Jerome Evans v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
JEROME EVANS
v. Record No. 0870-95-2 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA APRIL 2, 1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney
General, on brief), for appellee.
Jerome Evans (defendant) was convicted by a jury for
statutory burglary. During the sentencing phase of a bifurcated
trial, the court permitted the Commonwealth to introduce evidence
of defendant's prior larceny conviction. Defendant complains on
appeal that the Commonwealth failed to comply with Code
§ 19.2-295.1, thereby rendering such evidence inadmissible. We
disagree and affirm the judgment of the trial court.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal.
The relevant procedural history is uncontroverted. The
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth offered into evidence "defendant's prior criminal
convictions by certified . . . copies of the record of
conviction" pursuant to Code § 19.2-295.1. 1 Defendant objected
to the introduction of a certain record of conviction for
larceny, arguing that the Commonwealth had previously provided
defendant with only a copy of the "front side" of the related
"warrant of arrest," rather than a certified copy of the
"criminal conviction" in accordance with Code § 19.2-295.1. 2 The
trial court, however, admitted the evidence, concluding that the
"warrant of arrest" provided defendant sufficient
"notice . . . that it was a conviction."
At the time of trial, Code 19.2-295.1 provided in pertinent
part:
The Commonwealth shall provide to the
defendant fourteen days prior to trial
photocopies of certified copies of the
defendant's prior criminal convictions
which it intends to introduce at sentencing.
(Emphases added). This statute "does not convey a substantive
right" and is "[p]rocedural in nature." Riley v. Commonwealth,
21 Va. App. 330, 337-38, 464 S.E.2d 508, 511 (1995); see J.B. v.
1
Following defendant's trial, Code § 19.2-295.1 was amended
to require the Commonwealth to provide defendant "notice of its
intention to introduce evidence of the defendant's prior criminal
convictions" and prescribes the form and content of such notice.
2
The conviction was noted on the back of the warrant.
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Brunty, 21 Va. App. 300, 303-05, 464 S.E.2d 166, 168-69 (1995).
Thus, the applicable language of Code § 19.2-295.1 was merely
directory and "'precise compliance [was] not . . . essential to
the validity of the proceedings . . . .'" Commonwealth v.
Rafferty, 241 Va. 319, 324, 402 S.E.2d 17, 20 (1991) (citation
omitted); see Cheeks v. Commonwealth, 20 Va. App. 578, 582, 459
S.E.2d 107, 109 (1995).
Here, the defendant received a photocopy of the front side
of the "warrant for arrest" relating to the conviction in issue.
While this portion of the warrant did not reflect the
conviction, defendant was clearly notified of the Commonwealth's
intention to introduce such evidence during the sentencing phase
of trial. Thus, the Commonwealth's failure to precisely comply
with the procedural requirements of Code § 19.2-295.1 violated no
substantive right and resulted in no prejudice to defendant.
Accordingly, we find that the trial court correctly admitted
evidence of the prior larceny conviction and affirm the judgment.
Affirmed.
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