rights
          under the Sixth Amendment of the United
          States Constitution and Article I, § 8 of
          the Virginia Constitution. He cites no
          authority to support such an expansive
          application of these rights, and we have
          found none. Accordingly, we conclude that
          the trial court did not err in this
          limitation of Ramdass's cross-examination.

246 Va. at 423-24, 437 S.E.2d at 572 (internal quotation and

citations omitted).   Bound by this ruling, we reject Booker's

claim and affirm the decision of the trial court.

                                                         Affirmed.




                              - 5 -
Elder, J., dissenting.

     I would hold appellant made a proffer sufficient to show

his entitlement to cross-examine Orriania Harris regarding bias

which may have motivated her falsely to identify appellant as

the shooter.   Therefore, I respectfully dissent.

     As we held in Banks v. Commonwealth, 16 Va. App. 959, 434

S.E.2d 681 (1993),

               [t]he right to cross-examine
          prosecution witnesses to show bias or
          motivation to fabricate, when not abused, is
          absolute.

                *     *     *      *      *      *     *

               Evidence of specific acts of misconduct
          is generally not admissible in Virginia to
          impeach a witness' credibility. However,
          where the evidence . . . is relevant to show
          that a witness is biased or has a motive to
          fabricate, it is not collateral and should
          be admitted. [A]ttempting to introduce
          evidence of prior misconduct, for which
          there has been no criminal conviction, to
          impeach a witness' general character for
          truthfulness differs from attempting to
          introduce such evidence to show that a
          witness is biased or motivated by
          self-interest in a particular case.

Id. at 962-63, 434 S.E.2d at 683-84 (citations and internal

quotation marks omitted).   Evidence relating to a point, such as

bias, properly at issue in the case is relevant and, therefore,

admissible "if it has any logical tendency, however slight, to

establish a fact at issue in the case."       Ragland v.

Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993)

(emphasis added); see also Charles E. Friend, The Law of
                                - 6 -
Evidence in Virginia § 11-1 (5th ed. 1999 & Supp. 2001).     A

witness' bias, like a defendant's intent, may be proved by

circumstantial evidence, such as the witness' conduct and

statements.   Long v. Commonwealth, 8 Va. App. 194, 198, 379

S.E.2d 473, 476 (1989); see also Lane v. Commonwealth, 190 Va.

58, 75, 55 S.E.2d 450, 458 (1949) (equating bias with intent in

holding admissible evidence that chief prosecution witness had

filed civil suit against defendant because "a [criminal]

conviction may have been thought favorable to a successful

prosecution of the civil action").

     The Commonwealth's theory of the case was that the offenses

with which appellant was charged occurred when the victims

attempted to purchase drugs from him, and one of the victims

testified to that effect.   The Commonwealth called Harris to

testify that she saw appellant shoot into the victims' car, and

it asserted in its opening statement that "Harris has nothing to

gain or to lose by coming here today.   She has no reason to lie

to you people.   And I think her testimony is probably going to

be the most important testimony you'll hear today."   (Emphasis

added).

     When the Commonwealth called Harris to the stand,

appellant's counsel proffered that Harris had pending against

her a charge for possessing cocaine with an intent to distribute

at a location "right across the street" from where the crimes

for which appellant was on trial had taken place.   This incident
                              - 7 -
from which Harris' charge stemmed occurred on May 5, 2000, less

than seven months after the offenses for which appellant was on

trial and less than four weeks before appellant's May 30, 2000

trial.   Appellant's counsel expressly asserted that Harris'

pending charge "goes tremendously toward" Harris' "motive to

make statements against [appellant], the competition."

     Further, outside the presence of the jury, appellant

offered the testimony of Officer James Hannah.   Hannah testified

that when he executed a search warrant on Harris' residence on

May 5, 2000, he observed Harris attempt to flush approximately

45 "hits of crack cocaine" down the toilet and that these

observations provided the basis for the charges pending against

her at the time of appellant's trial.   Hannah found "no sign of

personal use in the house."   Appellant herself had previously

testified to the jury that she did not use drugs, further

supporting appellant's theory that she was a drug dealer rather

than a user.

     This circumstantial evidence, if admitted for the jury's

consideration, would have supported the inference that Harris

and appellant both sold drugs in the same neighborhood and that

Harris had a motive to testify falsely against appellant in

order to reduce or eliminate her competition.    Appellant was not

required to proffer direct testimony that appellant routinely

sold drugs or that Harris actually admitted a desire to

eliminate appellant as a competitor before this evidence became
                              - 8 -
relevant.   Thus, I would reverse appellant's convictions and

remand for retrial.




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