COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, McCullough and Senior Judge Clements
PUBLISHED
Argued at Richmond, Virginia
TEVEIN DEWAYNE HARVEY
OPINION BY
v. Record No. 2037-14-2 JUDGE STEPHEN R. McCULLOUGH
OCTOBER 13, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Leslie M. Osborn, Judge
N. Garrison Elder (Hawthorne & Hawthorne, P.C., on brief), for
appellant.
Michael T. Judge, Senior Assistant Attorney General (Mark R.
Herring, Attorney General; Susan Mozley Harris, Assistant Attorney
General, on brief), for appellee.
Tevein Dewayne Harvey argues that the trial court erred in permitting a victim of his crimes
to testify at sentencing concerning the details of those crimes. He contends that such testimony
exceeded the scope of permissible testimony under Code §§ 19.2-295.3 and 19.2-299.1. He also
argues that the trial court committed an abuse of discretion by permitting the victim to testify about
one of the charges that was “nol prossed.” We find no error and affirm.
BACKGROUND
Appellant pled guilty to two charges of attempted murder, possession of a firearm by a
nonviolent felon, burglary, robbery of a residence with the use of a gun, abduction for pecuniary
gain, strangulation, abduction by force, threat, intimidation, conspiracy to commit armed
robbery, and three charges of use of a firearm in the commission of a felony.1 In exchange, the
Commonwealth, among other things, agreed to nolle prosequi a number of charges.
Heather Brown, one of the victims, submitted a victim impact statement prior to the
sentencing hearing. At the sentencing hearing, the prosecution asked Brown’s mother if she had
found out what happened to her daughter and grandson. As she began to answer, the defense
objected, contending that “the line of questioning is recounting the facts of the case to which
we’ve already entered pleas and stipulated.” The court sustained the objection, stating that
“[s]ince this is victim testimony, you can ask her what was related to her and how did that affect
her. That’s the area you can get into. I don’t want to go through all the details.”
The prosecution asked the next witness, Heather Brown, to “tell the Court what happened
to [her] on December 9, 2013.” Counsel immediately objected on the basis that “[w]e’ve entered
guilty pleas. We’ve stipulated. I think the Commonwealth has liberty to ask how those events
have affected folks, but,” whereupon the court interjected, “What happened in this crime is the
evidence and I’m going to overrule your objection. She is the victim. She can tell what
happened.”
The victim proceeded to relay what transpired. She testified to a violent robbery that
took place in her home. She heard a loud knock on the door and soon afterwards the door burst
open. A man wearing a bandana and carrying a gun entered her home. He pointed the gun at her
head, grabbed her by the hair, and demanded money. He struck her with the butt of the gun and
with his fists. According to Brown, when she failed to produce her wallet, the man grabbed her
one-year-old son by the throat and put his gun to the baby’s head, stating that he would count to
twenty, and if she did not produce the money, he would “blow [her] son’s brains out.” At one
1
Appellant entered an Alford plea to one of the attempted murder charges and to the
strangulation charge. See North Carolina v. Alford, 400 U.S. 25 (1970).
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point, he dropped the child to the floor. She also noticed the presence of a second man in her
home as the robbery unfolded.
The defense presented two witnesses in mitigation, appellant and his mother. Appellant
contested the victim’s account in part, stating that “a lot of stuff [she] is exaggerating didn’t
happen, Your Honor.” The court inquired, “Sir, you just told me that some of the things she said
were not true and that the father of the child had a part in this. I don’t know what you’re talking
about. If you want me to consider that[,] you’ve got to tell me what you’re talking about.”
Appellant then testified, among other things, that the victim and her husband were dealing drugs,
and he denied harming Brown’s infant son.
Before pronouncing a sentence, the court mentioned the appellant’s criminal record, the
violence of appellant’s actions, and the mitigation evidence contained in the presentence report.
The court concluded that appellant’s sentence should be one that exceeded the sentencing
guidelines. The court imposed a total sentence of 133 years, with 87 years suspended, for a total
active sentence of 46 years.
ANALYSIS
This case presents a matter of statutory construction. We review such a question de novo.
Jay v. Commonwealth, 275 Va. 510, 517, 659 S.E.2d 311, 315 (2008).
Under longstanding practice,
“both before and since the American colonies became a nation,
courts in this country and in England practiced a policy under
which a sentencing judge could exercise a wide discretion in the
sources and types of evidence used to assist him in determining the
kind and extent of punishment to be imposed within limits fixed by
law.”
McClain v. Commonwealth, 189 Va. 847, 859-60, 55 S.E.2d 49, 55 (1949) (quoting Williams v.
New York, 337 U.S. 241, 246 (1949)); see also Prieto v. Commonwealth, 283 Va. 149, 168, 721
S.E.2d 484, 496 (2012) (“The scope of testimony in the sentencing phase is wide, and the
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standard for exclusion of relevant evidence is whether the prejudicial effect substantially
outweighs its probative value. This is a matter of discretion for the circuit court and is properly
reviewed under an abuse of discretion standard.” (citation omitted)).
For example, for many crimes, courts must order the preparation of a presentence report
that contains the results of a “thorough[] investigat[ion]” and includes the convict’s criminal
history and “all other relevant facts.” Code § 19.2-299. Courts are also directed in all felony cases
such as this one to consult sentencing guidelines. Code § 19.2-298.01. Defendants, of course, can
testify and offer mitigation evidence from a variety of sources, including relatives, employers,
friends, religious figures, and others.
The Code also ensures that victims of crime have a voice in the process. Code § 19.2-295.3
provides in relevant part:
Whether by trial or upon a plea of guilty, upon a finding
that the defendant is guilty of a felony, the court shall permit the
victim, as defined in § 19.2-11.01, upon motion of the attorney for
the Commonwealth, to testify in the presence of the accused
regarding the impact of the offense upon the victim. The court
shall limit the victim’s testimony to the factors set forth in clauses
(i) through (vi) of subsection A of § 19.2-299.1. In the case of trial
by jury, the court shall permit the victim to testify at the sentencing
hearing conducted pursuant to § 19.2-295.1 or in the case of trial
by the court or a guilty plea, the court shall permit the victim to
testify before the court prior to the imposition of a sentence.
Code § 19.2-299.1, which governs victim impact statements, provides in relevant part:
A Victim Impact Statement shall be kept confidential and shall be
sealed upon entry of the sentencing order. If prepared by someone
other than the victim, it shall (i) identify the victim, (ii) itemize any
economic loss suffered by the victim as a result of the offense,
(iii) identify the nature and extent of any physical or psychological
injury suffered by the victim as a result of the offense, (iv) detail
any change in the victim’s personal welfare, lifestyle or familial
relationships as a result of the offense, (v) identify any request for
psychological or medical services initiated by the victim or the
victim’s family as a result of the offense, and (vi) provide such
other information as the court may require related to the impact of
the offense upon the victim.
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Appellant argues that Code § 19.2-295.3 and the six factors it cross-references from Code
§ 19.2-299.1 limit the scope of a victim’s testimony at a sentencing hearing to victim impact
evidence.2 Therefore, the victim may not testify concerning the facts of the crime itself. He also
argues that the prejudicial effect of Brown’s testimony substantially outweighed its probative
value.
“We apply the plain meaning of the language appearing in the statute unless it is
ambiguous or applying the plain language leads to an absurd result.” Commonwealth v. Amos,
287 Va. 301, 305-06, 754 S.E.2d 304, 306-07 (2014) (citation omitted). First, Code § 19.2-295.3
requires trial courts to permit victims to testify concerning the impact of the crime on the victim.
The statute thus limits a trial court’s broad discretion to exclude such testimony, and it clarifies that
a jury may hear such evidence during the sentencing phase of a jury trial. See Rock v.
Commonwealth, 45 Va. App. 254, 259, 610 S.E.2d 314, 316 (2005) (“By explicitly providing that
victims shall be allowed to testify regarding the impact of the offense on them when the
defendant is found guilty of a felony, Code § 19.2-295.3 establishes the victim’s right to testify
. . . .”). Second, Code § 19.2-295.3, by referencing the six factors found in Code § 19.2-299.1,
limits the scope of victim impact testimony to those factors. Both Code § 19.2-295.3 and the factors
it references from Code § 19.2-299.1 expressly apply to victim impact testimony. They do not, by
their text or by implication, preclude a trial court from considering testimony from a victim at the
sentencing hearing about the underlying facts of the crime, provided that the trial judge concludes,
within his broad discretion, that such evidence would help the court fashion an appropriate sentence.
2
We acknowledge the Commonwealth’s argument that this issue is procedurally
defaulted under Rule 5A:18. As an appellate court, we seek ‘“the best and narrowest ground
available”’ for our decision. Armstead v. Commonwealth, 56 Va. App. 569, 576, 695 S.E.2d
561, 564 (2010) (quoting Kirby v. Commonwealth, 50 Va. App. 691, 698 n.2, 653 S.E.2d 600,
603 n.2 (2007)). With respect to this assignment of error, we conclude that resolving the merits
of the question presented constitutes the narrowest and best ground.
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This conclusion is not only in accord with the plain language of Code §§ 19.2-295.3 and
19.2-299.1; it is also consistent with a stated objective of Virginia’s foundational charter of
government. The General Assembly and the people of Virginia amended the Constitution to
ensure that victims of crime have a voice in the process. Section 8-A of the Constitution of
Virginia, entitled “Rights of victims of crime,” provides that crime victims must be provided
with “access to a meaningful role in the criminal justice process,” including, among other things,
“[t]he right to address the circuit court at the time sentence is imposed.” Va. Const. art. I, § 8-A.
Our interpretation is also consistent with one of the stated policy goals of the Crime Victim and
Witness Rights Act, Code §§ 19.2-11.01 to -11.4, which is to “ensure that the full impact of crime is
brought to the attention of the courts of the Commonwealth.” Code § 19.2-11.01(A).
We do not hold that any and all evidence concerning the facts of the crime must be
admitted at sentencing. Circuit court judges are vested with broad discretion in admitting
evidence, Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988), and can be
expected to exercise that discretion to exclude evidence that does not aid the court in the
sentencing phase. We simply hold that Code §§ 19.2-295.3 and 19.2-299.1 do not compel courts
to exclude testimony from victims concerning the circumstances of the crime when that testimony
would assist the court as it considers what sentence to impose. And, of course, such testimony is
subject to cross-examination by the defendant, as well as any rebuttal evidence from the defendant.
Finally, we perceive no abuse of discretion in the trial court’s weighing of the probative
value of the evidence against its prejudicial effect. “Such weighing is left to the discretion of the
trial court and will not be disturbed on appeal, absent an abuse of discretion.” Teleguz v.
Commonwealth, 273 Va. 458, 482, 643 S.E.2d 708, 723 (2007).
With respect to Harvey’s second assignment of error, that the trial court erred by
permitting the victim to testify about one of the charges that was nolle prosequied, we conclude
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that this argument is barred by Rule 5A:18. Rule 5A:18 provides that “[n]o ruling of the trial
court . . . will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling.” Appellant did not object at trial that the victim impermissibly
strayed in her testimony when she mentioned a charge that was dismissed by nolle prosequi.
Accordingly, we hold that Rule 5A:18 precludes us from reaching this assignment of error.
CONCLUSION
We affirm the judgment of the trial court.
Affirmed.
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