PRESENT: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ.,
and Carrico and Russell, S.JJ.
JAMES LESTER WALLER
OPINION BY
v. Record No. 081920 SENIOR JUSTICE HARRY L. CARRICO
November 5, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In a bench trial held in the Circuit Court of Pittsylvania
County, the defendant, James Lester Waller, was convicted of
the possession of a firearm after having been convicted of a
violent felony. Code § 18.2-308.2(A). In his appeal to the
Court of Appeals of Virginia, his conviction was affirmed.
Waller v. Commonwealth, 52 Va. App. 571, 665 S.E.2d 848 (2008).
We awarded him this appeal. Because his previous convictions
were not properly authenticated in the circuit court, we will
reverse the judgment of the Court of Appeals.
FACTUAL BACKGROUND
The defendant resided in a house in a rural section of
Pittsylvania County and a nephew, Shannon Martin, lived in a
trailer ten or twelve feet from the house. On August 5, 2006,
the defendant accused the nephew of stealing gas from him and
of selling drugs. The nephew stated that he was “going to get
[his] gun” and would be “coming back to kill [the defendant].”
The nephew “got in his car and left.”
The defendant knew the nephew had a gun, so he went “[i]n
the woods” behind his house to “get the guns . . . somebody put
. . . there for [him].” In thirty-five or forty-five minutes,
Marcus Jones, a deputy with the Pittsylvania Sheriff’s Office,
arrived in response to a report about “a threat” at the
defendant’s address. 1 At that point in time, the nephew had
not returned.
The deputy saw the defendant “crouched in front of a red
and white van” placing a shotgun under the vehicle, where a
rifle and a revolver were also found. In addition, the
defendant had “a silver colored revolver in his [left rear]
pocket.” Three of the four weapons were loaded, and the loaded
cylinder for the fourth one was in the defendant’s right front
pocket.
The deputy asked the defendant if “he was a felon,” and
the defendant said, “yes.” At trial, the defendant was again
asked if he was a convicted felon, and he confirmed that he
was. But when asked whether he had gone to prison for armed
robbery, the defendant said he did not “remember if it was for
armed robbery or not.”
Over the defendant’s objection, the circuit court admitted
into evidence six orders entered in January 1975 by the Circuit
1
The record does not disclose the identity of the person
who made the complaint to the Sheriff’s Office.
2
Court of Henry County, each convicting the defendant of armed
robbery with one order imposing upon the defendant a sentence
in the penitentiary of five years with three years suspended
and the other five orders imposing a sentence of five years,
all suspended. The first order bears the typewritten name of
the circuit court judge but his signature does not appear on
that order or any of the remaining five. Each order states the
date of the trial and shows the book and page number of the
circuit court’s order book in which it is entered. Each order
also bears a stamp reading:
“A COPY TESTE:
Vickie Helmstutler CLERK
BY T. K. Patterson D.C.” 2
The name of the clerk is apparently a stamped signature but the
signature of the deputy clerk appears to be genuine.
Quoting McMillan v. Commonwealth, 277 Va. 11, 671 S.E.2d
396 (2009), the defendant argues that “[w]hen the fact of a
prior conviction is an element of a charged offense, the burden
is on the Commonwealth to prove that prior conviction beyond a
reasonable doubt.” Id. at 24, 671 S.E.2d at 402. The
defendant also quotes Code § 17.1-123(A), which provides as
follows:
All orders that make up each day’s proceedings of every
circuit court shall be recorded by the clerk in a book
known as the order book. Orders that make up each day’s
2
“D.C.” obviously stands for “Deputy Clerk.”
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proceedings that have been recorded in the order book
shall be deemed authenticated when (i) the judge’s
signature is shown in the order, (ii) the judge’s
signature is shown in the order book, or (iii) an order is
recorded in the order book on the last day of each term
showing the signature of each judge presiding during the
term.
The defendant argues that the six orders relating to his
prior convictions were inadmissible into evidence because they
were not properly authenticated. Fatally lacking, the
defendant says, is a showing of the judge’s signature in the
orders, in the order book, or in an order recorded in the order
book on the last day of the term.
The Commonwealth, on the other hand, cites Code § 8.01-
389(A), which provides in pertinent part as follows:
The records of any judicial proceeding and any other
official records of any court of this Commonwealth shall
be received as prima facie evidence provided that such
records are authenticated and certified by the clerk of
the court where preserved to be a true record.
The Commonwealth states that “ ‘certification’ means ‘the
state of having been attested,’ while ‘attest’ means ‘[t]o bear
witness; testify,’ and ‘to authenticate by signing as a
witness.’ ” The Commonwealth then argues that the words
“certification” and “authentication” are synonymous and that
the clerk’s signature both certified and authenticated the
orders in question and they were thus admissible under Code
§ 8.01-389(A), “even though the copies teste did not bear any
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indicia that a judge had ever signed the order, or anywhere in
the order books.”
ANALYSIS
We disagree with the Commonwealth. In the first place, if
the Commonwealth is correct in its argument that
“certification” and “authentication” should be given the same
construction, the word “authentication” is “useless baggage and
serves no [useful] purpose.” Gallagher v. Commonwealth, 205
Va. 666, 669, 139 S.E.2d 37, 39 (1964). Also, “[s]uch a
construction would run counter to the principle that ‘every
provision in or part of a statute shall be given effect if
possible.’ ” Id. (quoting Tilton v. Commonwealth, 196 Va. 774,
784, 85 S.E.2d 368, 374 (1955)). The records of a judicial
proceeding may be received as prima facie evidence under Code
§ 8.01-389(A) provided they are authenticated by the clerk of
the court where they are preserved. And with respect to orders
of circuit courts, we must look to Code § 17.1-123(A) to
determine how such orders should be authenticated.
Furthermore, during oral argument, the Commonwealth
conceded that Code § 8.01-389(A), “standing alone,” is not
sufficient to make the orders in question admissible into
evidence, that to make the orders admissible it is necessary to
add the “presumption of official regularity.” This addition,
the Commonwealth states on brief, would give “a reasonable
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basis for inferring that the order book included a judge’s
signature or a signed term order in compliance with Code
§ 17.1-123(A)(ii) or (iii).”
We know, of course, from our examination of the six orders
contained in the record, that they were not signed by the judge
in conformity with Code § 17.1-123(A)(i), and the Commonwealth
concedes on brief that “the copies teste did not bear any
indicia that a judge had ever signed the order[s] or anywhere
in the order book[].” Yet the Commonwealth would have us infer
that the orders did bear indicia that the judge had signed the
order book in compliance with Code § 17.1-123(A)(ii) or (iii).
In short, what the Commonwealth invites us to infer is
something it concedes may not be correct. We decline the
invitation.
Finally, we take note of the Commonwealth’s assertion that
whether the six orders in question were admissible into
evidence “raises issues regarding the interaction between
Virginia Code § 8.01-389 (judicial records exception to the
hearsay rule) and Virginia Code § 17.1-123 (addressing
authentication of orders from circuit court order books).” It
is undoubtedly true that there is an interaction between the
two statutes, but the question remains: what is the result of
the interaction? If the Commonwealth is correct in its
construction of Code § 8.01-389(A), the result is a conflict
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between the two statutes, one permitting the admission into
evidence of the orders in question and the other denying
admission.
“ ‘It is a well-settled principle of law that where two
statutes are in apparent conflict they should be so construed,
if reasonably possible, so as to allow both to stand and to
give force and effect to each.’ ” Mahoney v. Commonwealth, 162
Va. 846, 853, 174 S.E. 817, 819 (1934) (quoting Kirkpatrick v.
Board of Supervisors of Arlington County, 146 Va. 113, 125, 136
S.E. 186, 190 (1926)). It is the object of the courts to
construe all statutes in pari materia “in such manner as to
reconcile, if possible, any discordant feature which may exist,
and make the body of the laws harmonious and just in their
operation.” Lucy v. County of Albemarle, 258 Va. 118, 129-130,
516 S.E.2d 480, 485 (1999)(quoting Tyson v. Scott, 116 Va. 243,
253, 81 S.E. 57, 61 (1914)).
The question then becomes whether the two statutes can be
reconciled in light of the foregoing principles and if so, in
what manner. In our opinion, the answer is plain and simple.
Under Code § 8.01-389(A), the records of all judicial
proceedings except orders of circuit courts shall be received
as prima facie evidence while circuit court orders shall be
received only when authenticated pursuant to Code § 17.1-
7
123(A). This solution allows both statutes to stand and gives
force and effect to both.
Because the six orders in question were admitted in error,
we must vacate the judgment convicting the defendant of
possessing a firearm after having been convicted of a violent
felony. The case does not end here, however. While the
evidence was insufficient to convict the defendant of
possessing a firearm after having been convicted of a violent
felony, it was sufficient to convict him of the lesser offense
of possessing a firearm after having been convicted of a non-
violent felony. Code § 18.2-308.2(A), under which the
defendant was indicted, covers both an offense committed by a
person previously convicted of a violent felony and an offense
committed by a person previously convicted of “any other
felony.”
The defendant confessed to Deputy Jones that he had been
previously convicted of a felony. While this confession would
have been ineffective without corroboration, Magruder v.
Commonwealth, 275 Va. 283, 307, 657 S.E.2d 113, 126 (2008), it
was corroborated by the judicial confession to the same effect
the defendant made while under oath on the witness stand, a
confession effective standing alone, without any corroboration.
See Watkins v. Commonwealth, 238 Va. 341, 348, 385 S.E.2d 50,
54 (1989) (corroboration requirement applies to “extra-judicial
8
admission or confession”); accord Roach v. Commonwealth, 251
Va. 324, 344, 468 S.E.2d 98, 110 (1996); Moore v. Commonwealth,
132 Va. 741,744-45, 111 S.E. 128, 129 (1922).
Accordingly, we will reverse the judgment of the Court of
Appeals and vacate the defendant’s conviction for possession of
a firearm after having been convicted of a violent felony. We
will remand the case to the Court of Appeals with direction to
remand the case to the circuit court for a new sentencing
hearing on the lesser offense of possessing a firearm after
having been convicted of a non-violent felony. This
disposition is consistent with Code § 19.2-285, which provides
in pertinent part as follows:
If a person indicted of a felony be by the jury acquitted
of part of the offense charged, he shall be sentenced for
such part as he is so convicted of, if the same be
substantially charged in the indictment, whether it be
felony or misdemeanor.
Reversed and remanded.
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