COURT OF APPEALS OF VIRGINIA 

Present: Judges Beales, Powell and Alston 

Argued at Richmond, Virginia 

STEPHEN L. NELSON, S/K/A 

 STEPHEN LEONARD NELSON 

 MEMORANDUM OPINION* BY 

v. Record No. 2936-08-2 JUDGE RANDOLPH A. BEALES 

 JANUARY 12, 2010 

COMMONWEALTH OF VIRGININA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 Robert H. Morrison (Law Office of Robert H. Morrison, P.C., on 

brief), for appellant. 

 Leah A. Darron, Senior Assistant Attorney General (William C. 

Mims, Attorney General, on brief), for appellee. 

 Stephen L. Nelson (appellant) was convicted by a jury of first-degree murder, in violation 

of Code § 18.2-32, and use of a firearm during the commission of the murder, in violation of 

Code § 18.2-53.1. Appellant argues on appeal that the trial court abused its discretion when it 

refused to permit him to cross-examine a prosecution witness concerning the witness’ unrelated 

robbery indictment. We disagree with appellant’s argument, and, for the following reasons, we 

affirm appellant’s convictions. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
- 2 - 

 

I. BACKGROUND

 In the early morning of July 7, 2007, the body of the victim, A.R.,1

 was found in a rural area 

of Halifax County. A.R. died from a single gunshot wound to the head. Investigator J.D. Clay 

found a live round, a spent casing, and a bullet near A.R.’s body. 

 On July 9, 2007, two days after A.R.’s body was discovered, Investigator Clay met with 

Jacob Bunker, who identified himself as a long-time friend of appellant. Bunker told the 

investigator that appellant killed A.R. on July 6, 2007. 

 According to Bunker, he and appellant drank large quantities of alcohol and smoked 

marijuana on July 6, while traveling to various places in appellant’s red Dodge Stratus. After 

stopping for dinner on their way to Danville, they saw A.R. walking on the side of the road. A.R., 

who said that she needed a ride to Danville, got in the back seat of the vehicle. While appellant 

drove in the direction of Danville, A.R. accepted $10 in exchange for giving Bunker oral sex and 

then engaged in consensual intercourse with Bunker. Appellant proceeded to drive to a field. 

Appellant and A.R. then exited the vehicle presumably to engage in sexual activity, Bunker told 

the investigator. As appellant exited the vehicle, Bunker saw the handle or grip of a Ruger 

firearm tucked into the waistband of appellant’s pants. Moments later, as A.R. began to get back 

in the vehicle, appellant told her that she had “dropped twenty bucks” near the rear of the 

vehicle. Bunker could hear A.R. reply that she did not see any money there. Bunker then heard 

a gunshot, and something hit the ground. Appellant got in the driver’s seat, said to Bunker that 

“that b**ch thought she was going to get my twenty bucks,” and drove away. 

 Based on this information, Investigator Clay obtained a search warrant for appellant’s 

residence, where a firearm matching Bunker’s description and a t-shirt containing A.R.’s blood 

1

 We use initials for the victim in this opinion rather than her actual name so as better to 

protect the privacy of the deceased victim and her family. 
- 3 - 

were found. Blood stains from A.R. were also found on the rear wheel well and along the rear 

passenger door running board of appellant’s car, as well as on the back of the car’s front seat. 

 On October 16, 2007, Bunker was arrested in Pittsylvania County on a robbery charge 

that, appellant acknowledges, was unrelated to A.R.’s murder. 

 At appellant’s preliminary hearing on December 12, 2007, appellant’s counsel asked 

Bunker if he had sought “any credit or preferential treatment” in his Pittsylvania County case in 

exchange for testifying against appellant in the Halifax County murder trial. Bunker responded 

that he had asked his lawyer whether “help[ing] out the Commonwealth” by giving the 

authorities information on the A.R. murder would “be an outlook on my case.” Appellant’s 

counsel then asked Bunker whether he hoped “that what you say today is going to help you in 

your other collateral problems.” Bunker said that he did not harbor such a hope “because it 

doesn’t work like that.” 

 After Bunker testified at appellant’s preliminary hearing – but before appellant’s trial 

occurred – the Pittsylvania County robbery indictment against Bunker was discharged by nolle 

prosequi. The Halifax County prosecutor in appellant’s murder case indicated that her office had 

nothing to do with the dismissal of the Pittsylvania County charge and had never offered any 

deal to Bunker for his testimony in appellant’s case. 

 The Commonwealth filed a pretrial motion in limine to prohibit appellant from 

introducing at his murder trial “[t]he allegations, arrest, detention or any information whatsoever 

concerning charges placed against Jacob Bunker subsequent to the present charges being placed 

against the Defendant.” The trial court ruled that appellant’s counsel was permitted to ask 

Bunker whether he “received any offers of leniency from this jurisdiction or any other 

jurisdiction in exchange for his testimony,” but that counsel was not permitted to reference the 

specific Pittsylvania County robbery charge unless Bunker indicated that he, in fact, received 
- 4 - 

offers of leniency. At trial, Bunker testified that he did not receive any offers of leniency in 

exchange for his testimony. 

II. ANALYSIS

 Appellant argues that the trial court erred by refusing to permit his cross-examination of 

Bunker regarding the Pittsylvania County charge. The court’s evidentiary ruling here is reviewed 

for abuse of discretion.2 Commonwealth v. Wynn, 277 Va. 92, 97, 671 S.E.2d 137, 139 (2009). 

 “An accused has a right to cross-examine prosecution witnesses to show bias or 

motivation [to fabricate] and that right, when not abused, is absolute.” Brown v. 

Commonwealth, 246 Va. 460, 463-64, 437 S.E.2d 563, 564-65 (1993) (emphasis added). When 

evidence “is relevant to show that a witness is biased or has a motive to fabricate, it is not 

collateral and should be admitted.” Banks v. Commonwealth, 16 Va. App. 959, 963, 434 S.E.2d 

681, 683 (1993). However, the right to cross-examine a witness to show bias or motivation to 

fabricate “may not be employed as a device to confuse the issues before the jury or to imply the 

existence of evidence that the jury is not permitted to consider.” Lewis v. Commonwealth, 269 

Va. 209, 214, 608 S.E.2d 907, 910 (2005). Thus, an appellate court “must examine the substance 

of the anticipated testimony” to determine whether an accused’s right to cross-examine a 

prosecution witness has been violated. Brown, 246 Va. at 464, 437 S.E.2d at 565. 

 Appellant contends that the trial court erroneously focused on whether Bunker actually 

entered into an agreement for leniency on his Pittsylvania County robbery charge – which, 

appellant concedes, Bunker did not. Instead, appellant asserts that the appropriate inquiry was 

 2

 The Commonwealth also argues that, even if the trial court abused its discretion here, 

the convictions should be affirmed under the harmless error doctrine because Bunker was 

cross-examined concerning a prior felony conviction for lying to a police officer that occurred 

after the date of A.R.’s murder and because the evidence of appellant’s guilt was overwhelming. 

Because we hold that the trial court did not abuse its discretion here, we need not address the 

Commonwealth’s claim of harmless error. 
- 5 - 

whether Bunker had a subjective belief that he could receive favorable treatment on his robbery 

charge by testifying at appellant’s murder trial. Appellant relies on Bunker’s statement at the 

preliminary hearing that he asked his attorney whether testifying against appellant would “be an 

outlook” on his Pittsylvania County case. 

 Appellant, however, was required to point to at least some evidence permitting an 

inference that Bunker’s testimony was motivated or induced “by considerations of self-interest.” 

See Barker v. Commonwealth, 230 Va. 370, 376, 337 S.E.2d 729, 734 (1985); see also Woody v. 

Commonwealth, 214 Va. 296, 299, 199 S.E.2d 529, 531 (1973) (holding that a “predicate for 

bias” existed when two witnesses, who confessed to participating in the robbery with Woody, 

were not charged in the offense); Banks, 16 Va. App. at 964, 434 S.E.2d at 684 (“If believed, the 

trier of fact could reasonably infer from the defendant’s proffered evidence that Barnwell had a 

strong motive to implicate the defendant in order to conceal his own alleged drug-dealing 

activities.”). 

In Brown, for instance, the defendant tried to elicit facts showing that a prosecution 

witness, Sydow, had not yet been tried for several crimes – thereby permitting an inference that 

Sydow could receive leniency in return for his testimony against him. Brown, 246 Va. at 462, 

437 S.E.2d at 564. The Supreme Court held that the trial court erroneously prevented Brown 

from asking cross-examination questions that could establish Sydow “was motivated by a 

bargain for leniency relating to the charges pending against him, particularly since Sydow 

admitted that the trial of those charges had been continued each month since the date of his 

arrest.” Id. at 464, 437 S.E.2d at 565 (emphasis added). 

In this case, unlike in Brown, no evidence connected Bunker’s testimony in appellant’s 

murder trial with a possibility of leniency in his Pittsylvania County robbery case. Bunker’s 

robbery indictment had already been dismissed by nolle prosequi well before appellant’s trial 
- 6 - 

date, and nothing indicated that this disposition in Pittsylvania County was connected in any way 

to Bunker’s testimony in appellant’s Halifax County murder trial. Instead, the Halifax County 

prosecutor here unequivocally stated that her office had no input in the decision in Pittsylvania 

County to discharge Bunker’s robbery indictment, and appellant did not challenge this assertion. 

Thus, the fact that Bunker’s Pittsylvania County robbery charge was nolle prosequied prior to 

appellant’s murder trial3 in Halifax County had no bearing on Bunker’s credibility as a witness. 

Appellant’s claim that Bunker was biased or had a motive to fabricate the murder 

allegation against him at trial is further undercut by the fact that Bunker implicated appellant in 

A.R.’s murder on July 9, 2007, over three months before Bunker was charged with robbery in 

Pittsylvania County on October 16, 2007. Therefore, when Bunker gave his statement against 

appellant on July 9, 2007, he could not have been motivated by a possible bargain for leniency in 

his Pittsylvania County case, which did not even exist at the time. 

In sum, the purported connection between Bunker’s robbery charge and his testimony at 

appellant’s murder trial is simply too tenuous to permit the inference of witness bias or motive to 

fabricate. See Banks, 16 Va. App. at 963, 434 S.E.2d at 683. Accordingly, the trial court did not 

abuse its discretion in granting the Commonwealth’s motion in limine here. 

 3

 Appellant argues that, even though Bunker’s robbery charge had been nolle prosequied

by the time of appellant’s murder trial, Bunker’s testimony could still have been influenced by a 

hope that he would not be re-indicted on the robbery charge at some time thereafter. See Miller 

v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977) (holding that the prosecution 

of a nolle prosequied charge may proceed in the future, although a new indictment is required). 

However, the record on appeal here contains no indication that the Pittsylvania County 

authorities ever intended to re-indict Bunker. Therefore, appellant fails to create an inference 

that Bunker’s testimony in appellant’s Halifax County murder trial “was motivated by an 

expectation of leniency in a future trial” in Pittsylvania County on a future robbery indictment. 

See Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). In light of these 

facts, to conclude otherwise would essentially permit a nolle prosequi at some point in the past 

(even many years ago) of a felony indictment against a prosecution witness to be used as 

evidence to attack that witness at any point in the future, because the witness would be 

supposedly afraid – even many years later – of being re-indicted for the felony offense for which 

he had once been indicted. 
- 7 - 

III. CONCLUSION

 For the foregoing reasons, we affirm appellant’s convictions for first-degree murder and use 

of a firearm in the commission of murder. 

Affirmed.