Shifflett v. Commonwealth (ORDER) ( 2015 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 8th day of
January, 2015.
Galen Shifflett, Appellant,
against Record No. 140273
Court of Appeals No. 1675-12-3
Commonwealth of Virginia, Appellee.
Upon an appeal from a judgment rendered
by the Court of Appeals of Virginia.
Upon consideration of the record, briefs, and argument of
counsel, the Court is of opinion that the Court of Appeals of
Virginia did not err in ruling that any alleged error by the
Circuit Court of Rockingham County was harmless.
Galen Shifflett (Shifflett) was charged in the Circuit Court
of Rockingham County with aggravated sexual battery in violation of
Code § 18.2-67.3. A jury found Shifflett guilty, and he was fined
$15,000 and sentenced to five years’ imprisonment.
Shifflett appealed to the Court of Appeals, claiming that the
circuit court erred because it allowed the Commonwealth to cross-
examine him about whether a prior felony conviction involved lying,
cheating or stealing. The Court of Appeals decided in Shifflett v.
Commonwealth, Record No. 1675-12-3, 2014 Va. App. LEXIS 12, at *1,
*7-8 (Jan. 14, 2014) that even if the circuit court erred in
allowing the testimony, such error was harmless because other
corroborating facts bolstered the victim’s account of the events
compared to Shifflett’s. Thus, the Court of Appeals affirmed the
conviction.
At trial, the Commonwealth presented the testimony of the
alleged victim, Shifflett’s niece, that Shifflett fondled her
breasts. Shifflett testified that the accusations against him were
false.
Shifflett had previously been convicted of two felonies, one
of which was subornation of perjury under Code § 18.2-436. Outside
the presence of the jury, the Commonwealth argued that it should be
allowed to impeach Shifflett on cross-examination by asking him
about his subornation of perjury conviction, by name. The
Commonwealth asserted that the subornation conviction should be
deemed the same as a general perjury conviction. Shifflett
contended that the Commonwealth should not be allowed to mention
the crime by name. After hearing argument, the circuit court did
not permit the Commonwealth to mention the crime of subornation of
perjury by name, but ruled that the Commonwealth could ask
Shifflett if he had been convicted of a crime involving lying,
cheating or stealing.
Thereafter, on cross-examination the Commonwealth asked
Shifflett if he had been convicted of a felony or a misdemeanor
involving moral turpitude. He answered that he had been convicted
of two felonies. The Commonwealth then asked Shifflett if one of
the felonies had involved lying, cheating or stealing, and
Shifflett answered affirmatively. On appeal to this Court,
Shifflett argues that the Court of Appeals erred in not reversing
his conviction because the circuit court allowed the Commonwealth
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to impeach him by eliciting evidence that he had been convicted of
a felony involving lying, cheating or stealing.
Virginia statutory provisions and common law allow the
Commonwealth to impeach the credibility of a testifying criminal
defendant by asking if he has been convicted of a felony or a
misdemeanor involving moral turpitude. See, e.g., Code § 19.2-269;
Lincoln v. Commonwealth, 217 Va. 370, 374, 228 S.E.2d 688, 691
(1976) (citing McLane v. Commonwealth, 202 Va. 197, 203, 116 S.E.2d
274, 279-80 (1960)); Va. R. Evid. 2:609(a). Further, if the
conviction was for perjury, the name of the offense may be used to
impeach the defendant. See, e.g., McAmis v. Commonwealth, 225 Va.
419, 422, 304 S.E.2d 2, 4 (1983); Va. R. Evid. 2:609(a)(iii).
Our Court has stated that admission of the fact of conviction
of prior felonies or of misdemeanors involving lying, cheating or
stealing is allowed because the probative value of this information
in the jury’s determination of a defendant’s credibility as a
witness outweighs the prejudicial effect of the information upon
the jury’s determination of guilt or innocence. Harmon v.
Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971). Mention
of the name or further details of the prior crimes is not allowed
because of the potential prejudicial effect of such information on
the jury’s determination of the defendant’s guilt or innocence.
Id.
Under the common law, felonies were considered crimes that
reflected negatively upon the veracity of the defendant. Bell v.
Commonwealth, 167 Va. 526, 530-31, 189 S.E. 441, 443-44 (1937); see
also Chrisman v. Commonwealth, 3 Va. App. 89, 93-94, 348 S.E.2d
399, 401 (1986) (holding that felonies were "infamous" crimes of
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"moral turpitude" that "cast doubt on the veracity of the
convict"). Thus, unlike with a misdemeanor, there is no
requirement that it be stated that a felony involves moral
turpitude in order for a conviction thereof to be a basis for
impeachment of a witness’s credibility. A felony conviction is
probative of a witness’s veracity regardless of the substance of
the felony. Regarding a misdemeanor, the fact that it involves
moral turpitude is a necessary prerequisite for the conviction to
be probative in the jury’s determination of the witness’s
credibility.
Assuming, without deciding, that the circuit court erred when
it allowed the Commonwealth to ask Shifflett whether one of his
felony convictions involved lying, cheating or stealing, we hold
that the error was harmless. In this instance, because the
defendant was charged with sexual battery, the evidence that one of
his felony convictions involved lying, cheating or stealing would
only be evidence regarding his credibility, which was properly
impeached because of his prior felony convictions.
We will not reverse a trial court for evidentiary errors that
were harmless to the ultimate result. Under the harmless error
doctrine, if there was "a fair trial on the merits and substantial
justice has been reached, no judgment shall be arrested or reversed
. . . for any . . . defect, imperfection, or omission in the
record, or for any error committed on the trial." Code § 8.01-678.
In this case, we apply the standard for non-constitutional harmless
error, which is that such error is harmless if we can be sure that
it did not "influence the jury" or had only a "slight effect."
Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32
4
(2001)(quoting Kotteakos v. United States, 328 U.S. 750, 764-65
(1946)).
Information concerning the name or the details of a prior
crime of which a defendant has been found guilty, whether it is a
felony or a misdemeanor involving lying, cheating or stealing, is
not allowed into evidence because such information increases the
potential of prejudice to the defendant in the jury’s determination
of the defendant’s guilt or innocence regarding the crime charged.
Harmon, 212 Va. at 446, 185 S.E.2d at 51. Our Court has stated
that the reason such evidence is excluded is because "it may mean
more to them [the jury] than the mere fact that the defendant is a
person of doubtful veracity." Id. In Harmon, the defendant
charged with murder was being cross-examined about the details of a
prior killing he had previously perpetrated. Id. at 444-45, 185
S.E.2d at 50-51. However, as the United States Supreme Court has
noted in discussing the issue of identifying by name a defendant’s
prior conviction, where the prior offense is not similar to that
for which a defendant is presently on trial, its different nature
means "that its potential to prejudice the defendant unfairly will
be minimal." Old Chief v. United States, 519 U.S. 172, 185 (1997).
In this instance, the additional information allowed into
evidence regarding Shifflett’s felony conviction, that it involved
lying, cheating or stealing, did not convey anything more than "the
mere fact that the defendant is a person of doubtful veracity."
See Harmon, 212 Va. at 444-46, 185 S.E.2d at 50-51. It had no
prejudicial effect as to his guilt or innocence of sexual battery.
In other words, the fact that one of his felony convictions
5
involved lying, cheating or stealing did not in any way suggest to
the jury that he might be more inclined to commit a sexual battery.
In prosecutions for other offenses, the disclosure of
information that a defendant has been convicted of a felony
involving lying, cheating or stealing might have a prejudicial
effect on the jury’s determination of guilt or innocence because
the specific crime alleged involves lying, cheating or stealing.
See, e.g., Payne v. Carroll, 250 Va. 336, 340, 461 S.E.2d 837, 839
(1995) (holding that mentioning that a party defendant had a prior
felony conviction involving fraud could mean more to the jury than
she was a person of doubtful veracity because the civil case
involved allegations of her committing fraud). However, this case
involves allegations of sexual battery. Therefore, the evidence
that one of Shifflett’s prior felony convictions involved lying,
cheating or stealing was only probative of his credibility, which
was already properly impeached by evidence of his felony
convictions. Having reviewed the whole record, including the
testimony of all witnesses, we can conclude with fair assurance
that Shifflett received a fair trial because the alleged error did
not influence the jury or, at most, had only a slight effect.
Thus, such error was harmless.
For these reasons, the Court affirms the judgment of the Court
of Appeals. The appellant shall pay to the Commonwealth of Virginia
two hundred and fifty dollars damages.
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This order shall be certified to the Court of Appeals of
Virginia and to the Circuit Court of Rockingham County, and shall
be published in the Virginia Reports.
_______________
SENIOR JUSTICE KOONTZ, with whom JUSTICE MILLETTE and JUSTICE
POWELL join, dissenting.
I respectfully dissent. In my view, the circuit court erred
in permitting the Commonwealth to cross-examine Galen Shifflett
about whether either of his two prior felony convictions were for
crimes involving "lying, cheating or stealing," and, further I
conclude that this error was not harmless based on the record
before us in this appeal.
Shifflett was indicted for aggravated sexual battery by force,
threat or intimidation of a victim 13 or 14 years of age. Code
§ 18.2-67.3. Shifflett had previously been convicted of the felony
of eluding police, Code § 46.2-817, and the felony of subornation
of perjury, Code § 18.2-436.
Shifflett elected to testify at his trial. When an accused
elects to testify in his own defense, he places his credibility at
issue. In such cases, upon cross-examination of the accused, the
Commonwealth is entitled to cast doubt upon the veracity of the
accused by placing into evidence his prior criminal history.
However, in order to protect against undue prejudice resulting from
such evidence, the scope of the permissible cross-examination by
the Commonwealth has long been limited by common law, statute, the
decisions of this Court, and by the recently adopted Virginia Rules
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of Evidence. See, e.g., Code § 19.2-269; Va. R. Evid.
2:609(a)(iii); Sadoski v. Commonwealth, 219 Va. 1069, 1070, 254
S.E.2d 100, 101 (1979); Harmon v. Commonwealth, 212 Va. 442, 446,
185 S.E.2d 48, 51 (1971). In sum, as the majority here correctly
relates, the Commonwealth is permitted to impeach the credibility
of the accused by inquiring on cross-examination whether the
accused previously has been convicted of any felony or a
misdemeanor involving moral turpitude. The Commonwealth is
permitted to establish the number of any such convictions, but not
the name or nature of the underlying crimes. The sole exception is
that the Commonwealth may elicit evidence of a conviction for
perjury by name.
Shifflett had two misdemeanor convictions which were not for
crimes of "moral turpitude," and thus were not proper evidence for
impeachment. However, his felony convictions for eluding police
and subornation of perjury were properly subject to use for
impeachment purposes. Evidence of the latter conviction became the
focus of this appeal.
By a motion made during trial, Shifflett sought a ruling from
the circuit court that would have limited the Commonwealth's cross-
examination regarding his conviction for suborning perjury. He
contended that the Commonwealth should be permitted to establish
only the fact of this felony conviction but not the name of the
underlying crime. Shifflett conceded that Code § 19.2-269 (and Va.
R. Evid. 2:609(a)(iii)) permits naming perjury specifically, but
contended that this refers to the specific crime defined under Code
§ 18.2-434, not the separate crime of subornation of perjury
defined under Code § 18.2-436. The Commonwealth responded that
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subornation of perjury, although defined as a separate crime in the
Code, is a "class of perjury" because it is "punished as prescribed
in § 18.2-434." Thus, the Commonwealth asserted that Code
§ 19.2-269 was "broad enough" to allow impeachment by naming the
offense of subornation of perjury.
The Commonwealth also asserted that it had the right to ask
Shifflett whether he had ever been convicted of any crime involving
lying, cheating or stealing. The Commonwealth maintained that it
was not required to "use the phrase a crime of moral turpitude" and
this was so whether the conviction was for a misdemeanor or a
felony. The Commonwealth then advised the circuit court that "if
[Shifflett] takes the stand I am going to ask him whether he's been
convicted of any felony involving lying, cheating or stealing. And
his answer will determine whether or not I have the ability to
present anything else." The circuit court, noting Shifflett's
exception, ruled that it would permit the Commonwealth to ask
Shifflett whether he had been convicted of any felony involving
"lying, cheating or stealing."
Shifflett's sole assignment of error raises the issue whether
the circuit court erred in permitting the Commonwealth to cross-
examine him regarding the nature of either of his two prior felony
convictions as involving lying, cheating or stealing. Shifflett
contends that the Commonwealth should have been permitted to adduce
that he had been convicted of two felonies, and nothing more. The
Commonwealth, by assignment of cross-error, contends that the Court
of Appeals of Virginia erred in failing to expressly hold that
Shifflett could have been properly impeached under Code § 19.2-269
by naming his prior suborning perjury conviction.
9
In the majority opinion of a divided panel of the Court of
Appeals, Shifflett v. Commonwealth, Record No. 1675-12-3, 2014 Va.
App. LEXIS 12, at *1 (January 14, 2014), and in this Court's order
today, neither issue raised by the parties is addressed by simply
"[a]ssuming, without deciding," that the action of the circuit
court was error. The majority in each decision then finds, albeit
by different rationales, that such error was harmless. Because, in
my view, the provisions of Code § 19.2-269 (and Va. R. Evid.
2:609(a)(iii)) plainly indicate that the circuit court erred, such
an assumption is both unnecessary and unhelpful to the trial courts
and the bar, which undoubtedly would welcome guidance regarding the
error in this case.
Perjury is a specific crime defined by Code § 18.2-434, in
pertinent part, as the act of a person who under oath "willfully
swears falsely on such occasion touching any material matter or
thing." Code § 18.2-435 further provides that "[i]t shall likewise
constitute perjury for any person, with the intent to testify
falsely," to give conflicting statements under oath in separate
proceedings.
By contrast, Code § 18.2-436 defines subornation of perjury as
procuring or inducing another to commit perjury. Although this
crime "shall be punished as prescribed in § 18.2-434," the statute
does not, as is the case in Code § 18.2-435, state that subornation
of perjury "constitute[s] perjury." It is thus clear that the
legislature intended to define perjury and subornation of perjury
as separate and distinct crimes, albeit crimes deserving of the
same punishment.
10
"Statutes which are not inconsistent with one another, and
which relate to the same subject matter, are in pari materia, and
should be construed together; and effect should be given to them
all, although they contain no reference to one another." White v.
Commonwealth, 203 Va. 816, 819, 127 S.E.2d 594, 596 (1962)(internal
quotation marks and citation omitted). We must assume that in
using the term "perjury" in Code § 19.2-269, the General Assembly
was aware that it had defined that crime in Code §§ 18.2-434 and
18.2-435. Accordingly, as used in Code § 19.2-269, the word
"perjury" cannot be expanded beyond the definition found in Code
§§ 18.2-434 and 18.2-435 to include subornation of perjury, a
separate crime both at common law and under the Code. In order to
adopt the Commonwealth's construction of Code § 19.2-269, we would
have to "add language to the statute . . . [or] accomplish the same
result by judicial interpretation," which is not within the
province or power of this Court. Jackson v. Fidelity & Deposit
Co., 269 Va. 303, 313, 608 S.E.2d 901, 906 (2005).
Because the Commonwealth was not permitted to impeach
Shifflett by naming his felony conviction as subornation of
perjury, it is self-evident that the circuit court should not have
permitted the Commonwealth to inquire into the nature of that
offense as involving "lying, cheating or stealing." While such
questions are proper with regard to a prior misdemeanor conviction
of the accused, conviction of a felony is, without more, the basis
for impeaching the credibility of the accused. Code § 19.2-269;
Va. R. Evid. 2:609(a)(iii). Characterizing a particular felony as
a crime involving "lying, cheating or stealing" unduly emphasizes
the nature of the crime and, moreover, exceeds the limitation on
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the Commonwealth's right to cross-examine the accused with regard
to his criminal history. For these reasons, in my view, the
circuit court erred in permitting the Commonwealth to inquire into
the nature of Shifflett's felony convictions.
I also cannot agree with the majority that this error was
harmless. The majority is correct that the improper admission of
impeachment evidence does not amount to error of constitutional
dimension and, thus, under Clay v. Commonwealth, 262 Va. 253, 259,
546 S.E.2d 728, 731 (2001), reviewing courts cannot assume
harmless error and must instead examine the entire record in order
to decide whether "alleged error substantially influenced the
jury." I further agree with the majority, citing Old Chief v.
United States, 519 U.S. 172, 185 (1997), that in the typical case
where improper impeachment is not similar to the offense for which
a defendant is on trial, there is less potential that the evidence
will be considered for an improper purpose or unduly prejudice the
defendant's credibility in the eyes of the jury.
However, this is not the typical case. Throughout the trial,
both the Commonwealth and Shifflett placed particular emphasis on
the competing credibility of the complaining witness and Shifflett,
and whether there was a motivation for either to fabricate
testimony. Shifflett emphasized that the alleged victim was having
difficulty with her father's relationship with his girlfriend,
implying that she may have fabricated the assault allegation in an
effort to have her father "pay more attention to me." The
Commonwealth emphasized the fact of the complaining witness' recent
report of the alleged assault and Shifflett's lack of credibility
because of his prior felony convictions. Indeed, in Shifflett's
12
motion to strike the Commonwealth's evidence at the close of the
case, the circuit court stated, "Basically we have a factual
question and it's going to be credibility and it's a jury
question."
The harm of improper impeachment of a witness is that it both
damages the witness's credibility and prejudices the jury against
the witness's character. See Payne v. Carroll, 250 Va. 336, 340,
461 S.E.2d 837, 838-39 (1995) (holding that improper impeachment
renders the witness not only unworthy of belief in the eyes of the
jury "but also morally undeserving" of a favorable verdict). In
the present case, determining the credibility of the complaining
witness and Shifflett was the paramount issue to be resolved by the
jury.
In the absence of any independent witness testimony or
forensic evidence that an assault occurred, the sole aspect of the
Commonwealth's case corroborating the testimony of the complaining
witness was her recent complaint of the alleged assault. Code
§ 19.2-268.2. Under these circumstances, permitting the
Commonwealth to improperly impeach Shifflett's credibility by
denominating one of his felony convictions as involving "lying,
cheating or stealing" undoubtedly substantially influenced the
jury's view of his testimony that no assault occurred and his
theory that the complaining witness had an ulterior motive for
fabricating the accusation. Accordingly, it cannot be concluded
that Shifflett received a fair trial, Code § 8.01-678, and that the
error did not prejudice the jury's determination of his guilt.
For these reasons, I would reverse the judgment of the Court
of Appeals, set aside Shifflett's conviction, and remand the case
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to the circuit court with instructions for a new trial if the
Commonwealth be so advised.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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