Washington v. Commonwealth

616 S.E.2d 774, 46 Va. App. 276, 2005 Va. App. LEXIS 320

• Court: Court of Appeals of Virginia
• Decided: August 9, 2005
• Docket: Record No. 1734-03-4
• Status: Published

Opinions

UPON REHEARING EN BANC

KELSEY, Judge.

Phillip Morris Washington challenges his conviction for malicious wounding “after having been twice convicted of a violent felony” in violation of Code § 18.2-51 and § 19.2-297.1. On appeal, Washington contends that the trial judge erred in permitting the Commonwealth to prove his two prior robbery convictions during the guilt phase of the bifurcated trial. Finding no error, we affirm the judgment of the trial court.

I.

Prior to trial, Washington filed a motion in limine to prohibit the prosecutor from introducing evidence of his two prior robbery convictions during the guilt phase of the trial. Washington asserted the prior convictions were not “relevant and probative” and would be “unduly prejudicial” during the guilt phase of the trial. The trial court disagreed, holding that Code § 19.2-297.1—like all other Virginia recidivism statutes—permitted the introduction of the prior convictions during the guilt phase. The jury found Washington guilty of malicious wounding “after having been twice convicted of a violent felony” in violation of Code § 18.2-51 and § 19.2-297.1. The jury imposed a life sentence as required by Code § 19.2-297.1.

II.

On appeal, Washington argues that Code § 19.2-297.1 forbids the introduction of his prior robbery convictions in the guilt phase of his jury trial. As Washington sees it, Code § 19.2-297.1 serves only as a sentencing enhancement statute—thus making his prior felony convictions relevant in the punishment phase of the trial, but not the guilt phase. A divided panel of our Court agreed with this reasoning. Washington v. Commonwealth, 44 Va.App. 157, 604 S.E.2d 92 (2004). Having considered the matter en banc, we hold the statute does not forbid the recidivism evidence from being presented in the guilt phase of a jury trial.

A. Recidivism & The Common Law

Though the common law did not create recidivist crimes as such, it did develop a well-recognized order of proof in such cases. “At common law, evidence of prior convictions was received at the trial of the principal offense, and the jury decided guilt and recidivism simultaneously.” Recidivism & Virginia’s Come-Back Law, 48 Va. L.Rev. 597, 613 (1962). This “common law procedure for applying recidivist statutes ... is, of course, the simplest and best known procedure.” Spencer v. Texas, 385 U.S. 554, 566, 87 S.Ct. 648, 655, 17 L.Ed.2d 606 (1967) (holding common law recidivism procedure did not violate due process principles).¹

As a result, “in the absence of a statute in derogation of the common law, most jurisdictions have refused to deviate from the old practice.” Recidivism & Virginia’s Come-Back Law, supra, at 613-14.² “It is not easy to see how, in the absence of some statutory provision permitting it,” a defendant can insist that the prior convictions be excluded from the guilt phase of the principal charge. People v. Sickles, 156 N.Y. 541, 51 N.E. 288, 289 (1898). The common law, moreover, rejected any “legal presumption” that ordering the proof in this manner would compromise the integrity of the trial. Johnson v. People, 55 N.Y. 512, 514 (1874).

Consistent with the common law, the Virginia Penitentiary Act of 1796 allowed recidivism convictions to be admitted during the trial. See 1796 Va. Acts, ch. 2, §§ 24, 42, modified by Revised Code of 1819; see also Tyson v. Hening, 205 Va. 389, 392, 136 S.E.2d 832, 835 (1964). The Act also permitted a separate supplemental proceeding in the Richmond Circuit Court solely to determine a prisoner’s recidivism status and to enhance the aggregate punishment accordingly. Id. Admitting the prior conviction at trial, however, met with disfavor in the courts. Some Virginia jurists considered it akin to “trying a man with a rope about his neck.” Wright v. Commonwealth, 109 Va. 847, 855, 65 S.E. 19, 22 (1909) (quoting Rand v. Commonwealth, 50 Va. (9 Gratt.) 738, 753 (1852)).

The General Assembly responded in 1918 by amending the Penitentiary Act—then called the Virginia Habitual Criminal Act—to employ the supplemental proceeding in the Richmond Circuit Court as the exclusive means of imposing the recidivism sentencing enhancement. Former Code § 5054 (1919). This “non-common law method” of addressing the issue remained the law in Virginia for many years. Recidivism & Virginia’s Come-Back Law, supra, at 600-01.

In 1982, the General Assembly repealed the Virginia Habitual Criminal Act authorizing the supplemental recidivism proceeding. 1982 Va. Acts, ch. 636 (rescinding Code § 53-296). By that time, the legislature had enacted several crime-specific recidivism statutes.³ See generally Ansell v. Commonwealth, 219 Va. 759, 762, 250 S.E.2d 760, 762 (1979). And, to a one, each such statute has been interpreted by Virginia courts to allow recidivism evidence to be presented during the guilt phase of trial.⁴ See, e.g., Medici v. Commonwealth, 260 , 532 S.E.2d 28, 31-32 (2000) (interpreting Code § 18.2-67.5:3(A)).⁵

B. The Interplay Between Code §§ 19.2-297.1 & 19.2-295.1

In Virginia, the “Legislature is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law.” Moses v. Commonwealth, 45 Va.App. 357, 361 n. 2, 611 S.E.2d 607, 609 n. 2 (2005) (en banc) (quoting Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)). Along similar lines, we “assume legislative familiarity with Virginia case law when the legislature enacts a statute which might impact upon that law.” Dodson v. Potomac Mack Sales & Serv., Inc., 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991); see also Waterman v. Halverson, 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001) (“The General Assembly is presumed to be aware of the decisions of this Court when enacting legislation.”).

Seeking a construction consistent with common law practice and our caselaw, we turn to Code § 19.2-297.1. Enacted in 1994, subsection A of the statute addresses recidivism involving crimes of violence:

Any person convicted of two or more separate acts of violence when such offenses were not part of a common act, transaction or scheme, and who has been at liberty as defined in § 53.1-151 between each conviction, shall, upon conviction of a third or subsequent act of violence, be sentenced to life imprisonment and shall not have all or any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of two or more such acts of violence.

The General Assembly coupled this recidivism statute with the jury bifurcation statute, Code § 19.2-295.1, enacting both in the same bill. See 1994 Va. Acts, ch. 828 (S.B.117).

The jury bifurcation statute requires a “separate proceeding limited to the ascertainment of punishment” before the same jury deciding the defendant’s guilt. Code § 19.2-295.1. It authorizes the prosecution to introduce into evidence only the defendant’s “prior criminal convictions by certified, attested or exemplified copies of the record of conviction.” Id. Rule 3A:17.1(e)(1) repeats this limitation. If the defense does not put on evidence, the prosecution cannot go any further than introducing the conviction orders.⁶ Only when the defense puts on mitigation evidence may the prosecution then rebut it with any “relevant, admissible evidence related to punishment.” Code § 19.2-295.1.

Conspicuously absent from the jury bifurcation statute and Rule 3A:17.1 is any authority for the prosecution to present substantive evidence (through witnesses and exhibits) showing how the prior convictions were not part of a “common act, transaction or scheme” or whether the defendant was “at liberty” between each such conviction—two matters on which the prosecution bears the burden of proof under Code § 19.2-297.1(A). If the defendant does not concede these two points, neither can be invariably assumed from the conviction orders themselves. Final conviction and sentencing orders say nothing about the underlying crime’s relationship to other crimes. Nor do such orders, particularly those entered before the abolition of parole, identify the actual period of incarceration.

While not saying as much, Washington appears to assume the evidentiary limitation in the jury bifurcation statute was a mere legislative oversight. The bifurcation statute, he reasons, should allow in the penalty phase any evidence required by any recidivism statute—not just copies of the prior conviction orders. The only way to sustain that position, however, would be to “judicially graft” an unwritten provision into the statute, Cent Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va.App. 264, 280, 590 S.E.2d 631, 640 (2004), under the subtle “guise of judicial interpretation,” Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991). It may or may not be better public policy to structure recidivism proof differently. When interpreting statutes, however, such judgments are not ours to make. Cf. McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (observing that judicial statutory construction cannot proceed “upon the speculation that, if the legislature had thought of it, very likely broader words would have been used”).

That said, we accept some potential for prejudice likely accompanies the common law order of proof. It is for just this reason that we give cautionary instructions directing jurors to consider the admissible, but not inadmissible, aspects of recidivism evidence. Washington finds this remedy both naive and illusory. If it is, though, the same can be said of Washington’s proposed remedy. The violent recidivist statute requires the jury to determine three things:

• whether at least two prior violent felony convictions exist,

• whether any were part of “a common act, transaction or scheme,” and

• whether the defendant was “at liberty” between each such conviction.

Code § 19.2-297.1(A). If the jury finds against the defendant on all three, he receives a mandatory life sentence—a punishment far in excess of the average term of years for the principal crime.

If forced to decide the recidivism questions during the penalty phase of a bifurcated trial, the jurors would have to do so at the same time as receiving evidence of every other criminal conviction the defendant ever received. And if the defendant puts on mitigation evidence suggesting his good character and capacity at self-reformation, the jurors would also likely hear from the prosecution on rebuttal all about his bad character and the demonstrably poor odds of his rehabilitation.

To ensure that jurors do not invoke the violent recidivist statute as an emotional response to the defendant’s nonviolent criminal past or his propensity generally for crime, we would necessarily have to give them a cautionary instruction— the very thing Washington says we cannot rely upon. To be sure, the only way to completely avoid the possibility of prejudice would be to trifurcate the case between a guilt phase addressing the principal crime, followed by a guilt phase dealing with Code § 19.2-297.1(A)’s recidivism evidence, later followed by a general sentencing hearing for everything else properly admitted under Code § 19.2-295.1 on the general subject of punishment. While a trial judge may have the discretion to segment a criminal trial in this manner, we know of no authority requiring him to do so.⁷

III.

Consistent with common law practice and settled Virginia caselaw, we hold that the recidivism evidence necessary to implicate the terms of Code § 19.2-297.1 may be admitted during the guilt phase of a bifurcated jury trial.⁸ The trial court, therefore, did not err in this case by structuring the order of proof in this manner.

Affirmed.

1 . See generally Harold Dubroff, Recidivist Procedures, 40 N.Y.U. L.Rev. 332, 336 (1965) (describing the "common law procedure” as one "in which the issue of guilt for the present offense and the issue of recidivism are determined simultaneously” by the same trier of fact), and David S. Sidikman, The Pleading & Proof of Prior Convictions in Habitual Criminal Prosecutions, 33 N.Y.U. L.Rev. 210, 211 (1958) (recognizing that the "common-law method requires both an allegation of the former conviction in the present indictment or information and proof of that allegation at the trial of the new charge”)—both cited in Spencer, 385 U.S. at 566 n. 10, 87 S.Ct. at 655 n. 10; see also Louise Danaé Dale, Criminal Law: Procedure: Propriety of Jury Consideration of Prior Offenses, 5 UCLA L.Rev. 320, 321 (1958) ("The early English common-law allowed the allegation of former conviction to be included in the indictment and read to the jury.” (citing Rex v. Jones, 6 Car. & P. 391, 172 Eng. Rep. 1290 (1834))).

2 . See also State v. Findling, 123 Minn. 413, 144 N.W. 142, 143 (1913) (following the "general rule” allowing evidence of the prior convictions during the guilt phase of trial); Maguire v. State, 47 Md. 485, 497 (1878) (observing that "the practice in England, until changed by statute, was, as it is here, to allow the prosecution to put the prior conviction before the jury as part of its evidence in chief, and before the accused commenced his evidence” in defense (citing Rex v. Jones, 6 Car. & P. 391, 172 Eng. Rep. 1290 (1834))).

3 . See, e.g., Code § 18.2-104 (misdemeanor larceny); § 18.2-232 (fraud in sale of fuels or oils); § 18.2-248 (possession with the intent to distribute or distributing controlled substances); § 18.2-270 & -271 (driving while intoxicated); § 18.2-381 (obscenity generally). Since then, the General Assembly has enacted several more: Code § 18.2-46.3:1 (street gang crimes); § 18.2-67.5:1 to-67.5:3 (sexual offenders); § 18.2-144 (maiming, killing or poisoning of animals); § 18.2-246.14 (sale of counterfeit cigarettes); § 18.2-255.2 (sale of drugs near certain properties); § 18.2-258 (drug related common nuisances); § 18.2-311.2 (firearm offenses); § 18.2-369 (abuse/neglect of incapacitated adults); § 18.2-374.1:1 (possession of child pornography); § 18.2— 376.1 (using a computer in connection with certain obscenity offenses); § 18.2-515 (racketeering).

4 . See also Griswold v. Commonwealth, 252 Va. 113, 116 & n. 2, 472 S.E.2d 789, 790 & n. 2 (1996) (overruled on other grounds by Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002)) (stating that "the prior offense must be charged and proven” (quoting Calfee v. Commonwealth, 215 Va. 253, 255, 208 S.E.2d 740, 741 (1974))); Brown v. Commonwealth, 226 Va. 56, 58, 307 S.E.2d 239, 240 (1983); Commonwealth v. Ellett, 174 Va. 403, 409, 413, 4 S.E.2d 762, (1939); Berry v. Commonwealth, 22 Va.App. 209, 213, 468 S.E.2d 685, 687 (1996) (holding the conviction “of a prior like offense is an element of the charge as it was set forth in the indictment, and is also a necessary predicate to an enhanced penalty”); Dotson v. Commonwealth, 18 Va.App. 465, 467-68, 445 S.E.2d 492, 493-94 (1994); Pittman v. Commonwealth, 17 Va.App. 33, 35-36, 434 S.E.2d 694, 695-96 (1993); Farmer v. Commonwealth, 10 Va.App. 175, 179-80, 390 S.E.2d 775, 776-77 (1990), aff'd, 12 Va.App. 337, 404 S.E.2d 371 (1991) (en banc); Glover v. Commonwealth, 3 Va.App. 152, 161, 348 S.E.2d 434, 441 (1986), aff'd, 236 Va. 1, 372 S.E.2d 134 (1988).

5 . It is true, as Washington points out, that Medici disclaimed any interest in addressing "policy” judgments about the subject or deciding whether "a prior conviction is an element of the offense charged.” Id. at 229, 532 S.E.2d at 32. But we do not think these caveats mean that Medici left open the question whether prior convictions could be introduced in the guilt phase. If the statute forbids this, as Washington claims, there would have been no logical reason for Medici to declare constitutional the statute’s effort to authorize it. In other words, we think it too unlikely to be true that Medici intended to declare a statute—albeit wrongly interpreted by the challenger on the very point in contest—to be constitutional when the correct interpretation of the statute would moot the constitutional challenge altogether.

6 . See generally Jaccard v. Commonwealth, 268 Va. 56, 597 S.E.2d 30 (2004) (holding that Code § 19.2-295.1 authorizes the admission of conviction orders, but by omission, does not authorize the admission of probation violation orders); Sheikh v. Buckingham Corr. Ctr., 264 Va. 558, 566, 570 S.E.2d 785, 789 (2002) (holding that the defendant’s "decision not to present evidence during the sentencing phase precluded the prosecutor from introducing any evidence other than a record of [defendant’s] prior offenses”).

7 . We also reject Washington's argument that the particular placement of Code § 19.2-297.1 in Chapter 18 of Title 19.2 (entitled "Sentence; Judgment; Execution of Sentence”) implies that the recidivism statute should be considered purely a tool of sentencing. In Brown v. Commonwealth, 226 Va. 56, 307 S.E.2d 239 (1983), the Court addressed former Code § 19.2-297, a recidivism statute creating a compound larceny offense. It too was codified in Chapter 18 of Title 19.2. Brown nonetheless held the recidivism evidence should be admitted during the guilt phase of the trial. Id. at 58-59, 307 S.E.2d at 240-41. The statute’s particular placement in the Code appeared to have no legal relevance to the reasoning of Brown. We can hardly hold it has dispositive relevance here. As a general rule, "the title of a statute does not give meaning to a statute.” Foster v. Commonwealth, 44 Va.App. 574, 580, 606 S.E.2d 518, 521 (2004) (citing Code § 1-13.9). All the more, we cannot extrapolate a statute's meaning from the title of a Code chapter.

8 . Because Code § 19.2-297.1(A) allows recidivism evidence to be admitted during the guilt phase, we do not address whether admitting such evidence in the sentencing phase would implicate the constitutional concerns raised by the concurrence.