Olen A. Lebby v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
OLEN A. LEBBY
v. Record No. 0617-94-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA AUGUST 22, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Crystal A. Meleen, Assistant Public Defender (Office of the
Public Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Olen A. Lebby (appellant) was convicted in a jury trial of
possession of a firearm after having been convicted of a felony
in violation of Code § 18.2-308.2(A). On appeal, he argues that
the trial court erred in: (1) admitting into evidence the
identity of the victim of his prior felony as a Washington, D.C.
police officer, and (2) finding that the evidence was sufficient
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to establish his prior felony conviction. For the reasons that
follow, we reverse the conviction and remand the case for
retrial.
On October 21, 1993, Officer William Haire (Haire) of the
Fairfax County Police Department received information that a
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
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Appellant raises several other issues, including whether
the evidence was sufficient: (1) to establish that the gun found
in the jacket was a firearm under Code § 18.2-308.2, and (2) to
show that appellant possessed the gun. We hold that the evidence
was sufficient to prove that appellant possessed a firearm.
suspect had brandished a handgun. A radio transmission described
the suspect and his car, and stated that he was travelling to the
Alexandria Motel. Haire went to the motel and saw the suspect
vehicle arrive twelve to fifteen minutes later. Haire searched
the vehicle and found a brown leather jacket between the front
bucket seats. He felt a hard object inside the jacket and pulled
out a loaded 9 mm. Beretta handgun.
Haire advised appellant of his rights and told him that he
was charging him with possession of a firearm after being
convicted as a felon. Haire said: "I have reason to believe
that you were charged and convicted in the homicide death of a
[Washington,] D.C. police officer . . . ." Appellant responded:
"Yeah, I killed a D.C. cop." Before trial, appellant made a
motion in limine to exclude the murder victim's employment as a
D.C. police officer because of its highly prejudicial nature and
lack of relevance to any issue at trial. The Commonwealth
asserted that appellant's statement was necessary to show "that
the person listed on the indictment in the District of Columbia
. . . was in fact this person," even though nothing on the
indictment indicated that the victim was a police officer. The
trial judge refused to exclude the statement or redact it to
delete the victim's occupation as a police officer.
At trial, the Commonwealth's attorney did not limit the use
of the statements and emphasized the murder victim's identity as
a District of Columbia police officer in opening argument:
[Haire told appellant that] [y]ou're being
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arrested because it's my impression that you
shot and killed, in nineteen-seventy-five, a
District of Columbia police officer. And the
defendant's response was yes, I shot and
killed a cop.
Similarly, the Commonwealth's attorney argued in closing:
April second, nineteen-seventy-five, the
Grand Jury of the District of Columbia
charged this defendant with malice
aforethought for shooting Vernon Johnson, a
District of Columbia police officer, with a
pistol, thereby causing injuries from which
the said Vernon Johnson died on or about
April second, nineteen-seventy-five.
It doesn't say he was a District of
Columbia police officer in the Grand Jury
indictment, defendant admitted that to
Officer Haire.
At the in limine hearing, appellant also objected to
Commonwealth's Exhibit 1, documentary evidence including two
pages: (1) the second-degree murder indictment, listing the
murder victim as "Vernon Johnson" and designating the count as
"B," and (2) a form indicating a guilty judgment for count "B."
Appellant argued that the two pages were not an adequate record
of conviction. However, the trial judge allowed the use of these
documents and stated: "I find that the document as presented is
a record of conviction according to them. And I think that is
sufficient at this point." Appellant was found guilty and
sentenced to the maximum penalty of five years in the
penitentiary.
ADMISSIBILITY OF MURDER VICTIM'S IDENTITY
Appellant argues that the trial court erred in admitting
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into evidence his response to Haire's question that he had killed
a District of Columbia police officer. He contends that the
admission of the murder victim's identity as a police officer was
highly prejudicial and had little, if any, probative value.
"As a general rule, proof of other crimes is incompetent and
inadmissible to show commission of the crime charged." Tuggle v.
Commonwealth, 228 Va. 493, 506, 323 S.E.2d 539, 547 (1984),
vacated and remanded on other grounds, 471 U.S. 1096 (1985).
"[E]vidence of other crimes may be admissible if introduced to
prove an element of the offense charged, or to prove any number
of relevant facts, such as motive, intent, agency, or knowledge."
Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229,
234 (emphasis added), aff'd on reh'g, 17 Va. App. 248, 436 S.E.2d
193 (1993) (en banc). "Even if the other crime falls within an
exception to the general rule, it only is admissible '[w]henever
the legitimate probative value outweighs the incidental prejudice
to the accused.'" Tuggle, 228 Va. at 506, 323 S.E.2d at 547
(quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890,
893 (1983)).
We hold that the trial court properly admitted the fact that
appellant's prior felony was murder. See Essex v. Commonwealth,
18 Va. App. 168, 171-72, 442 S.E.2d 707, 709-10 (1994). To prove
that appellant violated Code § 18.2-308.2(A), the Commonwealth
had to show that appellant had been convicted of a felony and
possessed a firearm. However, the trial court erred in allowing
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into evidence the identity of the murder victim as a District of
Columbia police officer. The issue at trial was not who was the
victim of the prior felony, but rather only whether appellant had
committed a felony.
We recognize that "the admissibility of evidence is within
the broad discretion of the trial court." Blain v. Commonwealth,
7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However, the
statements as submitted had minimal probative value and were
highly prejudicial in that the natural inference to be drawn was
that appellant had killed a police officer in the line of duty,
which was not the case. Furthermore, the statements did not
provide a necessary link between the indictment and appellant
because the indictment did not indicate that Vernon Johnson was a
police officer. Additionally, the jury could have inferred that
it was the same Olen Lebby in the indictment and on trial without
the statements being introduced into evidence. At the in limine
hearing, the Commonwealth proffered to the court that use of the
statement would establish that appellant was the same Olen Lebby
listed in the District of Columbia murder indictment and would be
used for that limited purpose. However, in both opening and
closing arguments, the statements were used to highlight the
murder victim's identity as a police officer. The trial court
erred in admitting the statements of Haire and appellant without
attempting to redact the portions identifying the murder victim
as a District of Columbia police officer.
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"Where the 'objectionable portion of the statement [could]
easily be separated from the remainder of the admission without
adverse effect,' it is error for the trial court not to do so,
and if the prejudice caused by admitting the evidence outweighs
its probative value, the error will be reversible." Ascher v.
Commonwealth, 12 Va. App. 1105, 1119, 408 S.E.2d 906, 915 (1991)
(quoting Pierce v. Commonwealth, 2 Va. App. 383, 391, 345 S.E.2d
1, 5 (1986)), cert. denied, 113 S. Ct. 190 (1992). "Error will
be presumed prejudicial unless it plainly appears that it could
not have affected the result." Bruce v. Commonwealth, 9 Va. App.
298, 301, 387 S.E.2d 279, 280 (1990) (quoting Joyner v.
Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558 (1951)). As
in Bruce, appellant received the maximum sentence of five years
in the penitentiary. Thus, we are unable to hold that the
admission of the murder victim's identity did not affect the
penalty.
SUFFICIENCY OF THE EVIDENCE
Appellant also argues that the trial court erred in finding
the demonstrative record of conviction adequate. "When
sufficiency of the evidence is at issue on appeal, the evidence
must be viewed in the light most favorable to the Commonwealth,
and the evidence must be accorded all reasonable inferences
deducible therefrom." Pugliese v. Commonwealth, 16 Va. App. 82,
92, 428 S.E.2d 16, 24 (1993) (citing Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).
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Viewed in the light most favorable to the Commonwealth, the
record in this case, including the possible use of appellant's
redacted statement, was sufficient to show a murder conviction.
We do not decide whether the evidence without the exchange
between Haire and appellant would be sufficient to show a prior
conviction because we do not know whether any portions of the
statements will be admitted at the new trial.
Accordingly, the decision of the trial court is reversed and
the case remanded for a new trial if the Commonwealth be so
advised.
Reversed and remanded.
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