Washington v. Com.

PRESENT: All the Justices

PHILLIP MORRIS WASHINGTON
OPINION BY
v. Record No. 051875 JUSTICE G. STEVEN AGEE
September 15, 2006
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Phillip Morris Washington was convicted in the Circuit

Court of Stafford County of one count of malicious wounding

"after having been twice convicted of a violent felony" and one

count of "stabbing, cutting or wounding another person in the

commission of a felony." On appeal to the Court of Appeals,

Washington contended the trial court erred in allowing the

Commonwealth to present evidence of his two prior felony

convictions during the guilt phase of the trial. A panel of the

Court of Appeals reversed the judgment of the trial court, but

upon a rehearing en banc, the judgment of the trial court was

affirmed. For the reasons set forth below, we will affirm the

judgment of the Court of Appeals.

I. FACTS AND MATERIAL PROCEEDINGS BELOW

Washington was indicted for one count of malicious wounding

"after having been twice convicted of a violent felony" in

violation of Code § 18.2-51 and § 19.2-297.1, and one count of

violating Code § 18.2-53, for an attack on his girlfriend,

Kathleen A. Monroe, on January 13, 2001. Prior to trial, the

Commonwealth notified Washington that "should [he] be convicted

1
of a felony, the Commonwealth intends to introduce into evidence

at sentencing copies of the following convictions." The list

included separate felony convictions for robbery in 1970 and

1976.

During his opening statement before the jury, the

Commonwealth's Attorney noted that the indictment "charged not

just . . . a malicious wounding but a malicious wounding as a

recidivist." He asserted that "[t]he evidence in this case and

one of the elements of this offense is that the defendant has

twice been convicted of a violent felony in the past."

Washington objected on the grounds that "the recidivist

issue is an issue for sentencing" and that "it's highly

prejudicial . . . to mention it at this time." Washington also

alleged that the Commonwealth did "not have sufficient

documentation [of the 1976 robbery]" because one of the

documents purporting to be a conviction order was "not signed

. . . as an order by a judge." Washington made an oral motion

in limine to prevent the Commonwealth from introducing evidence

regarding Washington's prior felony acts of violence.

Agreeing that "there's no indication that [the purported

1976 conviction order] has been entered by the Court," the trial

court sustained Washington's motion in limine. Washington moved

for a mistrial, the Commonwealth did not object, and the trial

court granted the motion. The trial court did not determine at

2
which phase of a bifurcated proceeding prior convictions were to

be introduced into evidence.

In preparation for the second trial upon the same

indictments, Washington filed a written "Motion in Limine to

Prohibit Introduction of Defendant's Prior Conviction Record

Before Sentencing." After a hearing on the motion, the trial

court found that "the Commonwealth has the burden of proving two

prior convictions of felonious acts of violence, as charged in

the indictment against Mr. Washington" and that such findings

must "be made by the fact finders in this case, that is the

jury, and it is to be made during the guilt or innocence phase

of the proceeding."

In its case in chief, the Commonwealth introduced the

sentencing and conviction orders for the two robberies.1 At the

conclusion of the evidence, the Commonwealth offered a jury

instruction on the indicted offense which stated that the jury

must find the Commonwealth proved beyond a reasonable doubt the

elements of the crime of malicious wounding and "[t]hat the

defendant has been previously convicted of two violent

felonies." Washington objected to the Commonwealth's

instruction arguing that "even though the Commonwealth is

1
The prior defect with regard to the 1976 robbery was cured
by a properly certified conviction order. Washington did not
object to the certification but "preserve[d] [his] exception [to
the trial court's ruling on] the motion in limine."

3
permitted to introduce [Washington's prior convictions] before

sentencing . . . it is not actually an element of the offense,

and, therefore, does not belong in the instruction." Washington

offered another instruction which included only the elements of

malicious wounding as they appear in Code § 18.2-51.2 The trial

court overruled Washington's objection and instructed the jury

using the language of the Commonwealth's proposed instruction.

After a two-day trial, a jury convicted Washington as

charged and fixed his sentence at life imprisonment. The trial

court entered judgment affirming the verdict and imposing a

sentence consistent with the jury's determination.

The Court of Appeals granted Washington an appeal as to

whether the "trial court err[ed] in permitting the Commonwealth

to introduce evidence of two prior robbery convictions in its

case-in-chief."3 A majority of a three-judge panel of the Court

of Appeals reversed the trial court's judgment, finding that

nothing in Code § 18.2-51 "provides that the occurrence of

2
§ 18.2-51.
If any person maliciously shoot, stab, cut, or wound any
person or by any means cause him bodily injury, with the intent
to maim, disfigure, disable, or kill, he shall, except where it
is otherwise provided, be guilty of a Class 3 felony. If such
act be done unlawfully but not maliciously, with the intent
aforesaid, the offender shall be guilty of a Class 6 felony.
3
The Court of Appeals denied Washington's appeal as to
whether "the trial court erred in allowing the enhanced
sentencing option to be placed before the jury where the
elements of Code § 19.2-297.1 had not been met," finding that
this argument was not preserved in the trial court.

4
prior, separate acts of violence are elements of the offense of

malicious wounding." Washington v. Commonwealth, 44 Va. App.

157, 161, 604 S.E.2d 92, 94 (2004).

Upon rehearing en banc, a majority of the Court of Appeals

affirmed the judgment of the trial court. Washington v.

Commonwealth, 46 Va. App. 276, 285, 616 S.E.2d 774, 779 (2005).

Finding that Code § 19.2-297.1 did not specifically state

whether a defendant's prior convictions should be introduced in

the guilt or punishment phase of a trial, the en banc majority

noted that neither Code § 19.2-295.1, which allows for

bifurcated felony trials, nor Rule 3A:17.1(e)(1), allows "the

prosecution to present substantive evidence [necessary to meet

its] burden of proof under Code § 19.2-297.1(A)" during the

punishment phase. Id. at 283, 616 S.E.2d at 778. Thus, the

majority held "that the recidivism evidence necessary to

implicate the terms of Code § 19.2-297.1 may be admitted during

the guilt phase of a bifurcated jury trial." Id. at 285, 616

S.E.2d at 779.

The dissenting opinion rejected the majority's reading of

Code §§ 19.2-297.1 and 19.2-295.1. The dissent concluded that

"[r]ead together, Code § 19.2-297.1 and Code § 19.2-295.1

manifest the conclusion that the legislature intended that prior

convictions be proved only during the punishment phase when the

5
purpose is to establish a sentencing factor." Id. at 297, 616

S.E.2d at 785.4

We awarded Washington an appeal on the following

assignments of error: (1) Whether "the interaction between

§ 19.2-297.1 and § 19.2-295.1 . . . require[s] that the prior

convictions be admitted during the guilt phase of the trial;"

(2) Whether the Court of Appeals erred in refusing "to consider

the issue that the requirements of § 19.2-297.1 were not met at

trial where the trial court ruled that the jury would have to

impose a mandatory life sentence;" and (3) Whether the

"requirements of § 19.2-297.1 were required to be proven in the

trial court with the exception of the introduction of prior

violent convictions where the Court of Appeals ruled that the

statute's requirements had to be proven during the guilt phase

of the trial."5

4
A concurring opinion noted that "according to earlier
judicial interpretations of similar recidivist statutes, proof
of a defendant's prior like convictions is admissible during the
guilt phase of the trial because it is both a required predicate
for enhanced punishment and an element of the offense charged."
Id. at 290, 616 S.E.2d at 781. The concurrence also opined that
the requirements of Code § 19.2-297.1 were " 'facts,' " for
purposes of the United States Supreme Court decision in Apprendi
v. New Jersey, 530 U.S. 466, 491 (2000), which if proven, "may
'increase[] the penalty for a crime beyond the prescribed
statutory maximum.' " Id. at 293, 616 S.E.2d at 783.
5
Washington also assigned error to the holding of the Court
of Appeals that "the common law [applies] to the determination
of § 19.2-297.1 of the Code of Virginia." We agree with
Washington that introduction of prior convictions under Code
§ 19.2-297.1 is controlled by statute in this case and not the

6
 II. ANALYSIS

Statutory interpretation presents a pure question of law

and is accordingly subject to de novo review by this Court.

Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003).

Under basic principles of statutory construction, we must

determine the General Assembly's intent from the words contained

in a statute. Commonwealth v. Diaz, 266 Va. 260, 264-65, 585

S.E.2d 552, 554 (2003). This general rule applies except when

the language of the statute is ambiguous or would lead to an

absurd result. Tiller v. Commonwealth, 193 Va. 418, 420, 69

S.E.2d 441, 442 (1952); Cummings v. Fulghum, 261 Va. 73, 77, 540

S.E.2d 494, 496 (2001).

When a given controversy involves a number of related

statutes, our rules of statutory construction direct that those

statutes be read and construed together in order to give full

meaning, force, and effect to each. Ainslie, 265 Va. at 353, 577

S.E.2d at 249 (citation omitted). Moreover, appellate courts

read related statutes in pari materia in order to give, when

possible, consistent meaning to the language used by the General

common law. Because recidivist statutes were unknown at common
law, Code § 19.2-297.1 cannot be said to codify common law
principles. "Habitual criminal proceedings providing for
enhanced or additional punishment on proof of one or more prior
convictions are wholly statutory[,] . . . in derogation of the
common law . . . ." State v. Boles, 157 S.E.2d 554, 558 (W. Va.
1967).

7
Assembly. Industrial Dev. Auth. v. Board of Supervisors, 263 Va.

349, 353, 559 S.E.2d 621, 623 (2002).

With these basic principles in mind, we review Washington's

assignments of error.

A. CODE § 19.2-297.1 AND THE BIFURCATED TRIAL STATUTE

Washington asks us to determine, as a question of first

impression, the relationship between Code § 19.2-297.1 and

§ 19.2-295.1 in the context of when the evidence of prior

criminal convictions is to be introduced at trial. These

statutes were contained in the same bill enacted during the 1994

session of the General Assembly. See 1994 Acts ch. 828 (S.B.

115).

Code § 19.2-297.1, commonly denominated as the Three

Strikes Law, reads in pertinent part as follows:

A. Any person convicted of two or more separate acts
of violence when such offenses were not part of a
common act, transaction or scheme, and who has been at
liberty as defined in § 53.1-151 between each
conviction, shall, upon conviction of a third or
subsequent act of violence, be sentenced to life
imprisonment and shall not have all or any portion of
the sentence suspended, provided it is admitted, or
found by the jury or judge before whom he is tried,
that he has been previously convicted of two or more
such acts of violence. For the purposes of this
section, "act of violence" means (i) any one of the
following violations of Chapter 4 (§ 18.2-30 et seq.)
of Title 18.2:

. . . .

d. Any malicious felonious assault or malicious
bodily wounding under Article 4 (§ 18.2-51 et seq.);

8
 e. Robbery under § 18.2-58 and carjacking under
§ 18.2-58.1;

. . . .

B. . . . . The Commonwealth shall notify the defendant
in writing, at least thirty days prior to trial, of
its intention to seek punishment pursuant to this
section.

The relevant portions of Code § 19.2-295.1, the Bifurcated Trial

Statute, read as follows:

In cases of trial by jury, upon a finding that the
defendant is guilty of a felony . . . a separate
proceeding limited to the ascertainment of punishment
shall be held as soon as practicable before the same
jury. At such proceeding, the Commonwealth shall
present the defendant's prior criminal convictions by
certified, attested or exemplified copies of the
record of conviction, including adult convictions and
juvenile convictions and adjudications of
delinquency. . . . After the Commonwealth has
introduced such evidence of prior convictions, or if
no such evidence is introduced, the defendant may
introduce relevant, admissible evidence related to
punishment. Nothing in this section shall prevent the
Commonwealth or the defendant from introducing
relevant, admissible evidence in rebuttal.

At the outset, we note that Washington raises no

Constitutional issue in his appeal. See Medici v. Commonwealth,

260 Va. 223, 229, 532 S.E.2d 28, 32 (2000) (finding that the

introduction of a defendant's prior crimes during the guilt

phase did not violate his due process rights). Instead,

Washington contends that reconciliation of the two statutes

yields a rule that a recidivist defendant's prior convictions

for acts of violence for purposes of the Three Strikes Law may

9
be introduced only in the punishment phase of a bifurcated

proceeding. Washington contends the Three Strikes Law and the

Bifurcated Trial Statute must be so construed when read together

because the plain language of the Three Strikes Law places it

within the bifurcated trial paradigm. Upon de novo review of

both statutes, we find that the plain language of the statutes

refutes Washington's argument. Our earlier decisions construing

similar statutes support this conclusion.

The Three Strikes Law clearly states that before a

defendant may face enhanced punishment as a recidivist, the fact

finder must determine the fact of prior applicable convictions,

that the defendant was "at liberty" between the prior

convictions, and that the acts upon which prior convictions were

based were not part of "a common act, transaction or scheme."

Code § 19.2-297.1, however, does not specifically state whether

these substantive determinations must be made at the guilt or

punishment stage of a bifurcated trial.

Washington argues that the phrase "upon conviction" in Code

§ 19.2-297.1 places the recidivist determination in the

punishment phase of the trial. We disagree. The phrase "upon

conviction" appears in at least five other recidivist statutes.

See Code §§ 18.2-67.5:1, -67.5:2, -67.5:3, -248, and –270.

Neither this Court, nor the Court of Appeals, has found that

phrase to direct that the predicate prior convictions should be

10
introduced only in the punishment phase. See Medici, 260 Va. at

229, 532 S.E.2d at 32 (admission into evidence of a defendant's

prior rape convictions during the guilt/innocence phase of his

trial under Code § 18.2-67.5:3 did not violate the defendant's

due process rights); Calfee v. Commonwealth, 215 Va. 253, 254-

55, 208 S.E.2d 740, 741-42 (1974) (trial court did not err in

admitting prior conviction in guilt phase under a predecessor of

Code § 18.2-270); Berry v. Commonwealth, 22 Va. App. 209, 213,

468 S.E.2d 685, 687 (1996) (prior convictions admissible during

the guilt phase under Code § 18.2-248 because they are an

element of the charge set forth in the indictment).

Nothing in the plain language of either statute compels the

result argued by Washington. To the contrary, the Bifurcated

Trial Statute clearly restricts the evidence which may be

introduced by the Commonwealth at the punishment phase to "the

defendant's prior criminal convictions." There is no authority

in Code § 19.2-295.1 for the Commonwealth to present any other

evidence unless and until "the defendant may introduce relevant,

admissible evidence related to punishment." In Washington's

case, for example, the Commonwealth could not present any

additional evidence beyond the fact of the prior convictions in

the punishment phase, including the requirements under Code

§ 19.2-297.1 that the defendant was "at liberty" and that the

prior convictions were not a part of "a common act, transaction

11
or scheme" unless Washington chose to offer "relevant,

admissible evidence related to punishment." Code § 19.2-295.1.

Under Washington's reading of the statutes, no enhanced

punishment under Code § 19.2-297.1 could ever be adjudicated

unless the defendant chose to put on evidence under Code § 19.2-

295.1.

In Sheikh v. Buckingham Correctional Ctr., 264 Va. 558, 570

S.E.2d 785 (2002), we discussed the statutory limitation on the

character of evidence that may be introduced in the punishment

phase of a bifurcated trial under Code § 19.2-295.1. In Sheikh,

the appellant claimed his trial counsel was ineffective because

he "fail[ed] to introduce any evidence concerning [the

appellant's] character or the mitigating circumstances of the

crime, or to provide any argument supporting a lesser sentence

by the jury." Id. at 564, 570 S.E.2d at 788. We rejected the

appellant's argument, holding that counsel's decision not to

introduce evidence at the punishment proceeding was strategic.

Id. at 566, 570 S.E.2d at 789. "Under Code § 19.2-295.1 [and

Rule 3A:17.1(e)], counsel's decision not to present evidence

during the sentencing phase precluded the prosecutor from

introducing any evidence other than a record of Sheikh's prior

offenses." Id. (emphasis added). Thus, we implicitly rejected

the argument that the Bifurcated Trial Statute permitted the

12
introduction of any evidence by the Commonwealth, other than the

prior convictions themselves, except in rebuttal.

Washington's reading of Code § 19.2-297.1 to restrict the

prior convictions evidence to the trial's punishment phase does

not comport with the plain language of Code § 19.2-295.1. Under

well-settled principles of statutory construction, we may not

adopt an interpretation of one statute that conflicts with the

plain language of another. See Phipps v. Liddle, 267 Va. 344,

346-47, 593 S.E.2d 193, 195 (2004); Lake Monticello Owners'

Assoc. v. Lake, 250 Va. 565, 570, 463 S.E.2d 652, 655 (1995);

Albemarle County v. Marshall, 215 Va. 756, 761, 214 S.E.2d 146,

150 (1975).

Washington admits that in order to find that the

requirements of Code § 19.2-297.1 may be introduced only during

the punishment proceeding, those requirements must be read into

Code § 19.2-295.1. This we cannot do. Courts cannot "add

language to the statute the General Assembly has not seen fit to

include." Holsapple v. Commonwealth, 266 Va. 593, 599, 587

S.E.2d 561, 564-65 (2003). "[N]or are they permitted to

accomplish the same result by judicial interpretation." Burlile

v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001)

(internal quotation marks omitted).

Additionally, this Court has repeatedly held that the prior

convictions of a criminal defendant facing trial as a recidivist

13
may be introduced and proved at the guilt phase of the trial on

the principal offense. In Brown v. Commonwealth, 226 Va. 56,

58-59, 307 S.E.2d 239, 240 (1983), we determined that a trial

court did not violate a defendant's due process rights when it

admitted evidence of her prior offenses, noting that the statute

under which she was convicted "explicitly requires that [prior

convictions be] either admitted or proved . . . in order for the

enhanced punishment provisions to become applicable." See also

Griswold v. Commonwealth, 252 Va. 113, 116 & n.2, 472 S.E.2d

789, 790 & n.2 (1996) (stating that "the prior offense must be

charged and proven" (quoting Calfee, 215 Va. at 255, 208 S.E.2d

at 741)), overruled on other grounds by Alabama v. Shelton, 535

U.S. 654 (2002); Commonwealth v. Ellett, 174 Va. 403, 413,

4 S.E.2d 762, 766 (1939). Thus, according to our clear

precedent construing similar recidivist statutes, proof of a

defendant's prior predicate convictions is admissible during the

guilt phase of the trial. This reading comports with the plain

language of Code § 19.2-295.1 and gives full meaning, force and

effect to both statutes.

Washington advances two additional observations, neither of

which supports the conclusion for which he contends. He notes

that (1) the two statutes were passed by the same session of the

legislature; and (2) three strikes recidivism is purely a

punishment issue as that statute is contained in Chapter 18 of

14
Title 19.2, which deals only with matters related to punishment

and is titled "Sentence; Judgment; Execution of Sentence."

As for the first argument, while it is true that "two

statutes [which] are passed by the same session of the

legislature [presumably] were intended to stand together,"

Lillard v. Fairfax Airport Authority, 208 Va. 8, 13, 155 S.E.2d

338, 342 (1967), we have never held that the language of one

must be read into the other. Rather, the statutes should be

read "in pari materia [and] should be construed together,"

giving effect to both. Id. See also City of Richmond v. Board

of Supervisors, 199 Va. 679, 685-86, 101 S.E.2d 641, 646 (1958).

Further, the placement of the Three Strikes Law in Title

19.2 is not dispositive. See Brown, 226 Va. at 59, 307 S.E.2d

at 240 (upholding a trial court's decision to allow introduction

of prior offenses at trial on the principal offense even though

the statute establishing the principal offense and outlining the

use of prior offenses was listed in Title 19.2, rather than

18.2). See also HCA Health Servs. of Va., Inc. v. Levin, 260

Va. 215, 220-21, 530 S.E.2d 417, 420 (2000) (finding the trial

court erred in considering a statute's placement in the Code

when the language of the statute was clear and unambiguous).

The General Assembly has promulgated the statutes at issue

in this case which require that the Commonwealth prove, and a

fact finder determine, certain substantive facts before a

15
recidivist defendant may receive an enhanced sentence. See Code

§ 19.2-297.1. The legislature has also limited the evidence

that may be introduced in the punishment phase of a bifurcated

trial. See Code § 19.2-295.1. Thus, we find that the General

Assembly has provided that evidence of the defendant's prior

applicable convictions, and the related requirements such as

being "at liberty" may be presented at the guilt phase of a

bifurcated trial.

Contrary to Washington's contentions, we do not find this

legislatively established procedure to be exceptionally

prejudicial to the defendant. Prior to deliberations and

consistent with our case law, the jury was instructed that

"[e]vidence that [Washington] was previously convicted of prior

offenses should be considered . . . only for proof of the

element of a prior conviction and not as proof that he committed

the offense to which he is charged." We have held such an

instruction sufficient to vitiate any prejudice created by

introducing prior convictions in the trial of a subsequent

offense. See Calfee, 215 Va. at 255, 208 S.E.2d at 742.

B. REMAINING ASSIGNMENTS OF ERROR

Washington also assigns error to the trial court's failure

to consider whether all three substantive requirements of Code

§ 19.2-297.1 for enhanced punishment were sufficiently proven

during the guilt phase of the trial. This issue is raised for

16
the first time on appeal and thus, we cannot consider it. Rule

5:25. Washington objected to the Commonwealth's instruction

that the jury must find the Commonwealth proved his prior

convictions beyond a reasonable doubt and offered an instruction

that did not include proof of the prior convictions as a

requirement of the offense charged. However, once the trial

court adopted the Commonwealth's language on the elements of

malicious wounding, Washington did not move to include in the

instruction the other substantive findings required under the

Three Strikes Law that he was "at liberty" and that the prior

convictions were not part of "a common act, transaction or

scheme." Washington never argued to the trial court, or sought

to alert it in any other way, that the other requirements of

Code § 19.2-297.1 were not addressed. Because he did not object

to the instruction of the jury or make any other argument to the

trial court on the issue he now raises as to findings required

by Code § 19.2-297.1, we cannot consider Washington's assignment

of error on this issue. See City of Richmond v. Holt, 264 Va.

101, 108 n.*, 563 S.E.2d 690, 694 n.* (2002).6

III. CONCLUSION

6
Washington raises no claim under Apprendi v. New Jersey,
530 U.S. 466 (2000), that the enhancement requirements of Code
§ 19.2-297.1 were not proven according to the required standard
of proof beyond a reasonable doubt. Neither does he raise any
argument that proof at the guilt stage of a trial, instead of

17
 For the reasons stated above, we will affirm the judgment

of the Court of Appeals.

Affirmed.

the punishment phase, in any way implicates the Apprendi line of
cases.

18