COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia
ROMAN A. BYRD
OPINION BY
v. Record No. 0235-98-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 3, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Mandy M. Petrocelli, Assistant Public
Defender (M. Dale Phelps, Assistant Public
Defender; Office of the Public Defender, on
brief), for appellant.
Richard B. Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Roman A. Byrd (“appellant”) appeals his conviction of
possession of marijuana with intent to distribute and his
sentence to five years in the penitentiary. He contends the
trial court erred in admitting unredacted orders of conviction
during the sentencing phase of the jury trial. For the reasons
that follow, we affirm.
Police officers stopped appellant for driving with
defective equipment and searched his car incident to the stop.
Based on the results of the search, appellant was charged with
possession of marijuana with intent to distribute.
After the jury found appellant guilty as charged and during
the sentencing phase of the trial, the Commonwealth moved to
introduce two orders of conviction. The orders contained
references to charges that had been nolle prossed. Appellant’s
motion to redact reference to the nolle prossed charges was
denied. The denial of this motion is the basis for this appeal.
Relying on our decisions in Folson v. Commonwealth, 23 Va.
App. 521, 478 S.E.2d 316 (1996), and Gilliam v. Commonwealth, 21
Va. App. 519, 465 S.E.2d 592 (1996), the Commonwealth contends
that the term “record of conviction” as it is used in Code
§ 19.2-295.1 includes both convictions and nolle prossed
charges. We disagree.
Code § 19.2-295.1 establishes the procedure for bifurcating
felony trials by jury. “‘The purpose of the bifurcated trial is
to allow the trier of fact to consider the prior . . . record of
the accused for sentencing purposes while avoiding the risk of
prejudice to the accused when determining guilt or innocence.’”
Gilliam, 21 Va. App. at 523, 465 S.E.2d at 594 (quoting Farmer
v. Commonwealth, 10 Va. App. 175, 179, 390 S.E.2d 775, 776-77,
aff’d upon reh’g en banc, 12 Va. App. 337, 404 S.E.2d 371
(1991)).
The evidence the Commonwealth may present during the
sentencing phase is specified by statute:
At such proceeding, the Commonwealth shall
present the defendant’s prior criminal
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convictions by certified, attested or
exemplified copies of the record of
conviction . . . . The Commonwealth shall
provide to the defendant fourteen days prior
to trial notice of its intention to
introduce evidence of the defendant’s prior
criminal convictions. Such notice shall
include (i) the date of each prior
conviction, (ii) the name and jurisdiction
of the court where each prior conviction was
had, and (iii) each offense of which he was
convicted.
Code § 19.2-295.1 (emphasis added).
The language of the statute is clear and its intent plain.
Therefore, we need not reach beyond the common meaning of its
terms to invest it with meaning. As adopted by the legislature,
the statute limits the introduction of evidence by the
Commonwealth to charges for which a defendant has been
convicted. 1 We find no basis upon which to enlarge the
legislature’s manifest intent in adopting this statute. 2
1
Code § 19.2-295.1 also permits the Commonwealth to
introduce relevant, admissible evidence to rebut any evidence
introduced by the defendant on the issue of sentencing. The
admissibility of rebuttal evidence is generally restricted in
scope to refuting matters brought out by its proponent’s
adversary. See Henning v. Thomas, 235 Va. 181, 189-90, 366
S.E.2d 109, 114 (1988). See also Charles E. Friend, The Law of
Evidence in Virginia § 1-4(e) (4th ed. 1993) (“It is not proper
to introduce matter which is merely cumulative, or not
responsive to points raised in defendant’s case . . . .”). The
propriety of admitting rebuttal evidence relating to nolle
prossed charges is not before us, and we decline to address the
issue here.
2
We note that, in Commonwealth v. Shifflett, the Virginia
Supreme Court held that the factors a jury may consider in
mitigation of a capital offense under Code § 19.2-264.4(B) may
also be considered by the trial court “in determining what
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Furthermore, under well-settled rules governing the
admission of evidence, we find that evidence of charges which
have been nolle prossed is not relevant to the jury’s
determination of sentence. “‘Evidence is relevant if it has any
logical tendency, however slight, to establish a fact at issue
in the case.’” Utz v. Commonwealth, 28 Va. App. 411, 419, 505
S.E.2d 380, 384 (1998) (quoting Ragland v. Commonwealth, 16 Va.
App. 913, 918, 434 S.E.2d 675, 678 (1993)).
The purpose of the “separate [sentencing] proceeding”
required by Code § 19.2-295.1 is “limited to the ascertainment
of punishment.” Code § 19.2-295.1. We have further noted that
the purposes underlying the punishment of criminal conduct
evidence is relevant to punishment under Code § 19.2-295.1
. . . .” 257 Va. 34, 44, 510 S.E.2d 232, 236 (1999). However,
while the Commonwealth may introduce evidence of unadjudicated
criminal activity in capital cases, see Beaver v. Commonwealth,
232 Va. 521, 530, 352 S.E.2d 342, 347 (1987), the holding in
Shifflett does not stand for the proposition that charges that
have been nolle prossed are admissible in non-capital cases
prosecuted under Code § 19.2-295.1. Unlike the directive
provided by the express language of Code § 19.2-295.1 in
non-capital cases, the Commonwealth’s evidence is not confined
in capital cases to the “record of convictions.” See Peterson
v. Commonwealth, 225 Va. 289, 298, 302 S.E.2d 520, 526 (holding
that Code § 19.2-264.4 “does not restrict [penalty phase]
evidence to the record of convictions”), cert. denied, 464 U.S.
865 (1983). Furthermore, since the question before the Court in
Shifflett dealt only with the scope of admissible evidence
related to punishment that a defendant is permitted to
introduce, it did not address or construe the limitations
imposed by Code § 19.2-295.1 on the introduction of evidence
related to punishment in non-capital cases by the Commonwealth
in its case-in-chief. See Shifflett, 257 Va. at 42, 510 S.E.2d
at 235.
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include deterrence, incapacitation, rehabilitation, and
retribution. See Gilliam, 21 Va. App. at 524, 465 S.E.2d at
594. We can discern no relationship between the purposes of
sentencing and the jury’s role in determining appropriate
punishment in non-capital cases that would make evidence of
nolle prossed charges relevant to the jury’s task. Cf. Bassett
v. Commonwealth, 222 Va. 844, 858, 284 S.E.2d 844, 853 (1981)
(approving the admission, during the sentencing phase of capital
murder prosecutions, of evidence concerning the sentences
imposed for prior convictions because “[t]he sentence reflects
the gravity of the offense and the offender’s propensity for
violence.” (emphasis added)), cert. denied, 456 U.S. 938 (1982);
Gilliam, 21 Va. App. at 524, 465 S.E.2d at 594 (“Manifestly, the
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.” (emphasis added)).
Even were the evidence deemed relevant, it must be excluded
if its probative value is “outweighed by other, negative
factors.” Charles E. Friend, The Law of Evidence in Virginia
§ 11-3 (4th ed. 1993). Factors that weigh against the admission
of relevant evidence include: (1) the confusing nature of the
evidence and the likelihood that it will mislead the jury, see
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Farley v. Commonwealth, 20 Va. App. 495, 498, 458 S.E.2d 310,
312 (1995), and (2) the danger of distracting the jury from the
major issues in the case. See Maynard v. Commonwealth, 11 Va.
App. 437, 442, 399 S.E.2d 635, 638 (1990) (en banc). Here,
evidence of the nolle prossed charges could be misunderstood by
the jury and misapplied. No explanation of the meaning of the
term was given to the jury, nor could one have been given
without introducing collateral issues into the case, as numerous
reasons may underlie a prosecutor’s decision to enter a nolle
prosequi of a charge. In addition, because the court allowed
consideration of the charges, the evidence could also be
erroneously treated by the jury as proof that the accused was
involved in the perpetration of other crimes. We therefore
conclude the probative value of the challenged evidence was
outweighed by its prejudicial impact and, on this ground, the
court abused its discretion in admitting it. See Coe v.
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986);
Farley, 20 Va. App. at 498, 458 S.E.2d at 311.
Our decisions in Folson and Gilliam do not support the
Commonwealth’s contention that the challenged evidence was
properly admitted. In Folson, we held that an indictment,
showing the nature of the crime charged, and documents entitled
“DOCKET ENTRIES” and “commitment record,” showing the
defendant’s conviction and sentence for several prior offenses,
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were admissible as a “record of conviction” within the meaning
of Code § 19.2-295.1. See 23 Va. App. at 523-25, 478 S.E.2d at
317-18. In Gilliam, we held that the term “record of
conviction” includes “both conviction and punishment . . . .”
21 Va. App. at 524, 465 S.E.2d at 595. In each case, the issue
before us was limited to the evidence that is required to
establish the fact of conviction, both its incidence and its
nature, including the gravity of the offense. See Folson, 23
Va. App. at 525, 478 S.E.2d at 318 (approving of the admission
of documents as “records of conviction” because they
demonstrated “that the court convicted appellant for the crimes
charged”); Gilliam, 21 Va. App. at 523-24, 465 S.E.2d at 594-95
(approving of the admission of evidence concerning the sentences
that attended previous convictions). Neither holding addressed
the propriety of admitting evidence of nolle prossed charges.
Under accepted principles, however, we find that the
improper admission of the evidence at issue was harmless because
it plainly appears from the record that the error did not affect
appellant’s sentence. In the absence of a curative instruction
from the trial court, a nonconstitutional error is presumed to
be harmful “unless ‘it plainly appears from the record and the
evidence’ that the verdict was not affected by the error.” See
Lavinder v. Commonwealth, 12 Va. App. 1003, 1008-09, 407 S.E.2d
910, 913 (1991) (en banc) (quoting Code § 8.01-678). “An error
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does not affect a verdict if a reviewing court can conclude,
without usurping the jury’s fact finding function, that, had the
error not occurred, the verdict would have been the same.” Id.
at 1005, 407 S.E.2d at 911.
Like the seven prior convictions that were properly made
known to the jury, the three erroneously admitted nolle prossed
charges involved property offenses or offenses related to
property crimes. Assuming the jury treated the nolle prossed
charges as convictions, the inadmissible evidence was merely
cumulative of overwhelming evidence that appellant had been
convicted of numerous property offenses. Furthermore, although
the jury was free to impose a maximum sentence of ten years
imprisonment as punishment for the instant offense,
notwithstanding the evidence that appellant had committed seven
previous offenses, the jury only imposed a mid-range sentence of
five years. See Code §§ 18.2-10(e), 18.2-248.1(a)(2).
In short, given the nature of the erroneously admitted
charges, weighed in the context of admissible evidence of seven
previous convictions on charges of a similar nature, and, in
light of the sentence imposed, we conclude that the exclusion of
the evidence of appellant’s nolle prossed charges would not have
affected his sentence and that the improper admission of this
evidence was harmless error.
Affirmed.
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