Paul Woodrow Shifflett, Jr. v. Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
PAUL WOODROW SHIFFLETT, JR.
MEMORANDUM OPINION * BY
v. Record No. 2600-98-2 JUDGE SAM W. COLEMAN III
FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
C. James Summers (Summers & Anderson, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General; Jeffrey S.
Shapiro, Assistant Attorney General, on
brief), for appellee.
Paul Woodrow Shifflett, Jr. was convicted in a jury trial of
three counts of indecent exposure to a juvenile, three counts of
aggravated sexual battery, and attempted sodomy. Shifflett argues
that the trial court erred by denying his motion for a mistrial
after portions of his statement to the police were introduced at
trial in which he acknowledged "talking to somebody about [getting
counseling]" for "messing" with children and in which the officers
asked Shifflett if he had gone to jail for sexual abuse and
whether he had been sexually abused as a child. Because Shifflett
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
failed to redact the objectionable questions and responses when
previously given the opportunity to do so, we hold that the trial
court did not err by promptly instructing the jury to disregard
the evidence and refusing to declare a mistrial.
BACKGROUND
Shifflett provided child care for a neighbor's six-year-old
son. After several months of being cared for by Shifflett, the
child complained to his mother that Shifflett was sexually abusing
him. In the course of the investigation, Shifflett was
interviewed by law enforcement authorities regarding the
allegations. During the interview, Shifflett admitted that he
sexually abused the child on at least four occasions. Shifflett
was also questioned about other child sexual abuse charges or
convictions and about his having had counseling for child sexual
abuse:
MR. HOLMES: You ever been to counseling?
For, for sex, messing with kids?
MR. SHIFFLETT: Ah I don't remember if I
have or not.
MR. HOLMES: Okay. You went to jail for
that though, but did you get some help with
it?
MR. SHIFFLETT: I was talking to somebody
about it but they never did get back with
me.
MR. HOLMES: Okay. So you tried to get some
help for, for sexual abuse in the past,
right?
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MR. SHIFFLETT: Yeah.
MR. HOLMES: Okay.
OFFICER COX: Have you ever been abused
before? Were you sexually abused when you
were growing up?
MR. SHIFFLETT: Yes.
OFFICER COX: You were? By -- by a family
member or a friend, an acquaintance or what?
MR. SHIFFLETT: A family member.
Prior to trial, Shifflett filed a motion in limine seeking to
prohibit the Commonwealth from introducing those portions of his
interview with the police that mentioned his prior conviction for
indecent exposure or alluded to other incidents of sexual abuse.
The trial court granted Shifflett's motion and permitted Shifflett
to redact those portions of the interrogation which referenced his
prior conviction or other unrelated sexual offenses. Defense
counsel identified two pages to which he had specific objections
and requested that they be redacted. The Commonwealth identified
several additional pages that might be considered objectionable,
and those pages were redacted. Defense counsel did not identify
that portion of the interrogation recited above, in which the
officer alluded to other incidents of child sexual abuse,
referenced Shifflett's attempt to receive counseling for sexual
abuse, or inquired about Shifflett's history of sexual abuse, as
objectionable.
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However, at trial the tape recording of the interview was
played for the jury. When the foregoing portion was played for
the jury, defense counsel objected on the grounds that the
evidence of other sexual offenses and the references of going to
jail or receiving counseling were irrelevant and highly
prejudicial. Defense counsel explained that he had previously
identified the dialogue as objectionable but had inadvertently
failed to designate it for redaction. The trial court sustained
the objection, and after a brief discussion outside the presence
of the jury, the court overruled the motion for a mistrial and
promptly and expressly told the jury to disregard the
objectionable evidence and questions.
ANALYSIS
Shifflett argues that the trial court erred by denying his
motion for a mistrial because the introduction of the evidence
regarding other criminal conduct and the interviewers' reference
to Shifflett spending time in jail or receiving counseling for
other sexual offenses was highly prejudicial and denied him a
fair trial. Shifflett argues that the trial court's jury
instruction to disregard the objectionable evidence was
insufficient to mitigate the prejudice.
"Whether improper evidence is so prejudicial as to require
a mistrial is a question of fact to be resolved by the trial
court in each particular case." Beavers v. Commonwealth, 245
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Va. 268, 280, 427 S.E.2d 411, 420 (1993). "Thus, a trial
court's denial of a motion for a mistrial will not be reversed
on appeal unless there exists a manifest probability as a matter
of law that the improper evidence prejudiced the accused."
Mills v. Commonwealth, 24 Va. App. 415, 420, 482 S.E.2d 860, 862
(1997) (citations omitted).
"Generally, a trial court may cure errors arising from
improperly presented evidence by immediately instructing the
jury to disregard that evidence." Terry v. Commonwealth, 5 Va.
App. 167, 168-69, 360 S.E.2d 880, 880-81 (1987) (citing
LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657
(1983) (finding that juries are presumed to follow prompt,
explicit, and curative instructions)). The admission of
improper evidence is "not reversible error unless there is a
'manifest probability' that the improper evidence has been
prejudicial to the adverse party." Terry, 5 Va. App. at 169,
360 S.E.2d at 881 (quoting Coffey v. Commonwealth, 188 Va. 629,
636, 51 S.E.2d 215, 218 (1949)). The probability of prejudice
exists when the evidence is "so impressive that it probably
remained on the minds of the jury and influenced their verdict."
Coffey, 188 Va. at 636, 51 S.E.2d at 218. Therefore, "if the
prejudicial effect of the impropriety cannot be removed by the
instructions of the trial court, the defendant is entitled to a
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new trial." Lewis v. Commonwealth, 211 Va. 80, 83, 175 S.E.2d
236, 238 (1970).
Prior to trial, the court granted Shifflett's motion to
redact the portions of the interrogation and his statement that
referred to other unrelated bad acts or to prior criminal
behavior. The trial court granted leave to defense counsel to
redact any material that he deemed to be objectionable. On the
day of trial, the prosecutor tendered the redacted statement to
defense counsel, noting that she also had redacted portions of
the document in addition to those identified by Shifflett.
Defense counsel further reviewed the statement and did not
object to any portion of the document as redacted. The
Commonwealth introduced the statement into evidence and it was
read to the jury. After the objectionable portion was read to
the jury, defense counsel objected and informed the court that
he inadvertently failed to redact those additional objectionable
portions of the interview. Shifflett initially requested a
cautionary instruction. Following a brief conference with
counsel, the trial judge promptly and emphatically instructed
the jury to disregard the statements. Defense counsel
subsequently took the position that a cautionary instruction was
not adequate to erase the prejudicial effect of the highly
inflammatory evidence and moved for a mistrial. Defense counsel
conceded that he did not identify that portion of the
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interrogation as objectionable prior to its having been read to
the jury, even though he had been given the opportunity to do
so. The trial court denied the mistrial motion.
Although the Commonwealth, as the proponent of evidence,
has the burden of establishing its relevancy and admissibility,
see 1 John Henry Wigmore, Evidence §§ 14.1, 17 (Tillers rev.
1983), when inadmissible evidence is proffered, opposing counsel
has an obligation to make a timely and specific objection. See
Rule 5A:18. Rule 5A:18 provides in pertinent part that "[n]o
ruling of the trial court . . . will be considered as a basis
for reversal unless the objection was stated together with the
grounds therefor at the time of the ruling . . . ." Rule 5A:18.
"The primary function of Rule 5A:18 is to alert the trial judge
to possible error so that the judge may consider the issue
intelligently and take any corrective actions necessary to avoid
unnecessary appeals, reversals and mistrials." Martin v.
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)
(en banc).
Rule 5A:18, frequently referred to as the "contemporaneous
objection rule," bars appellate review of trial court rulings or
incidents of trial to which no objection was made or where the
objection was not timely. Rules of Court which procedurally bar
consideration of an issue on appeal are looked upon with
disfavor and should not be liberally applied to prevent
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consideration of the merits of an issue on appeal.
Nevertheless, where, as here, the defendant had advance notice
of the exact nature of the evidence and was given the
opportunity in limine to redact the evidence and prevent the
jury from considering it, we find that the objection was not
timely and that the trial court did not err by granting a
cautionary instruction and refusing to grant a mistrial.
Evidence that the accused committed other crimes or bad
acts is highly prejudicial and inadmissible, unless admitted
under one of several specific exceptions not present in this
case. See Rodriguez v. Commonwealth, 18 Va. App. 277, 280-81,
443 S.E.2d 419, 422 (1994) (en banc). Here, the trial court,
acknowledging that certain portions of the transcript of the
interrogation which referred to other crimes or bad acts was
highly prejudicial, granted Shifflett leave to redact any
portion of the transcript that he thought objectionable. Prior
to trial, the prosecutor tendered the redacted transcript and
tape to Shifflett. The transcript tendered by the Commonwealth
reflected that the two pages identified by Shifflett as
objectionable were redacted as well as several additional pages
identified by the Commonwealth. Shifflett did not object to the
transcript as redacted. Upon realizing that inadmissible,
prejudicial evidence was introduced, the trial court sustained
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Shifflett's objection and, in emphatic terms, gave the jury a
prompt instruction to disregard the evidence.
We accept for purposes of this opinion that the portion of
the transcript to which Shifflett ultimately objected was improper
and by its nature prejudicial; however, we find that under the
circumstances in which it was introduced, its publication to the
jury was not reversible error. We hold that, because Shifflett
was afforded the opportunity to redact any objectionable portion
of the transcript before trial but failed to avail himself of that
opportunity, albeit inadvertently, his objection was not timely
and he is precluded from asserting that a mistrial is the only
appropriate remedy. See generally Saunders v. Commonwealth, 211
Va. 399, 177 S.E.2d 637 (1970); Clark v. Commonwealth, 202 Va.
787, 120 S.E.2d 270 (1961); Godsey v. Tucker, 196 Va. 469, 84
S.E.2d 435 (1954); Hundley v. Commonwealth, 193 Va. 449, 69 S.E.2d
336 (1952). The trial court gave Shifflett every opportunity to
prevent the objectionable or prejudicial evidence from being
presented to the jury. Shifflett will not now be permitted to
challenge the admissibility of the evidence when he sat silently
and allowed the evidence to be presented to the jury, which he
considered highly prejudicial, after he was afforded every
opportunity to have the evidence excluded in the first instance
and never mentioned to the jury. Although a trial court is not
bound by an in limine ruling and may be required to rule
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differently depending upon whether the evidence is relevant or
material at trial, here Shifflett had the opportunity to object
and prevent the evidence from being mentioned to the jury. For
Shifflett to have made a timely objection to the admissibility of
this evidence, he should have objected when first given the
opportunity to have it redacted. By failing to object and have
redacted that which he deemed objectionable, defense counsel
permitted the interjection of the questionable evidence before the
jury at trial. He cannot now be heard to complain that the
prompt, explicit curative instruction given by the trial court was
inadequate and deprived him of a fair trial. We decline to
consider, in this instance, whether the curative instruction
removed the prejudicial effect of the impropriety. We, therefore,
hold that because Shifflett failed to make a timely specific
objection to the inclusion of the objectionable material when
afforded an opportunity to do so, he is precluded from challenging
the trial court's refusal to grant a mistrial and the court's
procedure for correcting the alleged prejudice resulting from the
inadvertent admission of the evidence.
We find that the trial court did not err by denying
Shifflett's motion for a mistrial. Accordingly, we affirm the
judgment of the trial court.
Affirmed.
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