Anthony Kearney v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys and
Clements
Argued at Richmond, Virginia
ANTHONY KEARNEY
OPINION BY
v. 	Record No. 0080-99-1 	JUDGE RUDOLPH BUMGARDNER, III
JULY 10, 2001
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerome James, Judge
Robert E. Kowalsky, Jr., for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
briefs), for appellee.
A jury convicted Anthony Kearney of second degree murder
and use of a firearm in the commission of a felony. 	A divided
panel of this Court reversed and remanded the murder charge for
re-sentencing but affirmed the conviction for use of a firearm.
Kearney v. Commonwealth, 32 Va. App. 790, 531 S.E.2d 23 (2000).
We granted the Commonwealth a hearing en banc and stayed the
mandate of the panel decision. 	Upon rehearing, we affirm the
trial court and vacate the mandate and opinion of the panel.
The defendant and Maurice "Noodles" Frances argued in the
parking lot of a convenience store. 	The defendant and his
companions left but later returned to the area looking for

Noodles. 	One of the group recognized someone in a car stopped
at a stop sign as having been with Noodles earlier. 	The
defendant and another person shot at the vehicle and killed a
passenger. 	Two of the defendant's companions testified the
defendant had fired at the victim's car.
The defendant did not testify during the guilt phase of his
trial but did during the sentencing phase. 	Defense counsel
asked, "[O]n the day of the shooting, were you at all aware that
people were going to pull out guns and start shooting?" 	The
Commonwealth objected, a bench conference followed, and the
trial court sustained the objection. 	Defense counsel stated,
"Judge, I don't really have anymore questions." 	The defendant
made no proffer of his answer.
The sole issue is whether the trial court erred in
sustaining the objection to the question posed to the defendant
during the sentencing phase of his bifurcated jury trial. 	The
defendant may present mitigating evidence, which tends to
explain, but not excuse, the crime. 	Commonwealth v. Shifflett,
257 Va. 34, 44, 510 S.E.2d 232, 236 (1999). 	He may not argue or
present evidence of "residual doubt" at the sentencing phase of
the trial. 	Atkins v. Commonwealth, 260 Va. 375, 381, 534 S.E.2d
312, 316 (2000) (citing Stockton v. Commonwealth, 241 Va. 192,
211, 402 S.E.2d 196, 207, cert. denied, 502 U.S. 902 (1991)),
petition for cert. filed, (Feb. 1, 2001) (No. 00-8452).
- 2 -

Defense counsel made no proffer of the defendant's
anticipated testimony or the evidence he wished to present.
Failure to make such a proffer precludes appellate review of
this claim. 	Spencer v. Commonwealth, 238 Va. 563, 570, 385
S.E.2d 850, 854 (1989), cert. denied, 493 U.S. 1093 (1990). 	The
defendant concedes he made no proffer but maintains a proffer
was not necessary because the answer was apparent from the
question. 	As stated in O'Dell v. Commonwealth, 234 Va. 672,
697, 364 S.E.2d 491, 505, cert. denied, 488 U.S. 871 (1988),
"[w]e will not speculate what the [questions and] answer[s]
might have been."
The defendant also maintains his allocution sufficed as a
proffer,1 but his allocution followed submission of the case to
the jury. 	We consider the proffer as made to the trial court
before the jury retired. 	Shifflett, 257 Va. at 45, 510 S.E.2d
at 237.
The question posed to the defendant could have elicited
either mitigating or excusing evidence. 	The defendant made no
proffer to clarify his question or his purpose. 	Without such a
timely proffer, we cannot say the trial court clearly abused its
discretion in sustaining the objection to the question posed.
- 3 -
1 At the post-trial sentencing before the trial court
imposed judgment, the defendant took the stand to testify.
Then, he invoked the Fifth Amendment and did not testify other
than to say he was innocent. 	The allocution followed but was
not under oath or subject to cross-examination and primarily
denied guilt.

"[A] trial court's discretionary ruling on this issue should not
be disturbed on appeal absent a clear abuse of discretion." 	Id.
at 44, 510 S.E.2d at 237 (citation omitted). 	Accordingly, we
affirm the trial court.
Affirmed.
- 4 -

Benton, J., dissenting.
At the guilt phase of the trial, the trial judge's
instructions to the jury included the following:
A principal in the second degree is a person
who is present, aiding, and abetting, by
helping in some way in the commission of the
crime. . . .
* 	* 	* 	* 	* 	* 	*
If there is concert of action with the
resulting crime one of its incidental
probable consequences, then whether such
crime was originally contemplated or not,
all who participate in any way in bringing
it about are equally answerable and bound by
the acts of every other person connected
with the consummation of such resulting
crime.
* 	* 	* 	* 	* 	* 	*
One who does not hold or possess a
firearm during the commission of a felony
may nevertheless be convicted as a principal
in the second degree of use of a firearm in
the commission of a felony where he acted in
concert with the gunman.
The jury acquitted Anthony Kearney of the charge of first degree
murder, which would have required a finding of premeditation,
but convicted him of second degree murder. 	In view of the
instructions, the conviction of second degree murder was not
dependent upon the jury finding that Kearney knew the killer was
armed. 	That verdict could have been premised upon the jury
believing testimony that Kearney did not have a gun and, yet,
finding him guilty because he aided and abetted or acted in
concert with the actual killer.
- 5 -

At the punishment phase, the trial judge sustained the
Commonwealth's objection to the following question:
Q: 	Mr. Kearney, on the day of the shooting,
were you at all aware that people were going
to pull out guns and start shooting?
[PROSECUTOR]: 	Objection, Your Honor. 	Could
we approach, Judge?
* 	* 	* 	* 	* 	* 	*
THE [JUDGE]: 	The objection to that question
is sustained. 	I'll note the defendant's
exception.
I believe the question was permissible because it sought to
elicit relevant testimony.
In pertinent part, Code § 19.2-295.1 provides as follows:
In cases of trial by jury, upon a finding
that the defendant is guilty of a felony, a
separate proceeding limited to the
ascertainment of punishment shall be held as
soon as practicable before the same jury.
. . . 	After the Commonwealth has introduced
such evidence of prior convictions, or if no
such evidence is introduced, the defendant
may introduce relevant, admissible evidence
related to punishment.
The trial judge, "in determining what evidence is relevant
to punishment under Code § 19.2-295.1[,] may be guided in the
exercise of . . . discretion, subject to the rules of evidence
governing admissibility, by the factors set forth in Code
§ 19.2-264.4(B)." 	Commonwealth v. Shifflett, 257 Va. 34, 44,
510 S.E.2d 232, 236 (1999). 	Under that statute, evidence
relevant to sentencing "may include the circumstances
surrounding the offense, the history and background of the
- 6 -

defendant, and any other facts in mitigation of the offense."
Code § 19.2-264.4(B).
I would hold that the disallowed question in this case
sought to elicit "circumstances surrounding the offense," id.,
and was relevant, whether Kearney would have answered
affirmatively or negatively. 	The majority opinion fails to
reach the merits of the case by erroneously imposing a proffer
requirement for an inquiry that required no proffer. 	In Craig
v. Commonwealth, 14 Va. App. 842, 419 S.E.2d 429 (1992), we held
that "failure to proffer the anticipated evidence does not bar
[in every circumstance] our consideration of its admissibility."
Id. at 845, 419 S.E.2d at 431. 	As in Craig, "the nature of
[Kearney's] response to the question [is] not critical" to our
determination whether Kearney was prejudiced by the trial
judge's decision. 	Id. 	The absence of a proffer of the expected
answer is irrelevant to the issue whether error occurred and
whether we can decide this appeal. 	For these reasons and as
fully discussed in the prior panel opinion, see Kearney v.
Commonwealth, 32 Va. App. 790, 531 S.E.2d 23 (2000), I would
hold that the trial judge erred in denying Kearney the
opportunity to respond to this question about "'the
circumstances surrounding the offense' from his perspective."
Id. at 794, 531 S.E.2d at 25. 	As the prior panel decision
noted, "nothing could be more germane and relevant to sentencing
- 7 -

than the extent of the defendant's involvement in planning or
his participation in a crime." 	Id.
Furthermore, it appears that the nature of Kearney's
response is contained in the record. 	At allocution, he stated,
"If I had any idea any shooting was going to be involved, I
would have never been in the car." 	Although Kearney did not
offer this evidence as a formal proffer, it is responsive to the
question and is a part of the record. 	We have previously held
that a proffer may be made "after the verdict since the proffer
[is] necessary only to provide a complete record for appeal, and
not to assist the trial judge in ruling on the admissibility of
the evidence." 	Lowery v. Commonwealth, 9 Va. App. 304, 308, 387
S.E.2d 508, 510 (1990). 	See also Wyche v. Commonwealth, 218 Va.
839, 843, 241 S.E.2d 772, 775 (1978). 	Kearney's statement
clearly describes circumstances surrounding the offense in a
manner favorable to him and, therefore, its disallowance
prejudiced him.
Non-constitutional error is harmless only "[w]hen it
plainly appears from the record and the evidence given at the
trial" that the error did not affect the jury's sentence.2 Code
§ 8.01-678. 	Without indicating whether it was overruling any of
2 Kearney raises no constitutional issues, see Rock v.
Arkansas, 483 U.S. 44, 51-53 (1987); therefore, I address only
the issue of non-constitutional error.
- 8 -

its prior cases, the Supreme Court of Virginia has "adopt[ed]
the Kotteakos [v. United States, 328 U.S. 750 (1946),]
harmless-error test" for measuring non-constitutional error
under Code § 8.01-678. 	Clay v. Commonwealth, ___ Va. ___, ___
S.E.2d ___ (June 8, 2001). 	Applying that test, the United
States Supreme Court recently held that "the principle of
Kotteakos [means] that when an error's natural effect is to
prejudice substantial rights and the court is in grave doubt
about the harmlessness of that error, the error must be treated
as if it had a 'substantial and injurious effect' on the
verdict." 	O'Neal v. McAninch, 513 U.S. 432, 444 (1995) (quoting
Kotteakos, 328 U.S. at 776). 	Moreover, when a trial error has
been shown on direct appeal from a conviction, the government
bears the burden of proving harmlessness under the Kotteakos
standard. 	See O'Neal, 513 U.S. at 437-38.
In this case, the jury, as instructed, may have found
Kearney guilty either as the principal gunman or as a principal
in the second degree. 	The disallowed question presupposes that
other people, who were charged in the incident, did the
shooting. 	Refusing, in error, to admit the answer to the
question could only be harmless if we could somehow conclude
that during the guilt phase the jury found that Kearney held the
gun. 	Indeed, then and only then could the issue of "residual
doubt," as discussed in Atkins v. Commonwealth, 260 Va. 375,
- 9 -

381, 534 S.E.2d 312, 316 (2000), arise, because only then would
the defense be reintroducing the issue of the gunman's identity.
Assuming the jury believed that Kearney was a principal in
the second degree, the trial judge's decision to exclude
Kearney's testimony about his understanding of other people's
intentions prejudiced his right to prove mitigating evidence and
clearly "had substantial and injurious effect" on the jury's
consideration of his sentence. 	Kotteakos, 328 U.S. at 776. 	If
believed, Kearney's testimony was significant mitigating
evidence. 	Because we have no basis to know which theory the
jury applied in its finding of guilt, we cannot conclude, in the
context of the entire record, that the error did not influence
the jury. 	The record fails to establish that the error did not
prejudicially affect the jury's sentencing verdict. 	Thus, I
would hold that it does not plainly appear that the error did
not substantially and injuriously affect the sentence and that
the excluded evidence, if successful in achieving its purpose,
clearly would have affected the verdict. 	See Norfolk Ry. &
Light Co. v. Corletto, 100 Va. 355, 360, 41 S.E. 740, 742 (1902)
(holding that "[i]t is . . . well settled that if a . . .
mistake of the court appear[s] in the record it must be presumed
that it affected the verdict of the jury, and is therefore
ground for which the judgment must be reversed, unless it
plainly appears from the whole record that the error did not
affect, and could not have affected, their verdict").
- 10 -

Accordingly, I would reverse and vacate the judgment sentencing
Kearney to thirty-two years in prison for second degree murder,
and I would remand for re-sentencing.
I dissent.
- 11 -