COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Annunziata
UNPUBLISHED
Argued at Salem, Virginia
GALEN CRAIG SHIFFLETT
MEMORANDUM OPINION* BY
v. Record No. 1675-12-3 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 14, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
James V. Lane, Judge
W. Andrew Harding (W. Andrew Harding, PLC, on briefs), for
appellant.
Susan M. Harris, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on briefs), for appellee.
Galen Craig Shifflett (“appellant”) was convicted in a jury trial of aggravated sexual
battery. On appeal, he asserts the trial court erred in allowing the Commonwealth’s attorney to
cross-examine him about the nature of a prior felony conviction. Assuming, without deciding,
that the trial court erred, we conclude any such error was harmless. Accordingly, we affirm
appellant’s conviction.
Appellant testified in his own defense, thereby placing his credibility in issue. See
McCarter v. Commonwealth, 38 Va. App. 502, 506, 566 S.E.2d 868, 869-70 (2002). While
“‘some prejudice rises’ from [the] disclosure of a defendant’s felony conviction[,] . . . ‘its
probative value as to [credibility] outweighs the prejudicial effect.’” Payne v. Carroll, 250 Va.
336, 339, 461 S.E.2d 837, 838 (1995) (quoting Harmon v. Commonwealth, 212 Va. 442, 446,
185 S.E.2d 48, 51 (1971)). However, “[it] has long been well-settled . . . that the character of a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
witness for veracity cannot be impeached by proof of a prior conviction of crime, unless the
crime be a felony, or one which involved moral turpitude or the character of the witness for
veracity.” McLane v. Commonwealth, 202 Va. 197, 203, 116 S.E.2d 274, 279-80 (1960). To
impeach appellant’s credibility, the Commonwealth was entitled to ask whether he had been
previously convicted of a felony or a misdemeanor involving moral turpitude, i.e. lying,
cheating, or stealing. See Powell v. Commonwealth, 13 Va. App. 17, 23-24, 409 S.E.2d 622,
626 (1991). Proper cross-examination regarding appellant’s felony convictions was limited to
the number of the convictions and whether any of them were for perjury. Id.; Code § 19.2-269.
Here, the Commonwealth’s attorney asked appellant if he had been convicted of “any
felonies or any misdemeanors involving moral turpitude,” and he answered, “Yes, two.” The
Commonwealth’s attorney followed up, “Okay, two felonies?” Appellant answered, “Two
felonies.” The prosecutor then asked if one of the felonies involved “lying, cheating, or
stealing.” Appellant responded, “Yes, sir.”
Assuming, without deciding, that the trial court erred by allowing the Commonwealth’s
attorney to question appellant as to whether any of his felony convictions were for lying,
cheating, or stealing, see Payne, 250 Va. at 339, 461 S.E.2d at 839, we conclude such error was
harmless based upon the record before us.
Any error in the admission of evidence regarding a defendant’s criminal record is “not
one of constitutional dimension.” See Lavinder v. Commonwealth, 12 Va. App. 1003, 1007, 407
S.E.2d 910, 912 (1991) (en banc) (non-constitutional harmless error standard applied to
erroneous admission of evidence that defendant had been found “not innocent” of two felonies
while a juvenile). Accordingly, we apply a non-constitutional harmless error standard to the
facts of this case. A non-constitutional error is harmless if
“it plainly appears from the record and the evidence given at the
trial that” the error did not affect the verdict. An error does not
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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 1006, 407 S.E.2d at 911 (quoting Code § 8.01-678).
Here, the record reveals that the victim’s testimony was detailed and partially
corroborated. K.S. testified she was thirteen years old and at home alone when appellant, her
uncle, entered the house at approximately 11:30 a.m. on November 21, 2011. She was watching
a video when she saw a man walking toward her trailer. Believing the man was her older
brother, K.S. unlocked the front door and returned to her video. When appellant entered the
trailer, K.S. was not concerned, as he frequently visited, and she had spent time with his family.
Appellant asked K.S. if her brother and her brother’s girlfriend were there, and K.S.
answered they were at the home of the girlfriend’s mother. Appellant then asked K.S. where her
cell phone was. She told him she had lost it.
Appellant asked K.S. to turn around and close her eyes, adding she was not to tell anyone
about what he was going to do. K.S., who had had no prior problems with her uncle, complied.
Appellant stood behind K.S., put his hands beneath her arms, and asked if he could “play with
[her] titties.” As appellant began to fondle his niece’s breasts, K.S. screamed and tried to pull
away. Appellant only held her tighter and asked “if it felt good.” K.S. told him “no” and asked
him to stop touching her. Instead, appellant held on to her for approximately fifteen seconds as
K.S. struggled with him. When appellant finally released her, K.S. ran to the corner of the
hallway and “curled up in a ball.” She screamed at appellant to leave.
Appellant told K.S. he was “sorry, that that’s what happens when you’re on drugs.” He
also told her not to tell her dad “because if [she] did then he ha[d] a shotgun and he w[ould] take
his life.” Appellant noted he had a double-barreled shotgun.
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After K.S. told appellant she forgave him and promised she would not tell anyone, he left
the trailer. K.S. watched appellant walk down the driveway and enter the basement of his
mother’s house. She then ran to her room in search of her cell phone. When she could not find
it, she ran out the back door so appellant could not see her.
Although she was asthmatic, K.S. ran through a field and over a barbed wire fence before
stopping at the home of the closest neighbor. When the neighbor was not home, she continued
running toward the auto repair shop where her father worked. K.S. estimated the repair shop was
a mile and a half from her trailer.
When K.S. found her father, she told him appellant “tried to rape” her. Her father “got
really mad” and told her to get in his truck. He told K.S. they were going to confront appellant at
his mother’s house and that her father “was going to hurt him.” K.S. begged her father not to go
because of the threat appellant had made. K.S. called “911” from the truck because she was
afraid her father would “overreact.” To K.S.’s relief, her father’s truck ran out of gas at a post
office.
Investigator Doug Miller responded to the post office and spoke with K.S. He noted she
was clearly upset and was “crying” and “shaking.” After speaking with K.S., Investigator Miller
and several patrol units went to Katherine Shifflett’s home to speak with appellant. Investigator
Miller walked around the house and knocked loudly on the doors and windows, but no one
responded. After the officers telephoned Mrs. Shifflett, she came home from work, entered the
house, and found appellant sleeping in his bedroom.
The officers transported appellant to the sheriff’s department and interviewed him after
advising him of his rights. At the time he was taken into custody, appellant was wearing blue
jeans, a black t-shirt with the sleeves cut out and a red insignia on the front, and black tennis
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shoes with a white Nike stripe. Appellant denied having left his mother’s house that day or
visiting K.S.
At trial, K.S. described appellant’s clothing at the time of the assault. She stated he was
wearing a brown jacket with a gray hood, a black shirt “with a little bit of red on it,” blue jeans,
and “black shoes with white on them.”
Steven Comer, with whom appellant lived at the time of trial, corroborated K.S.’s
testimony. He stated he was working at the repair shop when K.S. ran there on November 21,
2011. He noted he had worked with K.S.’s father for over two years, but had never seen K.S.
come to the shop. He described K.S. as crying and “in a panic state.” He corroborated K.S.’s
testimony that her father instructed K.S. to get in the truck and that K.S. “begged him not to go.”
Comer noted that her father’s demeanor was “normal” before K.S. arrived, but he became “very
angry” after speaking with K.S.
Based on this record, we conclude appellant’s testimony that one of his felony
convictions involved lying, cheating, or stealing, made in response to the question challenged on
appeal, did not affect the jury’s verdict, that is, the verdict would have been the same even had
the question not been asked and the testimony had not been elicited and admitted. As the error
was harmless, we affirm appellant’s conviction.
Affirmed.
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Humphreys, J., concurring.
I concur with the judgment of the majority to affirm Shifflett’s conviction; however, I
respectfully disagree with its analysis. I write separately to clarify two points. First, the majority
harmless error analysis is flawed because it fails to address how any prejudice flowing from a
potential error is harmless—namely that the limiting instruction received by the jury cures any
error. Second, I would hold that there is no error here, harmless or otherwise. In my view,
because the Commonwealth could have properly impeached Shifflett under Code § 19.2-269 by
asking him directly if he had been convicted of suborning perjury, the trial court did not err by
allowing the Commonwealth to ask Shifflett whether one of his prior felony convictions
involved lying, cheating, or stealing. The law permits the Commonwealth to inquire into the
nature of Shifflett’s conviction for suborning perjury to some degree.
I.
The majority assumes, without deciding, that the trial court erred by allowing the
Commonwealth to question Shifflett as to whether any of his felony convictions were for lying,
cheating, or stealing. However, it concludes that “such error was harmless based upon the record
before us.” The majority’s only justification for any error being harmless is that the record
contains substantial evidence of Shifflett’s guilt and therefore the jury’s verdict would have been
the same even had the question never been asked. The majority’s analysis is flawed because
although it cites Payne v. Carroll, 250 Va. 336, 461 S.E.2d 837 (1995), it failed to apply a Payne
analysis to address how, if there was error, any risk of undue prejudice to the accused was cured,
rendering any error harmless.
In Payne the Supreme Court found that the trial court did err in allowing improper
impeachment evidence of the witness’ prior convictions because “the danger of prejudice
flowing from the disclosure in issue outweighed its probative value.” Id. at 340, 461 S.E.2d at
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839 (by disclosing the fact that the civil defendant had been convicted of “a felony involving
fraud” the jury could conclude that the defendant was “not only unworthy of belief but also
morally undeserving of an award of damages”). The Court concluded that such an improper
disclosure “was not something that could amount to harmless error,” and further noted that the
jury’s limiting instruction addressed only the “fact” of conviction and not the “nature,” and was
therefore not curative. Id. at 340 n.2, 461 S.E.2d at 839 n.2.
Where there is an improper disclosure of a prior felony conviction for impeachment
purposes, such error is generally not harmless error unless the record is clear that the jury
considered it only for the limited purposes of credibility. See id.; see, e.g., Newton v.
Commonwealth, 29 Va. App. 433, 448, 412 S.E.2d 846, 853 (1999) (concluding that the
Commonwealth’s method of impeaching the witness with evidence of prior convictions was
improper, but holding the error harmless because the trial court directed the jury to disregard that
evidence and the jury is presumed to have followed that curative instruction); cf. Cole v.
Commonwealth, 16 Va. App. 113, 116-17, 428 S.E.2d 303, 305-06 (1993) (finding the
admission of a prior conviction harmless error because the fact finder was a judge rather than a
jury, and judges, unlike juries, are presumed to disregard prejudicial or inadmissible comments
and to consider the evidence for the limited purpose of assessing credibility). However, it is well
established that if the trial court instructs the jury that they may only consider the defendant’s
criminal record for the purposes of credibility and not the issue of guilt or affixing punishment,
“ʻthey are presumed to follow such instructions.’” Lawson v. Commonwealth, 13 Va. App. 109,
112, 409 S.E.2d 466, 467 (1991) (quoting Lewis v. Commonwealth, 8 Va. App. 574, 580, 383
S.E.2d 736, 740 (1989)); see also Powell v. Commonwealth, 13 Va. App. 17, 27, 409 S.E.2d
622, 628 (1991) (“The trial court 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
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not be considered as evidence of guilt or in assessing punishment. ‘Unless the record shows to
the contrary, it is presumed that the jury followed an explicit cautionary instruction.’” (internal
citations omitted))). Moreover, where the risk of prejudice is too great, “[t]he prejudicial effect
cannot be disregarded,” and the admission of the evidence is reversible error irrespective of a
cautionary instruction. Powell, 13 Va. App. at 27, 409 S.E.2d at 628; see, e.g., Lowe v.
Cunningham, 268 Va. 268, 274, 601 S.E.2d 628, 631 (2004).
Therefore, notwithstanding that the majority assumes, without deciding, that the trial
court erred in allowing an erroneous disclosure of Shifflett’s prior felony convictions, in order to
be considered harmless error, that error can only be cured by demonstrating that the jury only
considered it for evaluating Shifflett’s credibility. See, e.g., Payne, 250 Va. at 340, 461 S.E.2d at
839. The majority’s conclusion that any “such error was harmless” is faulty because it focuses
only on the magnitude of the evidence of Shifflett’s guilt, and fails to address how the inquiry
into the nature of Shifflett’s felony convictions was considered by the jury for the limited
purpose of assessing his credibility as a witness, i.e., in light of the cautionary instruction to the
jury.1
However, in my opinion this Court need not engage in a harmless error analysis at all—
because there was no error. For the reasons that follow, I conclude that the trial court did not err
in allowing the Commonwealth to ask whether one of Shifflett’s prior felony convictions
involved lying, cheating, or stealing.
1
In this case, Jury Instruction No. 6 stated:
You may consider proof of the defendant’s prior conviction of a
felony or crime of moral turpitude as affecting his credibility, but it
does not render him incompetent to testify nor shall you consider it
as evidence of his guilt of the offense for which he is on trial (nor
shall you consider it in fixing punishment if you do find him
guilty).
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II.
Before turning to the issue in this case, an examination of the development of the
common law governing the use of witnesses’ prior convictions for impeachment purposes is
instructive in understanding the purpose underlying the limitations on any disclosure of prior
convictions by a testifying defendant in a criminal case.
Whenever a witness testifies under oath, that witness puts his or her credibility at issue.
Tatum v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 137 (1994). The
Commonwealth has traditionally permitted evidence of prior convictions of certain types of
crimes based on the theory that “persons who would commit those crimes are probably unworthy
of belief.” Chrisman v. Commonwealth, 3 Va. App. 89, 91, 348 S.E.2d 399, 400 (1986).
Historically, witnesses’ prior felony or perjury convictions affected more than merely their
credibility under oath—the law deemed them categorically incompetent to testify as a witness in
any capacity. See id. Until the Code of 1919 was adopted, “a person convicted of a felony was
not a competent witness unless such person had been pardoned or punished.” Burford v.
Commonwealth, 179 Va. 752, 762, 20 S.E.2d 509, 513 (1942). However, any person convicted
of perjury was prohibited from being a witness, “even though pardoned or punished.” Id.
(emphasis added). The common law treated perjury convictions more harshly than any other
felony convictions because “the law demands that judicial proceedings shall be fair and free from
fraud and that witnesses be encouraged to tell the truth and that they be punished when they do
not,” thus “[p]erjury strikes at the very heart of the administration of justice.” Slayton v.
Commonwealth, 185 Va. 371, 383, 38 S.E.2d 485, 491 (1946).
Under the current statute, “[a] person convicted of a felony or perjury shall not be
incompetent to testify, but the fact of a conviction may be shown in evidence to affect his
credit.” Code § 19.2-269. The statute permits the examination of a criminal defendant as to his
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prior convictions when he places his credibility at issue by testifying in his own defense.
Harmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971); see also Code
§ 19.2-268 (“[T]he accused may be sworn and examined in his own behalf . . . and shall be
subject to cross-examination as any other witness.”). However, the “sole purpose of such inquiry
is to attack the defendant’s credibility as a witness,” not to prove “evidence of his guilt or
innocence of the crime charged.” Harmon, 212 Va. at 446, 185 S.E.2d at 51. Consequently, the
body of case law construing the scope of permissible impeachment under Code § 19.2-269
narrowly limits the admissibility of the accused’s prior convictions to evidence only relevant to
the defendant’s credibility under oath.
Our Supreme Court held in Harmon that when impeaching the credibility of the accused
with prior convictions under Code § 19.2-269, “the fact of conviction of a felony may be shown
by the Commonwealth, but the name of the felony, other than perjury, and the details thereof
may not be shown.” Id. The Supreme Court expressed concern that if the jury were to know the
name of the felony conviction other than perjury, “it may mean more to them than the mere fact
that the defendant is a person of doubtful veracity.” Id.; see, e.g., Payne, 250 Va. at 340, 461
S.E.2d at 839 (finding that the danger of prejudice flowing from the disclosure of the nature of
the felony conviction “outweighed its probative value”). Later, in Sadoski v. Commonwealth,
219 Va. 1069, 1070, 254 S.E.2d 100, 101 (1979), the Supreme Court extended the rule in
Harmon by holding that the Commonwealth could additionally impeach the defendant by
showing the number of previous felony convictions, reasoning that “if evidence of one felony
conviction is important to a determination of credibility, evidence of more than one felony
conviction is even more important.” If a defendant testifies untruthfully, the Commonwealth
may further impeach the defendant’s credibility as a witness with details of the convictions;
however, only to the extent necessary to prove that the accused testified falsely. See, e.g., Able
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v. Commonwealth, 16 Va. App. 542, 547, 431 S.E.2d 330, 339 (1993) (concluding that it is only
the “fact of conviction” or the intentional misrepresentation of the “fact” that is relevant to
credibility). The rationale underlying the limitations on impeachment of the accused is to “avoid
and minimize” undue prejudice by allowing only evidence relating to the credibility of the
defendant as a sworn witness. Powell, 13 Va. App. at 22-23, 409 S.E.2d at 625-26.
Whether a defendant’s prior felony conviction is for capital murder, grand larceny,
aggravated assault, etc., the rule governing impeachment by prior convictions makes no
distinction between types of felonies—with a single exception: felony convictions for perjury.
Because a prior conviction for perjury bears directly on a witness’ credibility under oath,
“[p]erjury constitutes uniquely probative evidence in the rules governing impeachment of
witnesses.” Lambert v. Commonwealth, 9 Va. App. 67, 71, 383 S.E.2d 752, 754 (1989). Thus,
while the Commonwealth may not impeach the accused by proving the name, nature, or details
of any other felony conviction, “if a prior conviction is for perjury, that offense may always be
named.” McAmis v. Commonwealth, 225 Va. 419, 422, 304 S.E.2d 2, 4 (1983) (emphasis
added). The rule governing impeachment provides this special exception for specifically naming
perjury “because of its crucial probative value upon the issue of credibility.” Lambert, 9
Va. App. at 71, 383 S.E.2d at 754. Unlike disclosing details of other prior felony convictions to
the jury, which carries great risk of undue prejudice to the accused, there is minimal risk that a
jury would consider evidence of a prior perjury conviction for any purpose other than
determining that “the defendant is a person of doubtful veracity.” Harmon, 212 Va. at 446, 185
S.E.2d at 51. Moreover, where the accused’s prior felony conviction is for perjury, the
disclosure’s probative value as to the defendant’s credibility outweighs any potentially
prejudicial effect. See id.; cf. Lambert, 9 Va. App. at 71, 383 S.E.2d at 754 (creating an
exception to the general rule prohibiting evidence of specific acts of untruthfulness that might
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improperly divert the jury’s attention, that would allow evidence of unadjudicated perjury to
impeach the witness because of its highly probative value on the witness’ credibility). Implicit in
the General Assembly’s deliberate choice to create a special exception for disclosing the nature
of perjury convictions—a tradition firmly rooted in the common law—is the concept that
evidence of a perjury conviction is principally relevant to the jury’s determination of the
defendant’s credibility under oath.
While Code § 19.2-269 is silent as to the use of evidence of lesser convictions not
amounting to felony or perjury, the Supreme Court has interpreted the common law to only allow
evidence of convictions for misdemeanors involving moral turpitude to impeach the credibility
of the accused. See Chrisman, 3 Va. App. at 93, 348 S.E.2d at 401 (“There is no statutory
provision which permits an advocate to inquire as to whether the witness previously has been
convicted of a misdemeanor involving moral turpitude,” because “[i]t was not necessary for the
General Assembly to statutorily state that those convicted of misdemeanors would not be
incompetent as witnesses because the common law did not disqualify misdemeanants.”); Parr v.
Commonwealth, 198 Va. 721, 724, 96 S.E.2d 160, 163 (1957) (“[P]roof of conviction of a
misdemeanor involving moral turpitude is admissible to impeach the credibility of a witness, and
. . . conversely, proof of conviction of a misdemeanor not involving moral turpitude is
inadmissible for that purpose.”). The rationale behind limiting the type of misdemeanor is that
only misdemeanor crimes of moral turpitude are relevant to a witness’ veracity. See Newton, 29
Va. App. at 448, 412 S.E.2d at 853 (finding that distribution of marijuana is not a crime of moral
turpitude and therefore is not an appropriate method to impeach the accused’s credibility under
oath); see also Chrisman, 3 Va. App. at 100, 348 S.E.2d at 405 (finding that indecent exposure is
not a crime of moral turpitude because it does not relate to veracity). “Misdemeanor crimes of
moral turpitude are limited to those crimes involving lying, cheating[,] and stealing, including
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making a false statement and petit larceny.” Newton, 29 Va. App. at 448, 412 S.E.2d at 853.
Impeachment evidence is limited to misdemeanor crimes involving moral turpitude only for the
same reason that the felonies other than perjury cannot be named—the risk of undue prejudice to
the accused that the jury will consider it for determining guilt or innocence rather than
credibility. See Chrisman, 3 Va. App. at 98, 348 S.E.2d at 403.
All the limitations on the admissibility of prior convictions to impeach an accused that
takes the stand as a witness on his own behalf discussed supra, are designed to decrease risk of
prejudice to the accused, while cutting straight to the matter at issue: the credibility of the
accused as a sworn witness. With that underlying policy consideration in mind, I now turn to the
case at hand.
III.
The current scope of impeachment of a testifying criminal defendant with evidence of his
prior convictions is as follows: The Commonwealth is limited to proving (1) the fact that the
defendant has previously been convicted of a felony, but not the name or nature of the felony;
(2) the number of felony convictions; (3) whether any of those felony convictions were perjury;
and (4) whether the defendant has been convicted of a misdemeanor involving moral turpitude
(i.e., lying, cheating, or stealing). Hackney v. Commonwealth, 28 Va. App. 288, 292 n.1, 504
S.E.2d 385, 388 n.1 (1998) (citing Sadoski, 219 Va. at 1070-71, 254 S.E.2d at 101).2 If the
2
Virginia Rule of Evidence 2.609(A) describes the limitations on the admissibility of
evidence of a witness’ prior convictions for impeachment purposes when the witness is a party in
a civil case or a criminal defendant:
(i) The fact that a party in a civil case or an accused who
testifies has previously been convicted of a felony, or a
misdemeanor involving moral turpitude, and the number of such
convictions may be elicited during examination of the party or
accused.
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defendant’s response is untruthful, the Commonwealth may impeach the accused with details of
the convictions only to the extent necessary to prove that he testified falsely concerning the prior
convictions. Id. (citing Powell, 13 Va. App. at 21, 409 S.E.2d at 626-27).
The first issue in this case is whether the Commonwealth could have directly asked
Shifflett if he had been convicted of suborning perjury. In other words, does the exception to the
general rule regarding prior felony convictions that allows the Commonwealth to impeach a
testifying defendant’s credibility by specifically naming “perjury” also encompass convictions
for suborning perjury in violation of Code § 18.2-436? The second issue, is whether the trial
court erred in allowing the Commonwealth to ask if one of Shifflett’s felony convictions
involved lying, cheating, or stealing.
Shifflett raised the question before the trial court of whether the Commonwealth could
impeach him on the stand by asking if he had been convicted of perjury notwithstanding the fact
that his felony conviction was actually for suborning perjury in violation of Code § 18.2-436.
The Commonwealth argued that there is no distinction between perjury and suborning perjury
and that if Shifflett took the stand the Commonwealth would ask him “whether he’s been
convicted of any felony involving lying, cheating[,] or stealing,” and “his answer w[ould]
determine whether or not [the Commonwealth] h[as] the ability to present anything else.”
Shifflett argued that suborning perjury was not “deemed” perjury for the purposes of
impeachment under Code § 19.2-269 because they are separate offenses. Moreover, regardless
(ii) If a conviction raised under subdivision (a)(i) is denied,
it may [be] proved by extrinsic evidence.
(iii) In any examination pursuant to this subdivision (a), the
name or nature of any crime of which the party or accused was
convicted, except for perjury, may not be shown, nor may the
details of prior convictions be elicited, unless offered to rebut other
evidence concerning prior convictions.
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of whether or not the Commonwealth could ask specifically about perjury, Shifflett argued that
the law only permitted the Commonwealth to ask a defendant if he has been convicted of a
misdemeanor involving lying, cheating, or stealing—not if he has been convicted of a felony
involving lying, cheating, or stealing. Noting Shifflett’s objections, the trial judge found that the
statute was broad enough to allow Shifflett’s impeachment with his conviction. However, the
trial court did not allow the Commonwealth to ask Shifflett directly if he had been convicted of
perjury. Instead the trial court ruled that it would only allow the Commonwealth “to ask the
question [if Shifflett was] ever convicted of lying, cheating or stealing,”3 and if Shifflett
answered affirmatively, then the Commonwealth did not “need to go into specifics” and probe
any further whether the conviction was specifically for perjury.
Momentarily setting aside the question of whether the trial court erred in allowing the
question that was actually asked at trial about “lying, cheating, or stealing,” I believe the law to
be clear that the Commonwealth would not have been in error to ask Shifflett if he had any
felony convictions for “perjury” or “suborning perjury” since he was convicted of suborning
perjury. Both Code § 18.2-434 and Code § 18.2-436 appear in the Code in Title 18.2 under
Chapter 10, Article 1 entitled “Perjury.” Code § 18.2-436 criminalizes the subornation of
perjury—“procur[ing] or induc[ing] another to commit perjury or to give false testimony under
oath in violation of any provision of this article.” If a person is convicted of suborning perjury in
violation of Code § 18.2-436, “he shall be punished as prescribed in Code § 18.2-434.” The
definition and penalties for perjury are set forth in Code § 18.2-434. Consequently, a conviction
of suborning perjury under Code § 18.2-436 carries with it all of the consequences of a
3
Shifflett’s objection was two-fold: (1) he objected to the trial court’s interpretation of
whether the impeachment rule for perjury convictions included convictions for suborning
perjury, and (2) he argued that the rule allowing evidence of misdemeanor convictions involving
“lying, cheating, or stealing” was separate and distinct from the rule regarding evidence of felony
and perjury convictions.
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conviction for perjury under Code § 18.2-434. These consequences not only include a Class 5
felony conviction, but also lifelong restrictions on the offender’s trustworthiness: “such person
thereby shall be adjudged forever incapable of holding any office of honor, profit or trust under
the Constitution of Virginia, or of serving as a juror.” Code § 18.2-434.
While the Code “treats perjury and subornation of perjury as separate offenses, it
prescribes the same punishment for both.” Mundy v. Commonwealth, 161 Va. 1049, 1061, 171
S.E. 691, 695 (1933). “From this we gather a legislative declaration that the suborner and the
perjurer are alike to be treated, tried and punished for their separate crimes, each to be separately
prosecuted for his independent criminal act.” Id. Moreover, the intention that the suborner and
the perjurer are to be treated and punished alike extends beyond merely felony classifications; it
also includes lifetime consequences affecting the offender’s integrity in the eyes of the law.
Implicit in the legislator’s proclamation that the suborner “shall be punished as prescribed in
Code § 18.2-434” is the intention that the suborner’s credibility shall forever be viewed in the
eyes of the law with the same skepticism as the perjurer.
Pursuant to Code § 19.2-269, an accused’s convictions in violation of Code § 18.2-434
“may be shown in evidence to affect his credit.” Therefore, it follows that the legislature
intended that a suborning perjury conviction punishable under Code § 18.2-434 would similarly
“affect [the suborner’s] credit” under Code § 19.2-269. Because the suborner and the perjurer
are equally blameworthy “in the delivery of false testimony,” each should be similarly
susceptible to impeachment under Code § 19.2-269. The alternative conclusion would be
illogical: the law would hold the suborner as blameworthy and untrustworthy as the perjurer,
except as it relates to his credibility under oath.
Shifflett urges this Court to make a distinction between an offense that is perjury and an
offense that is punishable as perjury—asserting that because suborning perjury is a separate and
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distinct offense, it is therefore not a form a perjury. Shifflett argues that if the legislature
intended for suborning perjury to constitute perjury it could have phrased it as such. As an
example of when the General Assembly did just that, Shifflett points to the language in Code
§ 6.2-1121 which states that “[a]ny person knowingly making a false statement in such a report
shall be guilty of perjury, punishable as provided in [Code] § 18.2-434.” (Emphasis added.) See
also Code § 18.2-204 (“shall be guilty of perjury . . . and punished as provided by the statutes of
this Commonwealth in relation to the crime of perjury”); Code § 19.2-161 (“shall be guilty of
perjury, punishable as a Class 5 felony”). What Shifflett fails to note is that all of these
provisions separately articulate the punishment or consequences. If the legislature intended that
proclaiming that an offender “shall be guilty of perjury,” was sufficient to carry with it all the
penalties for perjury, it would not have needed to separately enumerate the punishments.
Therefore, it is the penalty that reveals what consequences are intended to flow from the
conviction. See, e.g., Pinn v. Commonwealth, 166 Va. 727, 733, 186 S.E. 169, 171 (1936)
(finding a conviction admissible for impeachment that is punishable as a felony). Shifflett is
correct that the law is clear that perjury and subornation of perjury are two separate offenses.
However the General Assembly has also created other crimes that “constitute perjury”—separate
offenses that require different burdens of proof than Code § 18.2-434. See, e.g., Scott v.
Commonwealth, 14 Va. App. 294, 296-97, 297 n.3, 416 S.E.2d 47, 48-49, 49 n.3 (finding that
Code § 18.2-435, which begins “[i]t shall likewise constitute perjury . . . ,” is a separate offense
that requires a different burden of proof than Code § 18.2-434, however both offenses carry
identical penalties (citing Williams v. Commonwealth, 8 Va. App. 336, 381 S.E.2d 361 (1989))).
Therefore, Shifflett’s argument that a conviction for suborning perjury is not subject to
impeachment under Code § 19.2-269 because it is a different offense than perjury is
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unpersuasive. The law is clear: both perjury and suborning perjury are “alike to be treated, tried,
and punished.” Mundy, 161 Va. at 1061, 171 S.E. at 695.
Interpreting the perjury exception to the general rule limiting impeachment with prior
felony convictions to include convictions for inducing another to commit perjury is consistent
with the underlying policy behind the rule and development of the common law. All the
limitations on impeachment by prior convictions of the accused balance the risk of prejudice to
the accused with the probative value as to the credibility of the accused as a sworn witness. See
Powell, 13 Va. App. at 22-23, 409 S.E.2d at 625-26 (“By disclosing the name and nature of the
prior felonies, the risk of prejudice is greatly increased beyond the situation where the
Commonwealth proves only the fact and number of prior convictions . . . [t]he jury is more
inclined not to limit consideration of such evidence to impeaching the accused’s evidence, but
also as tending to show that he is probably guilty of this offense, or is a person of bad
character.”). Because perjury is uniquely probative of a witness’ credibility, the common law
has historically treated perjury differently from all other crimes with respect to witness
credibility. See, e.g., Burford, 179 Va. at 762, 20 S.E.2d at 513. While this Court has found that
the risk of prejudice to the accused increases if the name and nature of his felony convictions are
disclosed to the jury, conversely, if the accused’s prior felony conviction is for perjury,
disclosure is permitted because it is the nature of the convictions that have probative value as to
the defendant’s credibility and therefore, as a matter of law, outweighs any prejudicial effect.
See Harmon, 212 Va. at 446, 185 S.E.2d at 51. The same rationale is true for felony convictions
for suborning perjury—the crime of inducing another to commit perjury. See Henson v.
Commonwealth, 165 Va. 821, 827, 183 S.E. 435, 437 (1936) (“Subornation of perjury, if it
exists, tends to draw out the well-springs of justice . . . .”). Like evidence of prior felony
convictions for perjury, there is minimal risk that a jury would consider evidence of a prior
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felony conviction for suborning perjury for any purpose other than determining that “the
defendant is a person of doubtful veracity.” Harmon, 212 Va. at 446, 185 S.E.2d at 51.
Moreover, this Court has previously interpreted evidentiary exceptions broadly where evidence
is highly probative of a witness’ credibility. See, e.g., Lambert, 9 Va. App. at 71, 383 S.E.2d at
745 (holding that, despite the general rule prohibiting evidence of specific acts of untruthfulness
that might improperly divert the jury’s attention, a witness’ credibility may be attacked on
cross-examination by inquiry into prior specific instances of unadjudicated, but admitted,
perjury, because such an “exception would provide the fact finder with highly probative evidence
regarding the witness’s credibility and at the same time would advance the policy concern of
fairness”).
In summary, the rule allowing the Commonwealth to impeach a testifying defendant’s
credibility by specifically naming perjury includes convictions for suborning perjury in violation
of Code § 18.2-436. Such an interpretation is consistent with the policy underlying the rules and
the common law treatment of perjury for impeachment because both convictions bear equally on
the defendant’s veracity. Consequently, the Commonwealth could have inquired into Shifflett’s
prior conviction.
In this case, however, the Commonwealth did not ask Shifflett if he had ever been
convicted of “perjury.” The Commonwealth first asked Shifflett if he had ever “been convicted
of any felonies or any misdemeanors involving moral turpitude.” Shifflett answered “yes.” The
Commonwealth then asked how many felony convictions, to which Shifflett responded, “[t]wo
felonies.” As discussed in length above, the Commonwealth’s questions were permissible to this
point—the Commonwealth can inquire about felony convictions without naming specific
felonies expect for perjury, the number of felony convictions, and misdemeanor convictions
involving lying, cheating, or stealing. See Hackney, 28 Va. App. at 292 n.1, 504 S.E.2d at 388
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n.1. The questionable error lies with the Commonwealth’s next question: “did one of those
crimes that you’ve been convicted of, the felonies, involve lying, cheating, or stealing?”
Thus, the issue is whether the trial court erred by allowing the Commonwealth to inquire
into the nature of Shifflett’s prior felony conviction—whether the conviction involved lying,
cheating, or stealing. While the majority assumes, without deciding, that this inquiry was error,
in my view, it was within the scope of the current rule. My reasoning is as follows: (1) because,
as discussed supra, the Commonwealth could have properly asked Shifflett if he had been
convicted of perjury, and (2) because the rules contain a special exception that allows the
Commonwealth to disclose the nature of felony convictions for perjury or in this case suborning
perjury, (3) the trial court therefore did not err by allowing the Commonwealth to ask whether
his felony conviction involved lying, cheating, or stealing.
Generally, the Commonwealth cannot ask whether the accused has been convicted of a
felony involving moral turpitude or otherwise disclose the nature of the felony conviction. In
Payne, the Supreme Court found that the trial court erred by allowing counsel to show the nature
of the witness’ prior felony conviction by asking whether the party-witness had even been
convicted of a “felony involving fraud.” Payne, 250 Va. at 338, 340, 461 S.E.2d at 838, 839.
However, this case is distinguishable from Payne because it is well settled that perjury
convictions, unlike all other felony convictions including fraud, are a unique exception to the
general rule prohibiting the disclosure of a defendant’s prior felony conviction. See, e.g., id. at
340, 461 S.E.2d at 839 (“Paraphrasing the rule in Harmon defining the permissible scope of
impeachment of an accused-witness in a criminal prosecution, we hold that, for purposes of
impeachment, the fact of a prior conviction of a felony may be shown against a party-witness in
a civil case, but that the name of the felony, other than perjury, and the details thereof may not be
shown.”); McAmis, 225 Va. at 422, 304 S.E.2d at 4 (“[I]f a prior conviction is for perjury, that
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offense may always be named.”); Sadoski, 219 Va. at 1071, 254 S.E.2d at 101(“[T]he
Commonwealth may ask a defendant who testifies in a criminal proceeding the number of times
he has been convicted of a felony, but, consistent with our ruling in Harmon, not the names of
the felonies, other than perjury, and not the nature or details thereof.”); Harmon, 212 Va. at 446,
185 S.E.2d at 51(“[T]he fact of conviction of a felony may be shown by the Commonwealth, but
the name of the felony, other than perjury, and the details thereof may not be shown.”); Able, 16
Va. App. at 546, 431 S.E.2d at 339 (“Unless the prior conviction was for perjury, neither the
nature of the felony nor the details of the conviction are admissible.”); Powell, 13 Va. App. at
20-21, 409 S.E.2d at 624-25 (“When the Commonwealth attempts to impeach the credibility of
the accused by showing prior felony convictions, in order to avoid undue prejudice to the
accused, neither the nature of the felony, other than perjury, nor the details of the crime are
admissible; only the fact of a conviction can be shown.”). Thus, the rule prohibiting the
Commonwealth from impeaching a defendant “by proving the nature or details of a prior
conviction, other than perjury,” Hackney, 28 Va. App. at 292 n.1, 504 S.E.2d at 388 n.1
(emphasis added), implies by negative inference that the Commonwealth is allowed to delve into
the nature of an accused’s prior conviction for perjury.
Because the Commonwealth could properly inquire into the nature of Shifflett’s
“perjury” conviction, the only issue that remains is whether the question the Commonwealth
asked, “did one of those crimes that you’ve been convicted of, the felonies, involve lying,
cheating, or stealing,” does just that. Perjury, lying under oath, is not only a felony but is also a
crime of moral turpitude. Crimes of moral turpitude are crimes that involve lying, cheating, or
stealing. See Newton, 29 Va. App. at 448, 412 S.E.2d at 853. Consequently, asking Shifflett
whether one of his convictions involved lying, cheating, or stealing, was effectively asking about
the nature of Shifflett’s perjury conviction.
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In sum, because the Commonwealth could have properly asked Shifflett if he had been
convicted of perjury, and because the rules contain an exception that allows the Commonwealth
to disclose the nature of felony convictions for perjury, the trial court did not err by allowing the
Commonwealth to ask whether his felony conviction involved lying, cheating, or stealing.
It is on that basis that I would affirm the judgment of the trial court.
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