COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements Argued at Alexandria, Virginia
GREGORY BOYD MEMORANDUM OPINION * BY v. Record No. 2947-99-4 JUDGE JEAN HARRISON CLEMENTS APRIL 17, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY William T. Newman, Jr., Judge
Janell M. Wolfe for appellant.
Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Appellant Gregory Boyd was convicted in a jury trial of
robbery in violation of Code § 18.2-58. On appeal, he contends
the trial court erred in allowing the Commonwealth to
cross-examine him about the nature of his prior felony offenses.
After examining the record, we conclude that, although the trial
court did err, that error was harmless. Accordingly, we affirm
appellant's conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Boyd's sole contention on appeal is that the trial court
erred in permitting the Commonwealth to question him on
cross-examination about the nature of his prior felony
convictions.
In reviewing Boyd's claim, we are guided by several
established principles. When a defendant testifies in his own
defense, he puts his credibility in issue. Smith v. Commonwealth,
212 Va. 675, 676, 187 S.E.2d 191, 192 (1972) (per curiam). The
defendant's credibility may then be impeached by evidence of prior
convictions. Sadoski v. Commonwealth, 219 Va. 1069, 1071, 254
S.E.2d 100, 101 (1979). The Commonwealth may ask the defendant on
cross-examination "the number of times he has been convicted of a
felony, but . . . not the names of the felonies, other than
perjury, and not the nature or details thereof." Id.; see also
Code § 19.2-269; Jewel v. Commonwealth, 30 Va. App. 416, 425-26,
517 S.E.2d 264, 269 (1999) (construing Code § 19.2-269 to mean
that the Commonwealth may show the fact of defendant's felony
convictions but not the names, other than perjury, and details
thereof), aff'd, 260 Va. 430, 536 S.E.2d 905 (2000). Likewise,
when the defendant "testifies on direct examination that he has
been convicted previously of a certain number of felonies, he may
be cross-examined only with respect to the correctness of the
number stated and, if his answers are truthful, not with regard to
the names or the nature of the offenses." McAmis v. Commonwealth,
225 Va. 419, 422, 304 S.E.2d 2, 4 (1983). Furthermore, a
- 2 - defendant's credibility may be impeached by evidence of his prior
misdemeanor convictions involving moral turpitude. Chrisman v.
Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986).
Here, Boyd testified on his own behalf at trial. He
testified on direct examination that he had been convicted of "six
or maybe seven" felonies. He did not identify on direct
examination the name or nature of any of his felony convictions.
He also testified that he had been convicted of misdemeanors
involving moral turpitude.
On cross-examination, the following exchange took place
between the prosecutor and Boyd:
Q. And defense counsel had asked you about your criminal record. You have approximately eight felony convictions. Is that right?
A. Yes, sir — I mean, yes ma'am.
Q. Okay. And some of those are for lying, cheating or stealing. Is that correct?
A. I wouldn't say – I wouldn't say it exactly like that, lying, cheating or stealing. They was petit larcenies. You know what I mean? It was grand larceny, you know, but now — it wasn't for lying, cheating and stealing. That's what you trying to say.
Q. Lying, cheating or stealing. Let's focus on stealing. Were any of the felonies for any stealing kinds of crimes?
A. Yes. It was for petit larceny, yes.
Q. The felonies? You know a felony is a more serious crime?
- 3 - A. Yes.
Q. When your counsel asked you about felonies, do you understand what a felony is?
A. Yes, I do.
Q. Now, thinking back on your record, were any of those felonies, the serious ones, for involved — did those involve stealing?
A. No.
Boyd's counsel then objected, asserting that the Commonwealth
could not ask about the nature of Boyd's previous offenses. The
trial court overruled the objection, ruling that the Commonwealth
could ask Boyd if he had been convicted of a felony involving
lying, cheating, or stealing. The cross-examination continued as
follows:
Q. I'm going to ask again about the felonies, the serious crimes.
A. Yes, ma'am.
Q. Any of those crimes, not the petit larcenies or misdemeanors but the serious crimes, has to do with stealing?
A. No, ma'am. It was a drug offense, my serious charge that I went to the institution for.
Q. Okay. Would it refresh your recollection, or do you just not remember or are you just saying no, I had no felony crimes involving stealing?
A. I'm not saying that.
Q. But if you looked at your criminal record, might you remember if you had any crimes involving stealing that were serious crimes?
- 4 - A. Well, okay. Yes, I did. Yes, I did. Okay.
Q. Do you remember now?
A. I'm just saying for to answer your question correctly, you know what I mean, you saying did I have any felonies that is for lying, cheating or stealing. And as far as my recollection as do I have it? Yes, I do.
Q. Okay. And do you think there is probably three or four of those?
A. It may be, yes.
Because Boyd testified on direct examination that he had been
convicted previously of six or seven felonies, the Commonwealth
was permitted to question Boyd on cross-examination regarding the
correctness of the number stated. McAmis, 225 Va. at 422, 304
S.E.2d at 4. Once, however, Boyd testified truthfully that he had
been convicted of eight felonies, the Commonwealth was not
permitted to subsequently ask about the nature of his previous
felony convictions. Id. We hold, therefore, that the trial court
erred in allowing the Commonwealth to pursue its questioning of
Boyd regarding the nature of his previous felony convictions.
However, our inquiry does not end there. We must decide
whether the error requires reversal of Boyd's conviction. A
non-constitutional error by the trial court is harmless if
"it plainly appears from the record and the evidence given at the trial that" the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements Argued at Alexandria, Virginia
GREGORY BOYD MEMORANDUM OPINION * BY v. Record No. 2947-99-4 JUDGE JEAN HARRISON CLEMENTS APRIL 17, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY William T. Newman, Jr., Judge
Janell M. Wolfe for appellant.
Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Appellant Gregory Boyd was convicted in a jury trial of
robbery in violation of Code § 18.2-58. On appeal, he contends
the trial court erred in allowing the Commonwealth to
cross-examine him about the nature of his prior felony offenses.
After examining the record, we conclude that, although the trial
court did err, that error was harmless. Accordingly, we affirm
appellant's conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Boyd's sole contention on appeal is that the trial court
erred in permitting the Commonwealth to question him on
cross-examination about the nature of his prior felony
convictions.
In reviewing Boyd's claim, we are guided by several
established principles. When a defendant testifies in his own
defense, he puts his credibility in issue. Smith v. Commonwealth,
212 Va. 675, 676, 187 S.E.2d 191, 192 (1972) (per curiam). The
defendant's credibility may then be impeached by evidence of prior
convictions. Sadoski v. Commonwealth, 219 Va. 1069, 1071, 254
S.E.2d 100, 101 (1979). The Commonwealth may ask the defendant on
cross-examination "the number of times he has been convicted of a
felony, but . . . not the names of the felonies, other than
perjury, and not the nature or details thereof." Id.; see also
Code § 19.2-269; Jewel v. Commonwealth, 30 Va. App. 416, 425-26,
517 S.E.2d 264, 269 (1999) (construing Code § 19.2-269 to mean
that the Commonwealth may show the fact of defendant's felony
convictions but not the names, other than perjury, and details
thereof), aff'd, 260 Va. 430, 536 S.E.2d 905 (2000). Likewise,
when the defendant "testifies on direct examination that he has
been convicted previously of a certain number of felonies, he may
be cross-examined only with respect to the correctness of the
number stated and, if his answers are truthful, not with regard to
the names or the nature of the offenses." McAmis v. Commonwealth,
225 Va. 419, 422, 304 S.E.2d 2, 4 (1983). Furthermore, a
- 2 - defendant's credibility may be impeached by evidence of his prior
misdemeanor convictions involving moral turpitude. Chrisman v.
Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986).
Here, Boyd testified on his own behalf at trial. He
testified on direct examination that he had been convicted of "six
or maybe seven" felonies. He did not identify on direct
examination the name or nature of any of his felony convictions.
He also testified that he had been convicted of misdemeanors
involving moral turpitude.
On cross-examination, the following exchange took place
between the prosecutor and Boyd:
Q. And defense counsel had asked you about your criminal record. You have approximately eight felony convictions. Is that right?
A. Yes, sir — I mean, yes ma'am.
Q. Okay. And some of those are for lying, cheating or stealing. Is that correct?
A. I wouldn't say – I wouldn't say it exactly like that, lying, cheating or stealing. They was petit larcenies. You know what I mean? It was grand larceny, you know, but now — it wasn't for lying, cheating and stealing. That's what you trying to say.
Q. Lying, cheating or stealing. Let's focus on stealing. Were any of the felonies for any stealing kinds of crimes?
A. Yes. It was for petit larceny, yes.
Q. The felonies? You know a felony is a more serious crime?
- 3 - A. Yes.
Q. When your counsel asked you about felonies, do you understand what a felony is?
A. Yes, I do.
Q. Now, thinking back on your record, were any of those felonies, the serious ones, for involved — did those involve stealing?
A. No.
Boyd's counsel then objected, asserting that the Commonwealth
could not ask about the nature of Boyd's previous offenses. The
trial court overruled the objection, ruling that the Commonwealth
could ask Boyd if he had been convicted of a felony involving
lying, cheating, or stealing. The cross-examination continued as
follows:
Q. I'm going to ask again about the felonies, the serious crimes.
A. Yes, ma'am.
Q. Any of those crimes, not the petit larcenies or misdemeanors but the serious crimes, has to do with stealing?
A. No, ma'am. It was a drug offense, my serious charge that I went to the institution for.
Q. Okay. Would it refresh your recollection, or do you just not remember or are you just saying no, I had no felony crimes involving stealing?
A. I'm not saying that.
Q. But if you looked at your criminal record, might you remember if you had any crimes involving stealing that were serious crimes?
- 4 - A. Well, okay. Yes, I did. Yes, I did. Okay.
Q. Do you remember now?
A. I'm just saying for to answer your question correctly, you know what I mean, you saying did I have any felonies that is for lying, cheating or stealing. And as far as my recollection as do I have it? Yes, I do.
Q. Okay. And do you think there is probably three or four of those?
A. It may be, yes.
Because Boyd testified on direct examination that he had been
convicted previously of six or seven felonies, the Commonwealth
was permitted to question Boyd on cross-examination regarding the
correctness of the number stated. McAmis, 225 Va. at 422, 304
S.E.2d at 4. Once, however, Boyd testified truthfully that he had
been convicted of eight felonies, the Commonwealth was not
permitted to subsequently ask about the nature of his previous
felony convictions. Id. We hold, therefore, that the trial court
erred in allowing the Commonwealth to pursue its questioning of
Boyd regarding the nature of his previous felony convictions.
However, our inquiry does not end there. We must decide
whether the error requires reversal of Boyd's conviction. A
non-constitutional error by the trial court is harmless if
"it plainly appears from the record and the evidence given at the trial that" the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error
- 5 - not occurred, the verdict would have been the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc) (quoting Code § 8.01-678). "Each case
must . . . be analyzed individually to determine if an error has
affected the verdict." Id. at 1009, 407 S.E.2d at 913.
In this case, it plainly appears from the record and the
evidence given at the trial that the error did not affect the
jury's verdict. The victim unequivocally identified Boyd as the
person who robbed him. Furthermore, Boyd told the jury that he
had eight previous felony convictions and that he had been
convicted of misdemeanors involving moral turpitude. The
improperly elicited evidence was limited to Boyd's disclosure
that, of his eight felony convictions, one was for a drug
offense and three or four involved lying, cheating, or stealing.
No other details of those convictions were revealed.
Moreover, the trial court gave a limiting instruction that
told the jury that the evidence of other offenses could only be
considered for impeachment of the defendant and could not be
considered as evidence of his guilt. When, as here, the record
does not show otherwise, "it is to be presumed that the jury
followed an explicit cautionary instruction." Albert v.
Commonwealth, 2 Va. App. 734, 741, 347 S.E.2d 534, 538 (1986).
We can conclude, therefore, without usurping the jury's fact
finding function, that, had the erroneously permitted questions
- 6 - propounded to Boyd on cross-examination over defense counsel's
objection not been asked, the verdict would have been the same.
Accordingly, the error was harmless, and we affirm appellant's
conviction.
Affirmed.
- 7 -