COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Alston
Argued at Richmond, Virginia
FABIAN FERNANDO LAWRENCE
MEMORANDUM OPINION * BY
v. Record No. 1646-08-2 JUDGE LARRY G. ELDER
SEPTEMBER 29, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John Richard Alderman, Jr., Judge Designate
Timothy W. Barbrow (Law Office of Timothy W. Barbrow, on
brief), for appellant.
Richard B. Smith, Special Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.
Fabian Fernando Lawrence (appellant) appeals from his bench trial conviction for
possessing cocaine. On appeal, he contends the trial court erred in allowing the Commonwealth,
while cross-examining him, to elicit evidence about the nature of his prior conviction—which
was for robbery—rather than simply the fact that he had previously been convicted of one
felony. The Commonwealth concedes on appeal this was error but contends the error was
harmless. We hold the error was not harmless on the facts of this case. Thus, we reverse
appellant’s conviction and remand for a new trial if the Commonwealth be so advised.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
BACKGROUND
On the evening of February 2, 2006, Police Sergeant Reed stopped the van appellant was
driving for defective equipment, an inoperable brake light. Appellant was alone in the vehicle.
On the floor of the van, Sergeant Reed observed a “new and unused glass smoking device,”
which he knew was commonly used to smoke crack cocaine. He also observed two or three used
pieces of “brass Chore Boy,” a type of cleaning pad sold as a “pot scrubber,” that were “burnt
black with the [white ash] residue that’s consistent with the smoking of crack cocaine.” When
Sergeant Reed asked appellant about these items, he said “he had removed them from his house,”
that “they weren’t his; he was taking them to the trash” “because his wife had a drug problem”
and “he wanted to get rid of them.” Sergeant Reed subsequently “checked the area . . . better”
and “recovered nineteen to twenty pieces of the Chore Boy[s] that were used, that had fallen out
of a bag and scattered the[m]sel[ves] between the seat and up towards the front console of the
vehicle.” Subsequent laboratory analysis confirmed the residue was cocaine.
At some point after the stop of February 2, 2006, appellant “showed up at the police
department with his wife.” In April 2006, appellant was indicted for the instant offense. In May
2006, appellant appeared in court with his attorney, and trial was set for August 2, 2006.
Appellant failed to appear for trial on August 2, 2006, and at some point Sergeant Reed learned
he was incarcerated in Maryland and attempted to extradite him.
On January 4, 2008, Judge John W. Scott conducted a video arraignment of appellant,
who the prosecutor represented was “currently an inmate in the custody of the State of Maryland,
who’s filed under the IAD for speedy trial here in Virginia.”
A bench trial was held before Judge Scott on March 14, 2008, at which Sergeant Reed
testified about his traffic stop of appellant, what he saw in the van appellant was driving, and
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what appellant told him about the drug paraphernalia in the van. Reed said appellant told him
“that he had removed [the pieces of screen] from his house,” that “they weren’t his,” and that “he
was taking them to the trash.” Sergeant Reed gave no specific testimony at that time about
whether appellant indicated knowing what the Chore Boy screens were used for or admitted that
he knew they contained cocaine residue.
Appellant testified in his defense, indicating that he had removed the pieces of Chore Boy
that morning from the house he and his wife shared with their four children. He said he had
suspected she might be using drugs because she was not eating much, “would just be up all day,
all night,” was neglecting her household duties, and would sometimes lock their bedroom door
and refuse to let him inside the room immediately. The morning before the traffic stop, before
appellant left for work and while his wife was still sleeping, he searched her dresser drawer and
found the screens. He said he did not know what they were and “[did not] know . . . they
contained [drug residue],” but he suspected they had something to do with drug use. He then
said “Yes,” in response to the question whether he knew when he took the screens out of the
house that morning that they contained “cocaine residue,” but on further questioning he again
said he knew they contained drug residue but that “[he] didn’t know what drug[] was on [the
screens].” He added the screens to the trash bag he was already planning to take to the dump.
He said the dump had not yet opened that morning as he was on his way to work and that he
stopped after work to visit a friend and forgot he had them in the van. He said he was
“suspicious” about the screens and “confirmed it when [Sergeant] Reed pulled [him] over and
confirmed and told [him] what they were.” He denied knowing anything about the glass
smoking device, saying Sergeant Reed found it beneath the driver’s seat of the van, which was
the only vehicle the couple owned and was registered in his wife’s name.
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Appellant testified on direct examination that he had one prior felony conviction. On
cross-examination, the prosecutor inquired, “What is the nature of that felony?” His attorney
objected and said, “I don’t know that that’s proper cross-examination.” The prosecutor said,
“Number and nature for defendants, Judge.” The judge said, “It’s proper. Objection overruled.”
Appellant then testified that the felony for which he had been convicted was robbery.
Appellant’s wife testified that the Chore Boy screens were hers. She said she had had a
drug problem before she married appellant and that he knew of her history but that she had been
clean and sober for fifteen years. She testified that “[t]here came a time when [appellant] had
been incarcerated . . . due to a mistake in identity” and that, during that time, she was the sole
provider. She said they lost the family home and that she had a relapse and started smoking
crack cocaine. Appellant had been out of jail for approximately a week before February 2, 2006,
the date of his traffic stop. She said that when she arose the morning of appellant’s traffic stop,
she could tell he had been through her belongings and removed her drug paraphernalia, including
the Chore Boy screens. Appellant’s wife admitted she was incarcerated at the time she testified
and that she had approximately ten prior felony convictions and some misdemeanor convictions
involving theft.
The Commonwealth called Sergeant Reed in rebuttal and elicited additional testimony
concerning what Reed said to appellant in reference to the pieces of Chore Boy screens. Reed
testified that when he said, “I know what this is used for,” and asked “[W]hy is it in your
vehicle,” appellant responded “he had removed it from the house and was going to throw it away
because his wife had a drug problem.” Reed testified appellant did not say he did not know what
the items were. However, Reed also gave no testimony concerning whether appellant indicated
knowing what drug was on the screens.
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The trial court found appellant guilty of the charged offense, indicating it did so “after
considering all of the evidence in this matter, including . . . your testimony and . . . your wife’s.”
The trial court sentenced appellant to three years with all three years suspended on certain
conditions, including active supervised probation for an indefinite period.
II.
ANALYSIS
“A person convicted of a felony or perjury shall not be incompetent to testify, but the fact
of conviction may be shown in evidence to affect his credit.” Code § 19.2-269. Under settled
principles, “the Commonwealth may ask a defendant who testifies in a criminal proceeding the
number of times he has been convicted of a felony, but . . . not the names of the felonies, other
than perjury, and not the nature or details thereof.” Sadoski v. Commonwealth, 219 Va. 1069,
1071, 254 S.E.2d 100, 101 (1979) (emphasis added). Thus, here, as the Commonwealth
concedes, the trial court erred in allowing the prosecutor to inquire about the nature of
appellant’s prior conviction, which was for robbery.
Nevertheless, the Commonwealth, citing Cole v. Commonwealth, 16 Va. App. 113, 116,
428 S.E.2d 303, 305 (1993), contends the error was harmless because “‘the record is devoid of
. . . implications’” “‘that the judge considered [the] inadmissible evidence in adjudicating the
merits of the case’” and, thus, we “‘must presume [on appeal] that the trial judge considered the
evidence for the limited purpose of assessing credibility.’” We hold this case is readily
distinguishable from Cole, and we are unable to conclude the error here was harmless.
In Virginia, non-constitutional error is harmless “[w]hen it plainly appears from the
record and the evidence given at the trial that the parties have had a fair trial on the merits and
substantial justice has been reached.” Code § 8.01-678.
“If, when all is said and done, [it is clear] that the error did not
influence the [fact finder], or had but slight effect, . . . the
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judgment should stand . . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected. . . . If so, or if one is left in
grave doubt, the [judgment] cannot stand.”
Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.
United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557, 1566 (1946)); see
also Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc)
(discussing harmless error analysis prior to Supreme Court’s adoption of Kotteakos test in Clay).
“‘[H]armless error analysis . . . [is not] simply a sufficiency of the evidence analysis.’” 1
Williams v. Commonwealth, 32 Va. App. 395, 400, 528 S.E.2d 166, 169 (2000) (en banc)
(quoting Hooker v. Commonwealth, 14 Va. App. 454, 457-58, 418 S.E.2d 343, 345 (1992)). We
may uphold a decision on the ground that any error involved is harmless only if we can conclude,
without usurping the trial court’s fact-finding function, “‘that the error did not influence the [fact
finder], or had but slight effect.’” Clay, 262 Va. at 260, 546 S.E.2d at 731 (quoting Kotteakos,
328 U.S. at 764, 66 S. Ct. at 1248, 90 L. Ed. at 1566); see Lavinder, 12 Va. App. at 1006, 407
S.E.2d at 911 (noting a court may not declare an error harmless if doing so requires “usurping
the [fact finder’s] function”).
It is well settled under this test that the erroneous admission of evidence may be harmless
if evidence of guilt is so “overwhelming” and the error so insignificant by comparison that we
can conclude the error “failed to have any ‘substantial influence’ on the verdict.” United States
v. Lane, 474 U.S. 438, 450, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814, 826 (1986) (quoting
Kotteakos, 328 U.S. at 765, 66 S. Ct. at 1248, 90 L. Ed. at 1567); see also Rose v.
1
We note the sufficiency of the evidence to support appellant’s conviction is not before
us in this appeal. Appellant’s assignment of error challenging the sufficiency was denied at the
petition stage.
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Commonwealth, 270 Va. 3, 12, 613 S.E.2d 454, 459 (2005). The erroneous admission of
evidence also is harmless if the evidence admitted in error is merely “cumulative” of other,
undisputed evidence. Brecht v. Abrahamson, 507 U.S. 619, 639, 113 S. Ct. 1710, 1722, 123
L. Ed. 2d 353, 373-74 (1993).
As we noted in Cole, “‘[a] judge, unlike a juror, is uniquely suited by training, experience
and judicial discipline to disregard potentially prejudicial comments and to separate, during the
mental process of adjudication, the admissible from the inadmissible, even though he has heard
both.’” Cole, 16 Va. App. at 116, 428 S.E.2d at 305 (quoting Eckhart v. Commonwealth, 222
Va. 213, 216, 279 S.E.2d 155, 157 (1981)). “Consequently, we presume that a trial judge
disregards prejudicial or inadmissible evidence . . . ‘in the absence of clear evidence to the
contrary’” in the record. Id. (quoting Hall v. Commonwealth, 14 Va. App. 898, 902, 421 S.E.2d
455, 462 (1992) (en banc)). However, even in a bench trial, “when the trial judge erroneously
and unconditionally admits prejudicial evidence, we cannot presume that the trial judge
disregarded the evidence he ruled to have probative value.” Wilson v. Commonwealth, 16
Va. App. 213, 223, 429 S.E.2d 229, 235 (emphasis added), aff’d on reh’g en banc, 17 Va. App.
248, 436 S.E.2d 193 (1993); see Pierce v. Commonwealth, 50 Va. App. 609, 617 n.4, 652 S.E.2d
785, 790 n.4 (2007) (quoting Wilson, 16 Va. App. at 223, 652 S.E.2d at 235). Instead, we must
presume, unless that presumption is rebutted, “that by admitting inadmissible evidence, the trial
judge implicitly considered that evidence for an improper purpose.” Pierce, 50 Va. App. at 617
n.4, 652 S.E.2d at 790 n.4.
In Pierce, we held that the presumption is rebutted when “a judge clearly articulates the
reasons for his decision, and the improper evidence is not among those reasons,” making “clear
that the improper evidence did not impact the verdict.” Id. In Pierce, the trial judge stated “it
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was the testimony of another witness that convinced him that [the defendant, who did not
testify,] was guilty of possession with intent to distribute.” Id. at 618, 652 S.E.2d at 790.
Here, by contrast, the trial court expressly stated it considered the testimony of appellant
in convicting him. If the trial court had believed appellant’s testimony that he possessed the
pieces of Chore Boy screens only for the purpose of disposing of them and with only an
unconfirmed suspicion about the nature of the residue on the screens, it could have found him
not guilty of the charged offense of possessing cocaine. See, e.g., Young v. Commonwealth, 275
Va. 587, 591-92, 659 S.E.2d 308, 310-11 (2008) (refining the requirement that a conviction for
possessing a controlled substance requires proof, inter alia, that “‘the defendant intentionally and
consciously possessed [the drug] with knowledge of its nature and character’” (quoting Burton
v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 759 (1975)) (emphasis added in Young)).
On this record, therefore, it is impossible to determine that the trial court’s erroneous admission
of evidence of the nature of appellant’s prior conviction for robbery was limited to credibility
and was harmless. Robbery, in addition to being a felony, is a crime of moral turpitude. It is
also the sort of crime often associated with drug addicts, who require funds to support their
habits. Thus, the admission of evidence of the nature of appellant’s conviction had the potential
for creating prejudice far beyond that resulting from the fact that the trial court knew as a result
of the prior video arraignment that appellant was then incarcerated in another jurisdiction for an
unknown offense. Because the trial court admitted the evidence of the nature of appellant’s
robbery conviction without limitation, we cannot conclude, without usurping the trial court’s fact
finding function, that the erroneous admission of this evidence was harmless.
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III.
For these reasons, we hold the trial court’s erroneous admission of evidence of the nature
of appellant’s prior conviction, for robbery, was not harmless. Thus, we reverse appellant’s
conviction and remand for a new trial if the Commonwealth be so advised.
Reversed and remanded.
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