Clarence Milton Thomas v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
CLARENCE MILTON THOMAS
MEMORANDUM OPINION * BY
v. Record No. 1883-99-4 JUDGE RICHARD S. BRAY
SEPTEMBER 5, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr., on briefs), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Clarence Milton Thomas (defendant) was convicted by a jury
for operating a motor vehicle after having been declared an
habitual offender, a second or subsequent offense, in violation
of Code § 46.2-357. On appeal, defendant complains that the
trial court erroneously (1) admitted evidence of his earlier
guilty plea to "drunk driving," an offense arising from conduct
related to the instant prosecution; (2) permitted testimony he
was "staggering" at the time of arrest and was "previously known
to law enforcement"; and (3) excluded from the sentencing phase
of the proceedings evidence of his "medical condition" and
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"mental state at the time of the offense." Finding no
reversible error, we affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. In accordance with well established
principles, we view the evidence in the light most favorable to
the Commonwealth.
At approximately 12:03 a.m. on November 13, 1998, Warrenton
Police Officer Warren Michael Sager, while operating an
"unmarked vehicle" on "routine patrol," stopped in the roadway
to permit his companion, Officer Steven Alleman, to issue a
parking ticket. Sager remained in the car and noticed a white
pickup truck approach, "pull[] to the right shoulder," and park
"approximately 5 to 6 car lengths behind." Within several
minutes, Sager heard "glass break as the [truck] door open[ed],"
and observed an individual exit the passenger side, and "walk[]
down the street" toward the police vehicle, "staggering very
bad[ly]." Alleman then identified defendant by name and Sager
testified he "recognize[d] [him] from . . . 18 years of law
enforcement" as a man he had "seen . . . and had dealings with
before."
While Alleman detained defendant, Sager approached the
truck and discovered "no one else in the vehicle," broken glass
"laying on the sidewalk," and a key in a "secondary ignition
switch." Following further investigation, Sager charged
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defendant with the instant offense and "driving under the
influence (DUI)." During the subject trial, Sager was permitted
to testify that defendant later pled guilty to the DUI.
At the sentencing phase of the prosecution, the
Commonwealth introduced into evidence a 1981 order of the
Fauquier County Circuit Court adjudicating defendant an habitual
offender. Additional circuit court orders, also in evidence,
memorialized subsequent convictions of defendant for "operating
a vehicle after having been declared an habitual offender" in
1983, 1984, 1985, 1988, 1991 and 1994, "statutory burglary" in
1969, felonious possession of a firearm in 1991, and, in 1998,
petit larceny and the DUI offense in issue.
During defendant's testimony at sentencing, his counsel
inquired into his "medical condition" at the time of the instant
offense. When the Commonwealth challenged the relevancy of such
evidence, counsel explained that defendant "had full-blown
AIDS," resulting in a "mental state . . . that he basically
didn't care, that he was under basically a suicide mission,"
circumstances counsel described as "mitigating factor[s]." The
court precluded the evidence but permitted counsel to proffer
the testimony for the record. 1
1
Counsel proffered that defendant was diagnosed with HIV in
1992, and thereafter resided with his mother until, fearful that
he would "spread [the] disease" to her, he "isolated himself
from his family," "moved . . . to Washington, D.C." and
"basically lived on the street." Following a conviction for
driving as an habitual offender in 1994, defendant "was placed
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I.
Defendant first contends that the court erroneously allowed
the Commonwealth to introduce "irrelevant" and "prejudicial"
evidence of his guilty plea to the DUI offense. In response to
defendant's objection at trial, the Commonwealth explained that
such evidence was relevant to prove defendant operated the
vehicle at the time of the subject offense, an indispensable
element of the crime. The trial court agreed and permitted the
testimony, but instructed the jury that such evidence "has to do
only with whether or not the Defendant was driving the vehicle
at the time of the offense before you today" and "should not
prejudice the Defendant because of the nature of the violation."
"Evidence is relevant if it has any logical tendency,
however slight, to establish a fact at issue in the case."
Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675,
678 (1993). "Upon finding that certain evidence is relevant,
the trial court is then required to employ a balancing test to
determine whether the prejudicial effect of the evidence sought
in the Crossroads Program" and "did well . . . because he found
a sense of community." Upon release, however, "he lost that
sense of community" and began "a suicide mission." "He began to
drink . . . [and] use illegal drugs" and, "on the day this
happened, . . . was in that suicide mode."
Counsel further proffered that, during incarceration for
the subject offense, defendant's "self-esteem" increased upon
learning that HIV cannot be transmitted through "casual
contact." Counsel added that "the stress of living in [jail]
causes some harm to [defendant] in the course of his disease and
can cause the disease to progress more rapidly."
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to be admitted is greater than its probative value." Wise v.
Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988).
"The admissibility of evidence is within the broad discretion of
the trial court, and a ruling will not be disturbed on appeal in
the absence of an abuse of discretion." Blain v. Commonwealth,
7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
"Virginia law . . . establishes that a plea of guilty" is
an admission of guilt "'by the defendant that he committed the
particular acts claimed to constitute the crime charged in the
indictment.'" Jones v. Commonwealth, 29 Va. App. 503, 510, 513
S.E.2d 431, 435 (1999) (quoting North Carolina v. Alford, 400
U.S. 25, 32 (1970)). "An out-of-court statement by [a]
defendant that admits . . . a fact or facts tending to prove
guilt is admissible in evidence." Elmore v. Commonwealth, 22
Va. App. 424, 429, 470 S.E.2d 588, 590 (1996). Thus,
defendant's acknowledgment that he operated the vehicle in the
commission of the DUI offense was admissible and clearly
relevant evidence that he simultaneously drove the truck in
violation of Code § 46.2-357.
Manifestly, the probative value of such evidence outweighed
any prejudicial effect. To successfully prosecute defendant for
a violation of Code § 46.2-357, the Commonwealth was required to
prove each element of the offense, including operation of the
vehicle by defendant. See Martin v. Commonwealth, 13 Va. App.
524, 529, 414 S.E.2d 401, 403 (1992) (en banc) (prosecution must
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prove every element of a crime beyond a reasonable doubt).
Without defendant's admission, only circumstantial evidence
addressed the driving component of the offense. Any incidental
prejudicial effect arising from reference to the DUI was
minimized by the court's cautionary instruction. "Juries are
presumed to follow prompt cautionary instructions regarding the
limitations placed upon evidence." Burley v. Commonwealth, 29
Va. App. 140, 147, 510 S.E.2d 265, 269 (1999).
II.
Defendant next complains that the court improperly
permitted Sager to testify that defendant was "staggering very
bad[ly]" and was previously known to Sager through "18 years of
law enforcement . . . dealings with [defendant] before,"
evidence that suggested defendant was a "danger on the roads"
and of "bad character." However,
[w]here a course of criminal conduct is
continuous and interwoven, consisting of a
series of related crimes, the perpetrator
has no right to have the evidence
"sanitized" so as to deny the jury knowledge
of all but the immediate crime for which he
is on trial. The fact-finder is entitled to
all of the relevant and connected facts,
including those which followed the
commission of the crime on trial, as well as
those which preceded it; even though they
may show the defendant guilty of other
offenses.
Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577
(1984). Accordingly, defendant cannot insulate himself from
evidence of the interrelated circumstances that attended the
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subject arrest and prosecution, notwithstanding prejudicial
implications.
III.
Code § 19.2-295.1 provides that "the defendant may
introduce relevant, admissible evidence related to punishment"
during the sentencing phase of a non-capital bifurcated trial.
In Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232,
236 (1999), the Supreme Court of Virginia instructed that "[t]he
kind of evidence contemplated by § 19.2-295.1 bears upon the
record of the defendant and the nature of his crime. Evidence
of a good previous record, and extenuating circumstances tending
to explain, but not excuse, the commission of the noncapital
crime is admissible mitigating evidence." The Court also noted
that "a trial court, in determining what evidence is relevant to
punishment under Code § 19.2-295.1 may be guided in the exercise
of its discretion, subject to the rules of evidence governing
admissibility, by the factors set forth in Code
§ 19.2-264.4(B)[.]" Id. at 44, 510 S.E.2d at 236.
Code § 19.2-264.4(B), in pertinent part, provides:
Evidence which may be admissible, subject to
the rules of evidence governing
admissibility, may include the circumstances
surrounding the offense, the history and
background of the defendant, and any other
facts in mitigation of the offense. Facts
in mitigation may include, but shall not be
limited to, the following: . . . (ii) the
. . . felony was committed while the
defendant was under the influence of extreme
mental or emotional disturbance, . . . (iv)
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at the time of the commission of the . . .
felony, the capacity of the defendant to
appreciate the criminality of his conduct or
to conform his conduct to the requirements
of law was significantly impaired . . . .
Defendant asserts the proffered evidence addressed "extenuating
circumstances" of "extreme mental and emotional disturbance" at
the time of the offense.
Assuming, without deciding, that the court erroneously
excluded such evidence, we find the resulting error harmless. 2
[N]onconstitutional error is presumed to be
harmful "unless 'it plainly appears from the
record and the evidence' that the verdict
was not affected by the error." "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 not occurred, the verdict would have
been the same."
Byrd v. Commonwealth, 30 Va. App. 371, 377, 517 S.E.2d 243, 246
(1999) (citation omitted).
Here, the record of convictions properly before the jury
established the commission of six prior felonies by defendant,
exclusive of the subject offense, for driving after being
declared an habitual offender, spanning a period of sixteen
years, together with convictions for several other crimes,
including two additional felonies. Five among the six habitual
2
Our premise of error does not include defendant's proffer
relating to the adverse effects of incarceration, a circumstance
irrelevant to the sentencing function of a jury. See Runyon v.
Commonwealth, 29 Va. App. 573, 577, 513 S.E.2d 872, 874 (1999)
(court did not err in excluding testimony concerning effect of
incarceration on defendant during sentencing).
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offender violations occurred prior to 1992, the year defendant
first learned of the illness that prompted his mental distress.
The related conviction orders, including those punishments fixed
by the juries, reflected prior sentences ranging from twelve
months in jail to three and one-half years in prison.
Such evidence clearly demonstrated that defendant persisted
in feloniously operating motor vehicles, notwithstanding
successive convictions and incarceration for such misconduct.
Defendant's suicidal mindset on the evening of the subject
offense offered an insubstantial explanation for his behavior,
on that occasion or previously. Under such circumstances, the
omission and the proffered evidence clearly had no effect on the
jury's determination of sentence and, therefore, if error, was
harmless.
Accordingly, we affirm the trial court.
Affirmed.
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