COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
Willis, Elder, Bray, Bumgardner and
Senior Judge Baker *
Argued at Richmond, Virginia
CHARLIE HACKNEY
OPINION BY
v. Record No. 2165-96-3 JUDGE SAM W. COLEMAN III
SEPTEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
David L. Epling for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Charlie Hackney was convicted in a jury trial of grand
larceny and possession of a firearm by a convicted felon. He
appealed the grand larceny conviction on the ground that the
trial court erred by refusing to sever the charge of possession
of a firearm by a felon from the grand larceny charge, as
required by Rule 3A:10(c) and our holdings in Johnson v.
Commonwealth, 20 Va. App. 49, 56, 455 S.E.2d 261, 265 (1995), and
Long v. Commonwealth, 20 Va. App. 223, 226-27, 456 S.E.2d 138,
139 (1995). A majority of a panel of this Court, utilizing a
harmless error analysis as dictated by Kirk v. Commonwealth, 21
*
Judge Baker participated in the hearing and decision of
this case prior to the effective date of his retirement on July
31, 1998 and thereafter by his designation as senior judge
pursuant to Code § 17-116.01.
Va. App. 291, 464 S.E.2d 162 (1995), upheld the grand larceny and
firearm convictions, holding that the defendant's election to
testify rendered the prior conviction evidence admissible in the
grand larceny prosecution and, thereby, rendered harmless the
trial court's error in refusing to sever the charges. See
Hackney v. Commonwealth, 26 Va. App. 159, 493 S.E.2d 679 (1997).
We granted Hackney a rehearing en banc. See Code
§ 17-116.02(D). Upon rehearing, we hold that, as a matter of
policy, we will no longer apply a harmless error analysis to a
trial court's clear error in refusing to sever a charge of
possession of a firearm by a convicted felon from a related
charge or charges as required by Rule 3A:10(c) and our holdings
in Johnson and Long. Accordingly, we reverse the grand larceny
conviction and remand that charge to the trial court for a new
trial.
BACKGROUND
A grand jury indicted Hackney for grand larceny and
possession of a firearm by a convicted felon. Prior to trial,
Hackney filed a motion to sever the charge of possession of a
firearm by a convicted felon from the other charge, alleging that
proof that he had been previously convicted for larceny and
burglary was irrelevant and highly prejudicial to the pending
larceny charge. The trial judge and defense counsel had the
following discussion:
THE COURT: [T]he Commonwealth is going to
ask [the] question, "Have you ever been
convicted of a felony or a misdemeanor
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involving lying, cheating and stealing?"
They're going to ask that . . . question at
some point during the trial as well.
DEFENSE COUNSEL: If he takes the stand.
THE COURT: If he takes the stand.
DEFENSE COUNSEL: If he takes the stand.
THE COURT: And the Court certainly can't
rule that out, and under the circumstances,
where possession of these weapons is a part
of the Commonwealth's case, certainly in the
larceny charge and showing the subsequent
possession, I think the Court would have to
overrule Counsel's motion here.
During its case-in-chief, the Commonwealth introduced orders
of conviction for three grand larceny and burglary offenses
committed by Hackney in order to prove a required element of the
firearm charge, namely, that Hackney was a convicted felon.
Hackney testified in his defense to the larceny and firearm
charges. On cross-examination, the prosecution elicited for
impeachment purposes, testimony from him that he had been
previously convicted of three felonies. 1 The jury found Hackney
1
For the purpose of impeaching a witness' credibility, the
Commonwealth may prove that the witness, including a defendant
who testifies, has previously been convicted of a felony,
perjury, or a misdemeanor of moral turpitude, and may elicit the
number of convictions. See Code § 19.2-269; Sadoski v.
Commonwealth, 219 Va. 1069, 1070-71, 254 S.E.2d 100, 101 (1979).
The Commonwealth may not impeach a witness/defendant by proving
the nature or details of a prior conviction, other than perjury.
Id. Where a witness/defendant denies the fact of conviction,
the Commonwealth may be permitted to further impeach the
defendant by proving the nature and number of prior convictions
to the extent necessary to prove that the accused testified
falsely concerning the prior convictions. See Powell v.
Commonwealth, 13 Va. App. 17, 21, 409 S.E.2d 622, 626-27 (1991).
In the present case, assuming that Hackney acknowledged the
number of his prior felony convictions, as he did, the
Commonwealth would not have been entitled to introduce the orders
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guilty of grand larceny and possession of a firearm by a
convicted felon.
ANALYSIS
Rule 3A:10(c) provides that when an accused is charged with
multiple offenses, "[t]he court may direct that [the] accused be
tried at one time for all offenses then pending against him, if
justice does not require separate trials . . . ." (Emphasis
added). It is well settled that justice requires separate trials
under Rule 3A:10(c) "where evidence of one crime is not
admissible in the trial of the others." Long v. Commonwealth, 20
Va. App. 223, 226-27, 456 S.E.2d 138, 139 (1995); Johnson v.
Commonwealth, 20 Va. App. 49, 56, 455 S.E.2d 261, 265 (1995).
Generally, evidence that a defendant has committed crimes
other than the offense for which he is being tried is highly
prejudicial and inadmissible. See Lewis v. Commonwealth, 225 Va.
497, 502, 303 S.E.2d 890, 892-93 (1983) (noting that admission
into evidence of felony conviction tends to adversely affect the
defendant's presumption of innocence because it unfairly
prejudices him before the jury). Such evidence confuses the
issues before the jury and tends to prejudice the defendant in
(..continued)
of prior conviction, which included evidence of the nature of the
prior offenses and sentences that he received. See Harmon v.
Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971); cf.
Glover v. Commonwealth, 3 Va. App. 152, 161-62, 348 S.E.2d 434,
440-41 (1986). Therefore, the nature of the evidence presented
by the Commonwealth to prove an element of the firearm offense
differs in quality and character and prejudicial effect from the
fact of a prior conviction that could have been elicited by the
Commonwealth for impeachment purposes.
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the minds of the jury by showing his or her depravity and
criminal propensity. Fleenor v. Commonwealth, 200 Va. 270, 275,
105 S.E.2d 160, 163 (1958). 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, see Code §§ 19.2-268
and -269; see, e.g., Banks v. Commonwealth, 16 Va. App. 959, 963,
434 S.E.2d 681, 683 (1993), attacking a defendant's character on
cross-examination, see, e.g., Weimer v. Commonwealth, 5 Va. App.
47, 52-53, 360 S.E.2d 381, 383 (1987), or proving a relevant
issue or element of the offense charged, such as motive, intent,
common scheme or plan, knowledge or identity. See, e.g.,
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970); Godwin v. Commonwealth, 6 Va. App. 118, 122-23, 367
S.E.2d 520, 523 (1988); Sutphin v. Commonwealth, 1 Va. App. 241,
245-46, 337 S.E.2d 897, 899 (1985).
In Johnson, we held that the trial court abused its
discretion by refusing to sever the charge of possession of a
firearm after having been convicted of a felony from charges
related to possession of cocaine. 20 Va. App. at 51, 55-56, 455
S.E.2d at 263, 265. We stated:
To prove the charge of possession of a
firearm after being convicted of a felony,
the Commonwealth was required to prove that
Johnson was a convicted felon. Thus, with
respect to that charge . . . evidence of
Johnson's prior criminal record [was
probative and admissible]. However, the
evidence bore no relevance and had no
probative value with respect to the charges
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relating to possession of cocaine. With
respect to those charges, it served merely
the purpose of prejudicing Johnson in the
eyes of the jury, by suggesting to [them]
that he had a criminal propensity.
Id. at 56, 455 S.E.2d at 265. Because the evidence of Johnson's
prior convictions would have been prejudicial and inadmissible in
a separate trial for possession of cocaine, we held that justice
required severance of these charges in accordance with Rule
3A:10(c). Id. In Long, we reaffirmed Johnson and held that
justice required the trial court to sever the charge of
possession of a firearm by a convicted felon from charges related
to possession of heroin. 20 Va. App. at 226-27, 456 S.E.2d at
139-40.
Similarly, in Kirk, we examined a trial court's failure to
sever the charge of possession of a firearm by a convicted felon
from charges of robbery and use of a firearm in the commission of
a robbery. There, the defendant elected to testify, and, in an
effort to ameliorate the prejudicial impact of the prior
convictions evidence and impeachment evidence that might be
elicited on cross-examination, he acknowledged on direct
examination that he had five prior felony convictions. Kirk, 21
Va. App. at 294, 464 S.E.2d at 163. The panel in Kirk
distinguished that case from Johnson and Long. The Court
concluded:
Kirk testified, thus putting his
character and credibility at issue. His
prior felony convictions thereby became
relevant and admissible for impeachment
purposes. Furthermore, Kirk himself
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testified, on direct examination, that he had
been convicted of five prior felonies.
Although the general rule, enunciated in
Johnson and Long requires a severance when
proof of one charge requires introduction of
evidence that is irrelevant and prejudicial
in the trial of another, the development of
this case rendered harmless any error that
may initially have occurred in denial of
Kirk's motion to sever the charges of
possession of a firearm while a convicted
felon.
Id. at 298, 464 S.E.2d at 165-66 (footnote omitted).
In the present case, a panel of this Court recognized that,
as in Kirk, Hackney chose to testify in his own defense. Under
principles of stare decisis, see Commonwealth v. Burns, 240 Va.
171, 174-75, 395 S.E.2d 456, 457 (1990), a majority of the panel
applied Kirk and held that evidence of Hackney's prior
convictions was relevant and admissible to impeach Hackney's
credibility, thereby rendering harmless the trial court's error
in refusing to sever the charges. Upon rehearing en banc, we
hold that, as a matter of policy, we will not condone a trial
court's clear error in disregarding our decisions in Johnson and
Long by refusing to sever the possession of a firearm by a felon
charge predicated on the assumption that an accused will testify
and render the error harmless.
The trial court's refusal to sever the charges was clearly
erroneous. The holdings in Johnson and Long are clear: under
Rule 3A:10(c), unless the Commonwealth and defendant agree to
joinder, a trial court must sever a charge of possession of a
firearm by a convicted felon from other charges that do not
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require proof of a prior conviction. See Long, 20 Va. App. at
226-27, 456 S.E.2d at 139-40; Johnson, 20 Va. App. at 56, 455
S.E.2d at 265. Kirk reaffirms the underlying principle of those
holdings. However, the Kirk decision was based on application of
the harmless error doctrine upon appellate review. Harmless
error is not a doctrine to be used by the trial court as a basis
to disregard the holdings in Long and Johnson and to anticipate
that the defendant might testify in his or her own behalf. In
this case, the trial court declined to sever the charges after
surmising that Hackney might testify and place his credibility
and character at issue, thereby rendering harmless its erroneous
decision not to sever.
The harmless error doctrine is applicable only upon
appellate review or in the trial court upon consideration of a
motion to set aside a verdict. When applicable, the harmless
error doctrine enables an appellate court or a trial court when
considering a motion to set aside a verdict to ignore the effect
of an erroneous ruling when an error clearly has had no impact
upon the verdict or sentence in a case. See Lavinder v.
Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910 (1991). The
harmless error doctrine should not be used prospectively by a
trial court as a basis to disregard an established rule of law.
Accordingly, we hold that the trial court erred when it
refused to sever the charge of possession of a firearm by a
convicted felon from the charge of grand larceny. Under the
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circumstances of this case, because the trial court disregarded
Johnson and Long, we hold that the trial court's clear error is
not rendered harmless by the fact that Hackney testified in his
own defense. We affirm the firearm charge, see Johnson, 20 Va.
App. at 56-57, 455 S.E.2d at 265, and reverse the grand larceny
conviction and remand the case for a new trial on the grand
larceny charge, if the Commonwealth elects to proceed.
Affirmed in part,
reversed in part,
and remanded.
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