Legal Research AI

Waller v. Com.

Court: Supreme Court of Virginia
Date filed: 2009-11-05
Citations: 685 S.E.2d 48
Copy Citations
7 Citing Cases

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.”

                                 3
     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




                                4
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


                                5
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


                                6
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.




                                9