Gregory Boyd v. Commonwealth of Virginia ( 2001 )

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
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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?
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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?
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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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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
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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.
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