COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

LUIS ANTONIO ORTEGA 

 MEMORANDUM OPINION* BY 

v. Record No. 0713-94-2 JUDGE JAMES W. BENTON, JR. 

 JANUARY 30, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 John C. Jones, Jr. (Michael HuYoung; Jane 

 Chittom; Shuford, Rubin & Gibney, on brief), 

 for appellant. 

 Kathleen B. Martin, Assistant Attorney 

 General (James S. Gilmore, Attorney General, 

 on brief), for appellee. 

 Luis Antonio Ortega appeals from his convictions for capital 

murder and use of a firearm in the commission of capital murder. 

 Ortega contends the trial judge erred by admitting in evidence 

his initial statement to the police and prohibiting him from 

fully cross-examining a material witness. We agree that the 

trial judge improperly limited cross-examination, and we reverse 

the convictions. 

 I. 

 The evidence proved that shortly after 1:00 a.m., 

Chesterfield County Police Officer Henry Pletch received a call 

concerning a suspicious vehicle. When the officer examined the 

vehicle that was parked in a wooded area near an automobile 

service station, he learned that the vehicle was registered to 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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Felicia Ward. As the officer was continuing his investigation, 

Ritchie Allred approached the vehicle from the direction of the 

service station. Allred told the officer that he was driving the 

vehicle, that he had been talking to friends at a nearby motel, 

and that he resided at the California Inn in room 202. 

 As the officer was talking to Allred, he received a report 

that two men had been seen jumping the counter at the service 

station. The officer told Allred, who did not fit the 

description of the men, to leave the area. When the officer 

arrived at the service station, he saw the cashier lying dead 

behind the counter with a gunshot wound in his chest. A gun was 

on the counter. During the investigation, the officer viewed a 

video tape from the service station's surveillance camera, and he 

recognized Allred and the cashier on the tape. He could not 

recognize two other men who appeared on the tape. 

 After learning of Allred and the vehicle in the woods, three 

officers went to the California Inn. At six o'clock that morning 

while the officers were watching the inn, they saw Luis Ortega 

and Marcus Johnson walk behind the inn and then toward the front 

without stopping at any doors. When the officers called to them, 

they approached the officers and talked. Ortega explained his 

activities and said that he and Johnson were going to room 202 to 

meet Felicia Ward. 

 The officers were aware that Allred drove Ward's vehicle 

from the woods near the service station. They also knew that 
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Allred said he was staying in room 202. After one of the 

officers talked with Ward outside room 202, the officers ended 

their encounter with Ortega and Johnson. One of the officers 

discovered that Allred was also in room 202 and interviewed him. 

 Based on information received from Allred, the officers stopped 

Ortega and Johnson and arrested them. 

 Following his arrest and after receiving Miranda warnings, 

Ortega confessed that he, Johnson, and Allred were riding in 

Ward's vehicle and planning a robbery. Ortega said that he had a 

gun when they entered the service station. He further said that 

his "mind went blank" when the cashier cursed him, pushed 

Johnson, and told them to leave the store. He said that he did 

not want to shoot the cashier; however, the gun fired once 

because its hammer was cocked. 

 Ortega, who was fifteen years old, pled guilty to attempted 

robbery and use of a firearm in the commission of attempted 

robbery. He was tried by a jury and convicted of capital murder 

and use of a firearm in the commission of capital murder. He 

appeals his convictions for capital murder and use of a firearm 

in the commission of capital murder. 

 III. 

 At trial during the Commonwealth's case-in-chief, a police 

officer testified concerning Ortega's initial conversation with 

the officers outside the inn. Ortega's counsel objected and 

argued that the Commonwealth was proving evidence of Ortega's 
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character and veracity even though he had not testified. Counsel 

also asserted that Ortega had confessed to shooting the cashier 

and, thus, the defense of alibi was not at issue. The prosecutor 

argued that Ortega's state of mind was at issue and that any 

evidence tending to show his guilty state of mind was relevant. 

We conclude that the trial judge properly allowed the evidence. 

 The officer testified that Ortega said he and Johnson had 

been with Ward until five o'clock on the afternoon of the 

previous day. Ortega also said that he was again with Ward until 

ten o'clock the evening of the previous day. When he departed at 

ten o'clock, he and Johnson visited his friend Tamera. He told 

the officers that he and Johnson were just returning from 

Tamera's house, where they had been continuously after leaving 

Ward at ten o'clock. 

 Later, in its case-in-chief, the Commonwealth proved through 

Tamera's testimony that Ortega left her house eight hours before 

he talked to the police officers. The Commonwealth also proved 

that in his confession Ortega had admitted being in Ward's 

vehicle and at the service station. 

 "In Virginia, the weight of the evidence or the inferences 

to be drawn from circumstances . . . is always a matter for the 

jury." Toler v. Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 

213 (1949). A jury may properly consider an accused's 

contradictory or inconsistent statements to the police as 

circumstantial evidence demonstrative of a guilty state of mind. 
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See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 

(1981). 

 In all cases of circumstantial evidence 

the conduct of the accused is always an 

important factor in the estimate of the 

weight of circumstances which point to his 

guilt. Where a conviction rests upon 

circumstantial evidence, much weight is given 

to contradictory statements of material facts 

by the accused. Each should be considered 

along with the other facts and circumstances 

shown in evidence to determine whether, upon 

the whole case, the evidence excludes every 

reasonable hypothesis consistent with the 

accused's innocence. 

Toler, 188 Va. at 781, 51 S.E.2d at 213. 

 The Commonwealth had the burden to show Ortega killed 

willfully, deliberately and with premeditation. Code 

§ 18.2-31(4). Ortega pled not guilty and, thus, put at issue his 

conduct and his state of mind at the time the killing occurred. 

Obviously, the jury was not required to believe in its totality 

the explanation Ortega gave in his confession. 

 After assessing Ortega's contradictory statements, the jury 

could have inferred that he was trying to conceal his guilt. 

Black, 222 Va. at 842, 284 S.E.2d at 610. The Supreme Court has 

clearly stated that an accused's "contradictory statements . . . 

[may] furnish bases for reasonable inferences that his 

explanations were made falsely in an effort to conceal guilt." 

Toler, 188 Va. at 782, 51 S.E.2d at 214. Thus, the trial judge 

did not err in admitting Ortega's contradictory pre-arrest 

statements as evidence tending to prove his state of mind and his 
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efforts to conceal his guilt. See also Land v. Commonwealth, 211 

Va. 223, 229, 176 S.E.2d 586, 590-91 (1970) (contradictory 

statements "which tended to show guilt, when considered with 

other evidence, were admissible"). 
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 IV. 

 Ortega also contends that the trial judge improperly limited 

his cross-examination of Richie Allred. Following Allred's 

conversation with the officers at the inn, Allred was arrested 

for murder, attempted robbery, and use of a firearm. All of 

those charges arose from the same incident for which Ortega was 

being tried. When Allred testified for the Commonwealth, those 

charges were still pending. 

 Allred testified on direct examination that he, Ortega, and 

Johnson lived together at the inn. On the night of the incident 

he drove Ward's vehicle to a wooded area and went with Ortega and 

Johnson to a nearby entertainment lounge. Later, he and Ortega 

walked to the service station to buy a soda. When they entered, 

the cashier cursed at Ortega and told him to leave the store. 

Allred testified that on a prior occasion the cashier had accused 

Ortega of shoplifting and had threatened to call the police. 

Allred also testified that after they left the store Ortega said 

that he felt like robbing the cashier. Allred testified that he 

told Ortega not to bother the cashier and that he did not believe 

Ortega was serious. He testified that he went back to the 

vehicle in the woods while Ortega and Johnson re-entered the gas 

station. 

 Allred further testified that he was unaware that Ortega had 

a weapon. Allred admitted owning a gun. He testified, however, 

that he last saw the gun several days before the incident and had 
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never seen Ortega with it. When shown the gun found in the 

service station, Allred testified that it resembled his gun. 

 Immediately following Allred's direct examination and prior 

to cross-examination, the prosecutor requested a bench 

conference. The prosecutor then informed the trial judge that 

Allred's bail had been reduced and that Allred had been released 

from custody. The prosecutor explained that the bail was reduced 

because Allred passed a polygraph examination. The prosecutor 

asked the trial judge to restrict Ortega's counsel from pursuing 

matters concerning the reduced bail. After hearing counsel's 

argument, the trial judge ruled that Allred's counsel could not 

ask "if his bond was reduced as a result of favoritism." 

 Citing Rule 5A:18, the Commonwealth alleges Ortega forfeited 

his right to raise this claim on appeal by failing to object at 

trial. We disagree. This issue arose when the Commonwealth 

objected to an anticipated line of questions by defense counsel. 

 The record demonstrates that the trial judge was alerted to the 

contested issue, heard arguments from both counsel, and had the 

opportunity to rule intelligently. The arguments at the bench 

conference fulfilled the purpose of 5A:18. See Martin v. 

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992). 

 "Cross-examination is fundamental to the truth-finding 

process . . . [and] is an absolute right guaranteed by the 

confrontation clause of the Sixth Amendment." Barker v. 

Commonwealth, 230 Va. 370, 376, 337 S.E.2d 729, 733 (1985). 
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Questioning the motive of a witness "'is a proper and important 

function of the constitutionally protected rights of crossexamination.'" Delaware v. Van Arsdall, 475 U.S. 673, 678-79 

(1986)(citation omitted). See also Deavers v. Commonwealth, 220 

Va. 14, 16, 255 S.E.2d 458, 459 (1979). 

 To allow for the exploring of the depths of a witness' selfinterest, "the cross-examiner is not only permitted to delve into 

the witness' story to test the witness' perceptions and memory, 

but the cross-examiner has traditionally been allowed to impeach, 

i.e., discredit, the witness." Davis v. Alaska, 415 U.S. 308, 

316 (1974). "One purpose of cross-examination is to show that a 

witness is biased and his testimony unreliable because it is 

induced by considerations of self-interest." Barker, 230 Va. at 

376, 337 S.E.2d at 733. Indeed, "a defendant is entitled to show 

that testimony of a prosecution witness was motivated by an 

expectation of leniency in a future trial." Whittaker v. 

Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). Absent 

a showing of abuse in the conduct of the examination, a defendant 

has an absolute right to cross-examination of witnesses for bias 

or motivation. Hewitt v. Commonwealth, 226 Va. 621, 623, 311 

S.E.2d 112, 114 (1984). 

 Although the Commonwealth told the judge during the bench 

conference that Allred's bond had been reduced due to the results 

of a polygraph examination, Ortega was entitled to the 

opportunity to examine Allred before the jury concerning the 
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reduction in his bail and to establish, if he could, that Allred 

was given special consideration because of Allred's promise to 

testify favorable for the Commonwealth. Allred's motivation and 

self-interest were proper areas of inquiry. The Commonwealth's 

argument, that it could only rehabilitate Allred by introducing 

the polygraph results, was not a proper basis to limit crossexamination. The trial judge's fear that the jury would learn of 

the polygraph could have been assuaged by instruction to Allred. 

Indeed, the prosecutor stated that he had "told . . . Allred not 

to say anything about a polygraph." 

 If Allred's motive in testifying was a grant or promise of 

leniency, Ortega was entitled to explore it through crossexamination. The lowering of the bail, whether as part of an 

explicit or implicit agreement, may have encouraged Allred to 

testify for the Commonwealth. Thus, it may have had a direct 

bearing upon the jury's consideration of his credibility. Ortega 

had a right to investigate during cross-examination the reasons 

why Allred agreed to testify for the Commonwealth. Barker, 230 

Va. at 376, 337 S.E.2d at 733-34. Accordingly, we conclude that 

the trial judge denied Ortega's Sixth Amendment right of crossexamination in forbidding any questions regarding the reduction 

of Allred's bond. Williams v. Commonwealth, 4 Va. App. 53, 

77-78, 354 S.E.2d 79, 93 (1987). 

 The Commonwealth argues that the judge's restriction of 

cross-examination was harmless. We do not agree. To prove a 
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constitutional error is harmless, the Commonwealth must show 

"beyond a reasonable doubt that the error complained of did not 

contribute to the verdict obtained." Chapman v. California, 386 

U.S. 18, 24 (1967). In his testimony, Allred described Ortega's 

anger at the cashier and the role that Ortega played in the 

decision to rob the store. Allred also testified that Ortega 

"had had problems with [the victim] before" and that Ortega had a 

motive to kill the victim. Thus, Allred's testimony was crucial 

in the Commonwealth's proof that the killing was "willful, 

deliberate, and premeditated." Code § 18.2-31(4). Allred 

provided important testimony of Ortega's state of mind and 

intent. The only other evidence tending to prove Ortega's frame 

of mind prior to the shooting was purely circumstantial. 

 The record does not establish beyond a reasonable doubt that 

if Ortega had been permitted to examine Allred regarding bias and 

motivation, the jury would not have rejected Allred's testimony 

and the verdict would have been the same. Because the error was 

not harmless, we must reverse the convictions and remand for a 

new trial. 

 Reversed and remanded.