COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Bumgardner∗
Argued at Salem, Virginia
GREGORY LEON YOUNG
OPINION BY
v. Record No. 1763-04-3 JUDGE ROBERT P. FRANK
FEBRUARY 7, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Seth I. Howard, Assistant Appellate Defender (Virginia Indigent
Defense Commission, on briefs), for appellant.
Denise C. Anderson, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
A jury convicted Gregory Leon Young, appellant, of armed robbery in violation of Code
§ 18.2-58 and sentenced him to life in prison. On appeal, appellant contends that the trial court
erred in allowing the Commonwealth to play portions of a videotaped confession to the jury
because it contained statements of other, unrelated crimes that were inadmissible and highly
prejudicial. For the reasons stated, we affirm appellant’s conviction, but vacate appellant’s life
sentence and remand to the trial court for re-sentencing.
BACKGROUND
On January 21, 2004, at 3:00 p.m., a man entered the Check ‘n Go check-cashing facility
in Danville, Virginia. Shanna Jones, an employee, was alone in the store, standing behind the
counter. The man approached Jones and placed a small note on the counter that read, “I have a
∗
Judge Bumgardner participated in the hearing and decision of this case prior to the
effective date of his retirement on December 31, 2005.
gun. Give me $2,100.00. You have ten seconds.” The man told Jones, “Just give me all your
money and you won’t be hurt.” He then pulled from his coat a large silver and black handgun.
The man pointed the gun at Jones, and she handed over all of the money in her cash drawer,
totaling $1,176. The man left the store. Jones pressed the panic button at her station to alert
police, who responded to the scene. A video camera in the store recorded the robbery.
On January 28, 2004, police officers arrested appellant in Henry County, Virginia, in
connection with a bank robbery that occurred that same day. During their interrogation of
appellant regarding that offense, appellant made statements regarding the robbery of the Check
‘n Go in Danville. After being questioned by Henry County detectives regarding the Danville
robbery, Danville detectives questioned appellant and took a written statement from him.
Appellant was subsequently charged with armed robbery and use of a firearm in commission of a
felony. These charges were tried separately, with the armed robbery tried by a jury.1
Before trial began, outside of the presence of the jury, the Commonwealth advised the
trial court that they would seek to admit a video recording of appellant’s confession to Henry
County and Danville detectives. The tape contained two different interviews, one conducted by
Henry County/Martinsville detectives, and one conducted by Danville detectives. The total
interview lasted approximately four hours and addressed not only the subject charges, but other,
unrelated crimes involving both robbery and drugs, including the Henry County bank robbery for
which appellant was initially arrested. Appellant made incriminating statements regarding the
present armed robbery during both interviews.
The Commonwealth acknowledged that in the tape “they discuss other things too . . .
other cases. And I guess what we need to do is try to sanitize it.” Appellant objected to the
1
The record reflects that, the morning of the trial, appellant chose to proceed pro se on
the charge of armed robbery, but had appointed counsel to represent him on the other charge.
The charge of use of a firearm in commission of a felony is not before us on appeal.
-2-
introduction of the video altogether, arguing that it would jeopardize his presumption of
innocence before the jury. The trial court allowed the video into evidence, but limited its use to
statements about the present offenses, ruling that evidence of any other crimes was not relevant
to the present charges. The trial court advised the Commonwealth that “statements unrelated to
these offenses need to be redacted from the tape before it is played to the jury.” The
Commonwealth agreed and informed the court that he would instruct the detectives to do so.
After a brief recess and before trial began, appellant renewed his objection to the
admission of the videotape and expressed his concern that the recording could not be sanitized in
order to exclude the statements of other crimes. The Commonwealth’s Attorney advised the
court that detectives were currently reviewing the video and that he would notify appellant as to
the outcome of that process before he sought to introduce the video. The trial court agreed and
proceeded with opening statements.
During his opening statement, appellant asserted that he was “tricked and forced” into
confessing the Check ‘n Go robbery to the detectives. Appellant stated that at the time of his
confession he was being “held and detained in Henry County on separate charges.” Appellant
also noted that a search of his house did not result in the recovery of any weapon or cash
associated with the armed robbery.
At trial, the victim identified appellant as the robber, who was depicted in the store video
recording of the crime. The Commonwealth introduced the fingerprint analysis from the note the
robber left on the counter, which matched appellant’s fingerprints. The Commonwealth also
entered appellant’s signed, written confession into evidence, which included a description of the
clothing appellant wore on the day of the robbery.
In his cross-examination of the laboratory technician who performed the fingerprint
analysis, appellant elicited testimony that his fingerprints had initially been taken for another
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criminal case. In his cross-examination of detectives who had interviewed him on the day of his
arrest, appellant suggested that he had been intoxicated at the time he made incriminating
statements, though these witnesses denied noticing any evidence of intoxication.
The Commonwealth represented that the tape had been “sanitized” and proceeded to play
portions of the tape for the trial court’s review. The tape had not been sanitized, but the
Commonwealth indicated that it would try to “start” and “stop” the tape at specific points in
order to allow the jury to view only the statements made regarding the present offense. The
Commonwealth and the trial court both noted that the videotape did not have a “counter” that
would facilitate this method of showing the tape.
During the “Martinsville” portion of the videotape played for the trial court’s review,
appellant made reference to other robberies and said that he had purchased drugs with the money
he recovered from the present robbery:
INTERVIEWER: Did you go there planning to rob that too, or
did you . . . did you have it spur of the
moment or was it planned?
APPELLANT: No . . . that one wasn’t spur of the moment.
INTERVIEWER: You drive the same car?
APPELLANT: Yeah.
* * * * * * *
INTERVIEWER: [W]hat did you do with that money . . .
eleven hundred dollars?
* * * * * * *
APPELLANT: And the rest, man, you know, bought me a
little bit of drugs, you know . . . little bit of
crack . . . little bit of heroin. . . .
Appellant objected to the statements regarding his purchase of drugs. The trial court
overruled appellant’s objections, finding that his use of the proceeds of the crime was admissible
-4-
evidence. The trial court determined that appellant had “opened the door” by asserting in his
opening statement that police had searched his home and had not found any proceeds of the
crime. The trial court ruled that the Commonwealth could play the “Martinsville” portion of the
tape to the jury.
In considering the “Danville” portion of the videotape, the trial court declined to review
the video, noting a concern about making the jury wait for the four hours it would take for such a
review. The Commonwealth’s Attorney represented that “I’m pretty sure that they didn’t go into
anything else” regarding other crimes, though he conceded that he could not be “a hundred
percent sure.” The trial court decided, “[w]ell, on the Danville tape, if there is any mention of
anything other than the Danville Check ‘n Go situation, I’m going to ask that the tape be
immediately stopped, and if necessary I will ask the jury to disregard what they just saw.”2
The Commonwealth resumed its case, calling the Henry County detective who had
interviewed appellant. During his testimony, the Commonwealth played the “Martinsville”
portion of the videotape to the jury, which included the statements noted above.
The Commonwealth then played the “Danville” portion of the videotape, which included
the following statements by appellant:
INTERVIEWER: What brings you all the way to Martinsville
and Henry County?
APPELLANT: Exactly what I got caught for today.
2
The trial court allowed appellant to review portions of the tape during a brief recess,
though it is not clear from the record whether appellant was to review the video for objectionable
statements or whether appellant was to review the video for portions that he may have elected to
introduce as evidence.
During the discussion of the videotape’s admissibility, appellant raised the possibility of
introducing portions of the tape to show that he was intoxicated during the interrogation. The
trial court ruled that appellant would be permitted to show portions of the tape. We note that the
court permitted appellant less than one hour to review a video that lasted four hours. In fact, the
trial court noted repeatedly that appellant should know exactly what was said on the tape, as “he
was there.”
-5-
* * * * * * *
INTERVIEWER: For drugs?
APPELLANT: Yeah.
Appellant objected, arguing that the statement was unduly prejudicial and would affect
the impartiality of the jury. Appellant further objected to the entry of the “Danville” portion of
the videotape altogether, as it was unnecessary to show his taped confession because he had
signed a written statement, which the Commonwealth had previously introduced into evidence.
The Commonwealth argued that it was necessary to show the tape because appellant had called
into question his sobriety at the time of the interrogation through his comments in his opening
statement and in his questions on cross-examination of the Commonwealth’s witnesses. The trial
court agreed, and overruled appellant’s objection. The trial court then took a brief recess to
allow the Commonwealth to further review the video to “see if there’s anything else on here that
would be objectionable.”3
When the trial resumed, the court instructed the jury to disregard the question and answer
regarding the reason appellant was arrested on the day of the interview. The Commonwealth
continued to play the videotape, which contained the following statement about the previous
Henry County robbery: “I got caught redhanded [sic] at this particular job. . . . ” Appellant
objected, and the trial court instructed the jury as follows:
Ladies and gentlemen of the jury, to the extent this tape we are
viewing contains any reference to anything which may have
occurred outside of Danville, specifically outside the incident
which is at issue in this Court today, the Check ‘n Go . . . the
alleged Check ‘n Go robbery, it is to be disregarded. It is not
relevant to these cases, and it is not to be considered by you as
evidence in these cases today.
3
The record does not disclose whether the Commonwealth did review the video at that
time.
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The Commonwealth resumed playing the videotape to the jury:
INTERVIEWER: One mistake don’t make you bad.
APPELLANT: That was no one mistake.
INTERVIEWER: There have been several.
APPELLANT: I’m pretty sure you are aware of them.
History . . . got a bad history.
* * * * * * *
APPELLANT: [T]he thing is now, you know, everybody is
thinking as far as you know, the authorities
here in Henry County, they’re thinking I’m a
serial robber, you know. . . . [T]his is my
first time doing a [sic] armed robbery. I had
a robbery charged back in the day, but there
was no weapon used . . .
The trial court stopped the tape and instructed the jury:
Ladies and gentlemen of the jury, to the extent that there’s any
reference to anything that’s not relevant to this proceeding today, it
is to be disregarded, as I instructed you earlier. I just heard
something on the tape that relates to apparently something about
the past, and that is to be disregarded. It is not evidence in this
case.
Appellant again objected to the continued playing of the tape to the jury, noting that the
jury had again heard an inflammatory remark. Appellant asked the trial court to exclude the tape
from evidence as it undermined his presumption of innocence. The Commonwealth argued that
the only purpose for showing the videotape was to demonstrate that appellant was coherent
during the interrogation, as appellant had “opened the door” through his opening statements and
cross-examination of the Commonwealth’s witnesses regarding his sobriety that day. The trial
court granted appellant’s continuing objection and refused to allow the tape to be played any
further, ruling however that the Commonwealth could offer the remainder of the tape in rebuttal
-7-
if appellant “put into issue [his] ability to have made the statement.” Appellant renewed his
objection to the videotape being played for any purpose.
Appellant also argued that damage had already been done to his presumption of
innocence by the evidence of other crimes already heard by the jury, but the trial court ruled that
it had “instructed the jury as best it can.” The trial court again instructed the jury to disregard
“any reference to any incidents that occurred other than those for which we are in Court on
today.”
Appellant presented no evidence. The jury found appellant guilty of armed robbery. At
sentencing, the Commonwealth introduced one burglary conviction from 1988, a burglary and a
grand larceny conviction from 1988, a burglary and a grand larceny conviction from 1991, a
robbery conviction from 1992, and armed robbery and grand larceny convictions from 1993.
After deliberating for twelve minutes, the jury recommended appellant serve life in prison.
This appeal follows.
ANALYSIS
On appeal, appellant contends the trial court erred in allowing the admission of videotape
evidence that contained statements of other crimes committed by appellant.4 In reviewing this
argument, we must consider whether: (1) the evidence of other crimes was admissible; (2) the
trial court erred in relying on cautionary instructions to remedy the admission of other crimes
evidence; and (3) if any error occurred, whether it was harmless.
Admissibility of Other Crimes Evidence
“The admissibility of evidence is within the broad discretion of the trial court, and a
ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v.
4
Appellant does not contend on appeal that the entire tape was inadmissible. Our review
is limited to appellant’s argument that the portions of the videotape that contain statements about
other crimes were inadmissible.
-8-
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However, “[b]y definition,
when the trial court makes an error of law, an abuse of discretion occurs.” Bass v.
Commonwealth, 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000).
Evidence that an accused has committed other crimes, “by showing that the accused has a
criminal propensity, tends to reverse his presumption of innocence of the crime on trial.” Lewis
v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983).
Generally, evidence that a defendant has committed crimes other
than the offense for which he is being tried is highly prejudicial
and inadmissible. Such evidence confuses the issues before the
jury and tends to prejudice the defendant in the minds of the jury
by showing his or her depravity and criminal propensity. This rule
is not without exception. Evidence of other crimes or convictions
may be admitted for the purpose of, among other things,
impeaching the credibility of a witness, including a criminal
defendant, attacking a defendant’s character on cross-examination,
or proving a relevant issue or element of the offense charged, such
as motive, intent, common scheme or plan, knowledge or identity.
Hackney v. Commonwealth, 28 Va. App. 288, 293, 504 S.E.2d 385, 388 (1998) (citations
omitted).
Citing Thornton v. Commonwealth, 31 Va. App. 825, 525 S.E.2d 646 (2000), and
Kirkpatrick v. Commonwealth, 211 Va. 269, 176 S.E.2d 802 (1970), the Commonwealth argues
that other crimes evidence is admissible because appellant’s statements regarding other crimes
were “so interwoven with his overall statement that they could not be completely redacted from
the videotape.” This argument is based on an incorrect statement of the law and is without merit.
Both Thornton and Kirkpatrick hold that evidence of other crimes can be admitted when the two
crimes are so intertwined as to not be easily separated without affecting the propriety of the
statement. Here, it is not the crimes that are intertwined, but the statements themselves. This
cannot serve as a basis to admit evidence of other crimes.
-9-
While the Commonwealth repeatedly acknowledged to the court below that evidence of
other crimes had no place in appellant’s trial, they argued that the videotape should be admitted
to show appellant’s demeanor during the interrogations.5 They contended below, as they do on
appeal, that appellant “opened the door” through his opening statement and his questioning of
the Commonwealth’s witnesses by suggesting that his statements were made while he was
intoxicated.6
Assuming, without deciding, that the portions of the videotape were admissible to show
appellant’s demeanor, this does not provide an adequate basis for allowing evidence of other
crimes to be admitted at trial. There were other permissible means by which the Commonwealth
could have shown appellant’s demeanor. Indeed, the trial court recognized that other crimes
evidence could not be admitted, ruling that such evidence was not relevant to the present
charges. We agree that the statements of appellant as to other crimes were inadmissible at trial.
Review of the Videotape and Use of Cautionary Instructions
It is within the discretion of the trial court to require the Commonwealth to redact a
videotape and to decide whether to review the videotape before it is presented to the jury.
“‘[T]he conduct of a trial is committed to the trial judge’s discretion, and absent evidence of an
5
The Commonwealth also suggests that the evidence regarding appellant’s purchase of
drugs using the proceeds from the robbery is admissible based on appellant’s opening statement.
Appellant did suggest in his opening statement that he was not guilty because no proceeds from
the robbery were found during the search of his home. However, appellant did not
cross-examine the Commonwealth’s witnesses about what was recovered in the search, nor did
he present this evidence during his case-in-chief. Thus, his remarks during his opening statement
were not enough to “open the door” to the evidence of his purchase of drugs. See Fields v.
Commonwealth, 2 Va. App. 300, 343 S.E.2d 379 (1986) (holding that, because opening
statements are not evidence, counsel cannot open the door to otherwise inadmissible evidence by
an assertion made in an opening statement).
6
To open the door to other crimes evidence, appellant must have “invited” the error
through his questioning of the witnesses. See Crest v. Commonwealth, 40 Va. App. 165, 174,
578 S.E.2d 88, 92 (2003). On cross-examination, appellant elicited testimony that he had been
arrested in Henry County on separate charges. However, this questioning did not “invite” into
evidence the specific crime with which he was charged or his involvement in other robberies.
Thus, there is no merit to the Commonwealth’s argument.
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abuse of this discretion, we will not disturb his rulings on that subject.’” Griffin v.
Commonwealth, 22 Va. App. 622, 625, 472 S.E.2d 285, 287 (1996) (quoting Justus v.
Commonwealth, 222 Va. 667, 676, 283 S.E.2d 905, 910 (1981)).
The trial court instructed the Commonwealth to redact any statements regarding other
crimes from the videotape before it was played to the jury. The Commonwealth failed to do so,
as was revealed to the trial court when the Commonwealth played the “Martinsville” portion of
the tape for the court. After reviewing the “Martinsville” portion of the videotape, the trial court
was on notice that the Commonwealth had not redacted the tape as instructed. The trial court
heard statements regarding other crimes on the “Martinsville” portion of the videotape, and, thus,
should have realized the danger that the jury would hear inadmissible evidence.
As a substitute for reviewing the entire videotape outside of the presence of the jury and
ensuring the integrity of the evidence presented at trial, the trial court decided to remedy the
introduction of any inadmissible statements through cautionary instructions. As a result, the jury
repeatedly heard evidence of other crimes, requiring the trial court to issue four separate
cautionary instructions.
Generally, a trial court may cure errors arising from inadmissible evidence being
improperly presented by promptly instructing the jury to disregard the inadmissible evidence.
LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983). “We will presume
that a jury has followed the trial court’s prompt and explicit curative instructions, unless the
record clearly shows that the jury disregarded the instructions.” Schmitt v. Commonwealth, 262
Va. 127, 147-48, 547 S.E.2d 186, 200 (2001).
However, there are instances in which cautionary instructions given by the trial court
regarding inadmissible evidence cannot be presumed to have been followed by the jury.
“[T]he admission of incompetent evidence is reversible error
notwithstanding the fact that the trial court, after its admission,
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instructed the jury to disregard it, if such illegal evidence was so
impressive that it probably remained on the minds of the jury and
influenced their verdict.” “If the prejudicial effect of the
impropriety cannot be removed by the instructions of the trial
court, the defendant is entitled to a new trial.”
Whether a manifest probability exists that the improper
evidence prejudiced the accused despite the cautionary instruction
depends upon the nature of the incompetent evidence when
considered in relation to the nature of the charges, the other
evidence in the case, and manner in which the prejudicial evidence
was presented.
Mills v. Commonwealth, 24 Va. App. 415, 420-21, 482 S.E.2d 860, 862-63 (1997) (citations
omitted).
In Mills, we reversed appellant’s convictions for various traffic offenses, resisting arrest,
and driving under the influence when the arresting officer testified before the jury to the presence
of drug needle marks on Mills’s arms. Id. The trial court’s prompt cautionary instructions to the
jury not to consider the officer’s comments were not enough to cure the prejudicial impact on the
accused’s presumption of innocence. We held that, “[a]lthough evidence of the defendant’s guilt
was overwhelming, we cannot say that the prejudicial evidence did not affect the length of the
sentences or the amount of fines that the jury recommended and the judge imposed.” Id. at 421,
482 S.E.2d at 863. Thus, we found that the error was not harmless.
In Powell v. Commonwealth, 13 Va. App. 17, 409 S.E.2d 622 (1991), we similarly held
that the admission of other crimes evidence was reversible error despite the cautionary
instruction given by the trial court. Powell was charged with various drug violations. Id. at 18,
409 S.E.2d at 623. The prosecutor questioned Powell on cross-examination regarding his prior
felony convictions. Id. at 19, 409 S.E.2d at 624. Powell testified falsely regarding the number of
prior convictions, and the prosecutor proceeded to question him about the specifics of those
convictions, which had involved drug distribution. Id. at 19-20, 409 S.E.2d at 624. The trial
court instructed the jury to limit its consideration of prior convictions to impeachment purposes
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only. Id. at 27, 409 S.E.2d at 628. We held that, despite Powell’s false testimony that allowed
for impeachment by the prosecutor, “[t]he risk of prejudice was so great because the evidence
portrayed [Powell] as a drug dealer” and its admission constituted reversible error that could not
be cured by a cautionary instruction. Id. at 27-28, 409 S.E.2d at 628-29.7
Here, the jury heard multiple statements regarding other crimes committed by appellant,
including several references to other robberies, the same crime for which appellant was on trial.
Henry County detectives questioned appellant about the Danville robbery using references to
other robberies, asking if he “used the same car” and if he planned to “rob that [one] too.” In
referring to the Henry County robbery, appellant said that he had been caught “redhanded [sic] at
that particular job.” Appellant also made reference to Henry County detectives having the
impression that he was a “serial robber.” Thus, the jury had evidence before it that appellant was
involved in a robbery in Danville. Each statement was accompanied by an admonishment by the
trial court that these statements were not evidence against appellant.
The repeated admission of inadmissible other crimes evidence had a cumulative effect on
the impartiality of the jury that could not be cured by cautionary instruction. See Maxey v.
Hubble, 238 Va. 607, 616, 385 S.E.2d 593, 597 (1989) (holding that where counsel persisted in
making objectionable remarks despite the trial court’s admonishments and instructions to the
jury to disregard those remarks, “an appellate court will presume that the prejudicial effect of the
improper conduct was too strong to be removed by further admonitions or jury instructions”).
7
Powell is not, as the dissent suggests, distinguishable from the instant case by virtue of
the nature of the cautionary instruction given by the trial court. In both Powell and the instant
case, the trial court allowed inadmissible evidence to be heard by the jury. The point relevant for
our analysis is that in Powell, as here, a cautionary instruction could not cure the trial court’s
error. It is inconsequential that the instruction in Powell limited the jury’s consideration of the
evidence to a specific purpose, where the instructions here barred any jury consideration. When
determining whether the instruction was adequate to cure the error, we look to the factors noted
in Mills above, none of which involve considering the scope of the instruction given.
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Under these circumstances, it is impossible to conclude that the jury did not consider these other
crimes in determining appellant’s guilt and the length of the sentence recommended. Instead,
this “evidence was so impressive that it probably remained on the minds of the jury and
influenced their verdict.” Mills, 24 Va. App. at 420, 482 S.E.2d at 862.8 We find that the trial
court abused its discretion by embarking on a procedural path that relied on cautionary
instructions to remedy the erroneous and deliberate admission of other crimes evidence. We
further find the cautionary instructions could not remedy this error.9
The only question remaining is whether these errors were harmless as to both the finding
of guilt and to the sentence recommended by the jury.
8
We do not, as the dissent suggests, cite to Mills or Maxey for the proposition that
appellant need not move for a mistrial to preserve this issue for appeal. Instead, we rely on those
cases for the proposition that, in some instances, a cautionary instruction cannot cure a
prejudicial error made by the trial court. The fact that appellants in Mills and Maxey moved for
a mistrial does not affect this Court’s decisions in those cases on the curative effect of the
cautionary instructions given by the trial court.
9
An alleged error is sufficiently preserved for consideration on appeal if “at the time the
ruling or order of the court is made or sought, [a party] makes known to the court the action
which he desires the court to take or his objections to the action of the court and his grounds
therefor.” Code § 8.01-384. The purpose of this rule is “to avoid unnecessary appeals, reversals
and mistrials by allowing the trial judge to intelligently consider an issue and, if necessary, to
take corrective action.” Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2
(1991).
Regarding a request for a mistrial, “[t]he recognized purpose of this requirement is to
prevent retrials by calling the error to the attention of the trial judge, who may then caution the
jury to disregard the inappropriate remarks.” Craddock v. Commonwealth, 16 Va. App. 402,
405, 429 S.E.2d 889, 891 (1993). The purpose of making contemporaneous objections is to
advise the court of whatever corrective action the requesting party wishes the court to take.
Campbell, 12 Va. App. at 480, 405 S.E.2d at 2.
In this case, appellant challenged the admissibility of the videotape. He objected on at
least five occasions. Clearly, the court was aware of his position regarding the evidence. We
find no precedent that requires a defendant to move for a mistrial when he timely presents his
objection to the trial court and the court subsequently makes a ruling unfavorable to the
defendant. We conclude that appellant’s failure to request a mistrial does not procedurally bar
this appeal.
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Harmless Error
When deciding whether non-constitutional error is harmless in the context of a criminal
proceeding, we must apply Code § 8.01-678 that states in pertinent part:
When 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, no judgment shall be arrested
or reversed . . . [f]or any . . . defect, imperfection, or omission in
the record, or for any error committed on the trial.
The Virginia Supreme Court stated in Clay v. Commonwealth, 262 Va. 253, 259, 546
S.E.2d 728, 731 (2001), that “[i]n a criminal case, it is implicit that, in order to determine
whether there has been ‘a fair trial on the merits’ and whether ‘substantial justice has been
reached,’ a reviewing court must decide whether the alleged error substantially influenced the
jury. If it did not, the error is harmless.” The Clay Court adopted the following test for
non-constitutional harmless error that was applied by the United States Supreme Court in
Kotteakos v. United States, 328 U.S. 750 (1946):
“If, when all is said and done, the conviction is sure that the error
did not influence the jury, or had but slight effect, the verdict and
the 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 conviction cannot stand.”
Clay, 262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos, 328 U.S. at 764-65).
We hold that the trial court’s errors were harmless as to the guilt of appellant.
Disregarding the videotaped statements, the evidence of appellant’s guilt was overwhelming.
Two detectives testified as to appellant’s oral confession to the robbery of the Danville Check ‘n
Go in two different interviews with police. In addition, the Commonwealth introduced
appellant’s written confession to the crime where appellant described the clothing he wore
during the robbery. The jury had the opportunity to view the video recording of the crime, where
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appellant fit the physical appearance of the robber, including the clothing appellant described.
Appellant’s fingerprints were recovered from the note the robber handed to Ms. Jones directing
her to give him the money. At trial, Ms. Jones positively identified appellant as the man who
robbed her, and testified to her prior identification of appellant in a photo array presented to her
by detectives shortly after the crime occurred. Given the weight of this evidence against
appellant, we find that substantial justice has been reached and the error in admitting evidence of
prior offenses in appellant’s guilt phase of the trial was harmless.
However, we do not find evidence of appellant’s involvement with drugs, or evidence of
the Henry County offense, to be harmless with respect to the sentence imposed. “[T]he
bifurcated procedure established in Code § 19.2-295.1 clearly manifests a legislative intent to
provide juries with information specific only to sentencing[.]” Gilliam v. Commonwealth, 21
Va. App. 519, 525, 465 S.E.2d 592, 595 (1996). “[T]he prior criminal convictions of a felon,
including previous efforts to punish and rehabilitate, ‘“bear upon a tendency to commit offenses,
the probabilities of rehabilitation, and similar factors”’ indispensable to the determination of an
appropriate sentence.” Id. at 524, 465 S.E.2d at 595 (citations omitted). “We cannot at once
reason that such considerations promote enlightened sentencing and dismiss as harmless the
prejudicial effects of inadmissible, although facially relevant, evidence pertaining to sentencing
issues.” Webb v. Commonwealth, 31 Va. App. 466, 471, 524 S.E.2d 164, 167 (2000).
During the guilt phase of trial, any reference to a prior robbery or to the “serial robber”
was harmless as evidence of appellant’s two prior robbery convictions was properly admitted
during the sentencing phase. However, allowing the jury to hear of appellant’s drug charge and
drug purchases, as well as his robbery offense in Henry County, during the guilt phase was not
harmless, as the jury did not hear this evidence during the penalty phase. Further, both of these
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prior acts refer to recent behavior, whereas appellant’s prior offenses occurred in the past, the
most recent conviction being in 1993.
Finally, the jury deliberated a mere twelve minutes before recommending appellant serve
a life sentence, the maximum penalty for armed robbery. We would usurp the role of the jury to
conclude that the sentence would have been the same had the jury not known about appellant’s
drug activity and his current arrest in Henry County. We therefore find that the admission of
these prior acts into evidence during the guilt phase of appellant’s trial was not harmless error
with respect to the sentence imposed.
CONCLUSION
After the Commonwealth and the trial court agreed that evidence of prior crimes was
inadmissible, the trial court nevertheless exposed the jury to inadmissible evidence. The court
then attempted to cure the error by giving cautionary instructions. We find the trial court erred
by employing this procedure. The error was harmless in determining appellant’s guilt, but we
find it substantially affected the sentencing recommendation made by the jury. Accordingly, we
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affirm appellant’s conviction for armed robbery, but reverse and remand to the trial court for
re-sentencing consistent with this opinion.10
Affirmed in part,
reversed in part,
and remanded.
10
Code § 19.2-295.1 states in relevant part:
If the sentence imposed pursuant to this section is subsequently set
aside or found invalid solely due to an error in the sentencing
proceeding, the court shall impanel a different jury to ascertain
punishment, unless the defendant, the attorney for the
Commonwealth and the court agree, in the manner provided in
§ 19.2-257, that the court shall fix punishment.
Here, we found that error occurred in the guilt phase of the trial. Although we
determined that the error was harmless to the guilt phase, the effects of the error spilled over into
the sentencing phase, thus tainting the sentencing process. Therefore, the error during the guilt
phase did affect the sentencing. We conclude there was error at sentencing.
In order for us to remand for re-sentencing only, we must find, pursuant to Code
§ 19.2-295.1, that the basis for reversal was “solely due to an error in the sentencing
proceeding.” “Solely” is defined as “entirely” or “exclusively.” The American Heritage
Dictionary 1229 (1982). Thus, if there was error in the guilt phase and in sentencing, we must
reverse and remand for a new trial. However, we have held here that the error at the guilt phase
was harmless, thus affirming the conviction. To remand for a new trial would be a futile act.
When interpreting statutory language, the “statute must be construed with reference to its
subject matter, the object sought to be attained, and the legislative purpose in enacting it; the
provisions should receive a construction that will render it harmonious with that purpose rather
than one which will defeat it.” Esteban v. Commonwealth, 266 Va. 605, 609, 587 S.E.2d 523,
526 (2003) (citing Stanley v. Tomlin, 143 Va. 187, 195, 129 S.E. 379, 382 (1925)) “Where a
particular construction of a statute will result in an absurdity, some other reasonable construction
which will not produce the absurdity will be found.” Miller v. Commonwealth, 180 Va. 36, 41,
21 S.E.2d 721, 723 (1942).
We conclude that the statutory language allows this Court to remand for re-sentencing
when the error in the guilt phase was harmless thereby creating no need for a new trial on the
merits. The only harm done was in sentencing.
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Humphreys, J., concurring, in part, dissenting, in part, and dissenting from the judgment.
I agree that evidence relating to three of the defendant’s “other crimes” was inadmissible
during Young’s criminal trial. However, because I believe that the cautionary instructions were
sufficient to cure any incidental prejudice that may have resulted from the inadvertent disclosure
of these “other crimes,” I would hold that the trial court did not abuse its discretion in allowing
the videotaped confession to be played to the jury. Accordingly, I would affirm both the
conviction and the defendant’s resulting life sentence.
Initially, I would hold that Young’s confession that he used the money from the Check
‘n’ Go robbery to purchase “a little bit of drugs . . . little bit of crack . . . [and a] little bit of
heroin” was both relevant and admissible, and, thus, I would hold that the trial court did not
abuse its discretion in determining that the probative value of this statement outweighed its
potential prejudical effect.
It is well established that, in a criminal prosecution, evidence that shows or tends to show
that the defendant is guilty of other crimes, even if of the same nature as those charged in the
indictment, is inadmissible for the purpose of showing that the accused was likely to commit the
crime charged in the indictment. See Scates v. Commonwealth, 262 Va. 757, 761, 533 S.E.2d
756, 758-59 (2001); Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 803, 805
(1970). “The purpose of this rule is to prevent confusion of offenses, unfair surprise to the
defendant and a suggestion of ‘criminal propensity,’ thus preserving the ‘presumption of
innocence.’” Crump v. Commonwealth, 13 Va. App. 286, 289, 411 S.E.2d 238, 240 (1991)
(quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)).
However, “[e]vidence of other crimes, which are ‘so intimately connected and blended
with facts proving the commission of the offense charged may be admissible because it cannot
be separated with propriety.’” Thornton v. Commonwealth, 31 Va. App. 825, 829, 525 S.E.2d
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646, 648 (2000) (quoting Sutphin v. Commonwealth, 1 Va. App. 241, 246, 337 S.E.2d 897, 899
(1985)). That is, “[w]here a course of criminal conduct is continuous and interwoven, consisting
of a series of related crimes, the perpetrator has no right to have the evidence ‘sanitized’ so as to
deny the jury knowledge of all but the immediate crime for which he is on trial.” Scott v.
Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984). Further, “[t]he fact-finder is
entitled to all of the relevant and connected facts, including those which followed the
commission of the crime on trial, as well as those which preceded it; even though they may show
the defendant guilty of other offenses.” Id.
I would hold that Young’s confession that he bought illegal drugs with the money he
stole from the Check ‘n’ Go is admissible because this “other crime” was “continuous and
interwoven” and “intimately connected” with the crime for which he was on trial. Also, Young’s
confession to purchasing drugs with the stolen money has probative value because it tends to
establish that Young did, in fact, commit the crime charged. Specifically, the fact that Young
used the proceeds of the robbery to purchase illegal drugs is probative because it tends to
establish that Young had a motive for committing the robbery. See, e.g., Sutphin, 1 Va. App. at
245, 337 S.E.2d at 899 (noting that “other crimes” evidence is admissible “to prove motive to
commit the crime charged”); see also Rose v. Commonwealth, 270 Va. 3, 10, 613 S.E.2d 454,
457 (2005) (noting that “other crimes” evidence is “‘permissible in cases where the motive . . . of
the accused is involved, or where the evidence is connected with or leads up to the offense for
which the accused is on trial’” (quoting Commonwealth v. Minor, 267 Va. 166, 172, 591 S.E.2d
61, 65 (2004))); Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998)
(“[E]vidence of other crimes is allowed when it tends to prove motive, intent, or knowledge of
the defendant.”).
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Moreover, although revealing the illegal drug transaction would have some incidental
prejudicial effect, I would further hold that the trial court did not abuse its discretion by
determining that the probative value of this statement outweighed its potential prejudicial effect.
See generally Rose, 270 Va. at 11, 613 S.E.2d at 458 (“Admission of evidence of other crimes
committed by a defendant . . . is subject to the further requirement that the legitimate probative
value of the evidence must exceed the incidental prejudice to the defendant.”). The mere fact
that this statement tends to show that Young purchased illegal drugs does not negate its
relevance as to the crime charged, nor, in my opinion, does it automatically render that evidence
unfairly prejudicial. Thus, I would hold that the trial court did not clearly abuse its discretion in
concluding that the probative value of the statement outweighed its potential prejudicial effect.
See Thornton, 31 Va. App. at 829, 525 S.E.2d at 647-48 (holding that the trial court did not err in
admitting the “defendant’s statement that he had sold the other drugs the night before” because
that statement “was intimately connected with and arose out of the same transaction for which
the defendant was on trial,” further noting that “[t]he probative value of [] evidence explaining
the defendant’s conduct and completing the story of the transaction ‘outweighed any incidental
prejudice to [the defendant]’” (quoting Newton v. Commonwealth, 29 Va. App. 433, 454, 512
S.E.2d 846, 856 (1999)) (second alteration in original)).
In sum, because the Commonwealth introduced evidence of the drug transaction as part
of a continuous course of events, rather than “for the prohibited purpose of showing a
predisposition on the part of the accused to commit crime,” Glover v. Commonwealth, 3
Va. App. 152, 161, 348 S.E.2d 434, 441 (1986), I would hold that this statement is both relevant
and admissible.
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I agree, however, with the majority’s conclusion that the remaining “other crimes”
evidence was inadmissible.11 I also agree with the general principle that, in some circumstances,
a cautionary instruction is insufficient to cure the prejudice that may have been caused by the
inadvertent disclosure of inadmissible, “other crimes” evidence. However, in those
circumstances, the defendant’s appropriate remedy is to move for a new trial. See Terry v.
Commonwealth, 5 Va. App. 167, 168-69, 360 S.E.2d 880, 880-81 (1987) (“[I]f the prejudicial
effect of the impropriety cannot be removed by the instructions of the trial court, the defendant is
entitled to a new trial.”); see also Maxey v. Hubble, 238 Va. 607, 385 S.E.2d 593 (1989); Mills
v. Commonwealth, 24 Va. App. 415, 482 S.E.2d 860 (1997). Young never moved for a mistrial
or for a new trial. Moreover, Young affirmatively requested, on at least one occasion, that the
trial court instruct the jury to disregard these statements. Because Young both consented to the
issuance of the cautionary instructions and neglected to move for a new trial, I would hold that
Young cannot now argue that the jury was so prejudiced by its exposure to the “other crimes”
evidence that his conviction should be reversed.12
11
The remaining statements consisted of: (1) the discussion during which the
investigator asked, “What brings you all the way to Martinsville and Henry County,” Young
responded, “Exactly what I got caught for today,” the detective then asked if Young was caught
because of “drugs,” and Young responded, “Yeah”; (2) Young’s statement that he “got caught
redhanded at this particular job”; and (3) the discussion during which Young stated that “the
authorities here in Henry County, they’re thinking I’m a serial robber, you know . . . this is my
first time doing a armed robbery. I had a robbery charged back in the day, but there was no
weapon used,” the investigator then asked whether it was “a common law robbery,” and Young
responded, “Common law . . . yeah, yeah.”
12
I also disagree with the majority’s characterization of the Commonwealth’s disclosure
of the “other crimes” evidence as “deliberate.” For example, the record is clear that, on at least
one of these three occasions, the Commonwealth—rather than the trial court or the defendant—
stopped the tape when the “other crimes” evidence was first mentioned. But even if the
Commonwealth deliberately paraded this evidence before the jury, the defendant’s appropriate
remedy would be to move for a mistrial or for sanctions against the Commonwealth.
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The majority concludes, however, that the trial court abused its discretion by “expos[ing]
the jury to inadmissible evidence” and then “attempt[ing] to cure the error by giving cautionary
instructions.” In effect, then, the majority holds that the trial court erred in failing, sua sponte, to
set aside the verdict and grant a new trial. Neither this Court nor the Virginia Supreme Court has
ever held that the trial court automatically abuses its discretion when the jury hears inadmissible
evidence, the trial court issues a requested cautionary instruction, but the trial court then fails to
grant a mistrial, sua sponte. Thus, I believe the majority’s approach represents an unwarranted
and unprecedented extension of existing Virginia law.13
As the majority recognizes, “[o]nce a jury is instructed regarding the use or limitations
placed upon specific evidence, they are presumed to follow such instructions.” Lewis v.
Commonwealth, 8 Va. App. 574, 580, 383 S.E.2d 736, 740 (1989). Thus, “[g]enerally, a trial
court may cure errors arising from improperly presented evidence by immediately instructing the
jury to disregard that evidence.” Terry, 5 Va. App. at 168-69, 360 S.E.2d at 880-81. Under the
13
I note that, of the three cases cited by the majority in support of its position, two
involved the reversal of the trial court’s denial of a new trial. See Maxey, 238 Va. at 616, 385
S.E.2d at 597 (holding that the defendant’s “motion for a new trial should have been granted”);
Mills, 24 Va. App. at 420, 482 S.E.2d at 862 (“The sole issue is whether the trial court erred by
refusing to grant a mistrial after the Commonwealth’s principal witness interjected incompetent
and inadmissible evidence into the trial during cross-examination.”). Both of those cases are,
therefore, readily distinguishable. In the third case, Powell v. Commonwealth, 13 Va. App. 17,
409 S.E.2d 622 (1991), this Court held that a cautionary instruction was insufficient to cure the
prejudice to the defendant where the trial court affirmatively and improperly allowed the
Commonwealth to use other crimes evidence to impeach the defendant during
cross-examination, and the court then “gave a cautionary instruction which told the jury that the
evidence of other offenses could only be considered for impeachment of the defendant and could
not be considered as evidence of guilt or in assessing punishment.” Id. at 27, 409 S.E.2d at 628.
In Powell, then, the trial court affirmatively admitted the “other crimes” evidence and then
instructed the jury that it should only consider that evidence for a limited purpose. Here, in
contrast, the trial court did not affirmatively admit the “other crimes” evidence, instead
informing the jury that it could not consider that evidence for any purpose. Accordingly, I
believe that Powell is also distinguishable and fails to support the majority’s position.
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circumstances of this case, the trial judge cautioned the jury to disregard the evidence relating to
these other incidents on at least four separate occasions. Because the jury is presumed to have
followed these cautionary instructions, in the absence of any motion for a mistrial, I would hold
that the trial judge’s numerous admonitions to the jury to disregard the other crimes evidence
were sufficient to cure any incidental prejudice that may have been caused by the inadvertent
disclosure of this information. See id.
For these reasons, I would affirm the judgment below. Accordingly, I respectfully
dissent.
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