Washington v. Commonwealth

BENTON, J., with whom FITZPATRICK, C.J.,

joins, dissenting.

Code § 18.2-51 provides that “if any person maliciously wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony.” In pertinent part, Code § 19.2-297.1 provides as follows:

A. Any person convicted of two or more separate acts of violence when such offenses were not part of a common act, transaction or scheme ... shall, upon conviction of a third or subsequent act of violence, be sentenced to life imprisonment and shall not have any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of two or more such acts of violence.
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B. Prior convictions shall include convictions under the laws of any state or of the United States for any offense substantially similar to those listed under “act of violence” if such offense would be a felony if committed in the Commonwealth.
The Commonwealth shall notify the defendant in writing, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section.

This appeal concerns the meaning and applications of these statutes, not the common law. In applying these statutes, we are guided by well established principles.

*296Under basic rules of statutory construction, we determine the General Assembly’s intent from the words contained in the statute. When the language of a statute is plain and unambiguous, courts are bound by the plain meaning of that language. Thus, when a statute’s language is unambiguous, courts cannot give that language a construction that amounts to holding that the General Assembly did not mean what it actually has stated.

Volkswagen of America v. Smit, 266 Va. 444, 452, 587 S.E.2d 526, 531 (2003) (citations omitted). See also Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) (holding that when a statute has words of a plain import courts cannot construe them in a way that varies the plain meaning of the language). In other words, courts are bound by the plain meaning of clear, unambiguous statutory language. Pope v. Commonwealth, 19 Va.App. 130, 132, 449 S.E.2d 269, 270 (1994).

Nothing in Code § 18.2-51, the statute proscribing malicious wounding, provides that the occurrence of prior, separate acts of violence are elements of the offense of malicious wounding. Likewise, Code § 19.2-297.1, the statute that defines the effect of prior, separate acts of violence, does not provide that these acts are elements of the offense proscribed by Code § 18.2-51. By its plain meaning, Code § 19.2-297.1 unambiguously applies during punishment only after the defendant has been convicted of a substantive offense. It expressly applies only “upon conviction of a third or subsequent act of violence,” and it provides that the convicted person “shall ... be sentenced to life imprisonment” upon the terms of the statute. Code § 19.2-297.1 (emphasis added). Significantly, Code § 19.2-297.1 also provides that the prosecutor must “notify the defendant in writing, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section.” (Emphasis added).

In short, Code § 19.2-297.1 unambiguously relates to the punishment to be imposed upon conviction. Reinforcing its clear, unambiguous language, the legislature enacted Code § 19.2-297.1 in Title 19.2, Chapter 18, of the Code of Virginia *297under the heading “Sentence; Judgment; Execution of Sentence.” It is the only penalty enhancing statute in that chapter. Equally significant is the placement of this statute in the same title of the Code of Virginia as Code § 19.2-295.1, which provides for the bifurcation of trials in which evidence of prior criminal convictions is admitted during the punishment phase.13

Looking to the common law, the majority concludes that recidivism evidence has traditionally been presented during the guilt phase of trial. Even if that be true, it bears repeating that the issue before us concerns a statute that expressly applies only “upon conviction of a third offense or subsequent act of violence” and provides that the convicted person “shall ... be sentenced to life imprisonment” upon the terms of the statute. Code § 19.2-297.1. The very language of Code § 19.2-297.1 is explicit evidence that the legislature did not intend to codify the common law principles that the majority relies upon.

The common law is further rendered irrelevant to this issue because a statute, Code § 19.2-295.1, provides for the bifurcation of trials in Virginia and requires evidence of prior criminal convictions be admitted during the punishment or sentencing phase. Read together, Code § 19.2-297.1 and Code § 19.2-295.1 manifest the conclusion that the legislature intended that prior convictions be proved only during the punishment phase when the purpose is to establish a sentencing factor. Reading together statutes that relate to the same subject matter has not heretofore been deemed a “judicial *298graft,” but rather application of well-settled principles of statutory construction. The Supreme Court discussed these principles in depth almost fifty years ago:

The general rule is that statutes may be considered as in pari materia when they relate to the same person or thing, the same class of persons or things or to the same subject or to closely connected subjects or objects. Statutes which have the same general or common purpose or are parts of the same general plan are also ordinarily considered as in pari materia. 50 Am. Jur., Statutes, § 350, p. 347.

In 50 Am. Jur., Statutes, § 349, pp. 345, 346, 347, it is said:

“Under the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great connected, homogeneous system, or a single and complete statutory arrangement. Such statutes are considered as if they constituted but one act, so that sections of one act may be considered as though they were parts of the other act, as far as this can reasonably be done. Indeed, as a general rule, where legislation dealing with a particular subject consists of a system of related general provisions indicative of a settled policy, new enactments of a fragmentary nature on that subject are to be taken as intended to fit into the existing system and to be carried into effect conformably to it, and they should be so construed as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness. It will be assumed or presumed, in the absence of words specifically indicating the contrary, that the legislature did not intend to innovate on, unsettle, disregard, alter or violate a general statute or system of statutory provisions the entire subject matter of which is not directly or necessarily involved in the act.” See also 17 M.J., Statutes, § 40, p. 293, 82 C.J.S., Statutes, § 365, p. 799.
The author of Sutherland Statutory Construction, 3rd Ed., In Pari Materia and Adopted Statutes, Vol. 2, § 5201, *299p. 529 has this to say: “Provisions in an act which are omitted in another act relating to the same subject matter will be applied in a proceeding under the other act, when not inconsistent with its purposes.”

In Mitchell v. Witt, 98 Va. 459, 461, 36 S.E. 528, the court stated:

“Statutes which are not inconsistent with one another, and which relate to the same subject matter, are in pari materia, and should be construed together; and effect should be given to them all, although they contain no reference to one another, and were passed at different times. Especially should effect be given, if possible, to statutes in pari materia enacted at the same session of the Legislature.” This principle was quoted with approval in Commonwealth v. Sanderson, 170 Va. 33, 39, 195 S.E. 516. Cf. Wilson v. State, 117 Tex.Crim. Rep. 63, 36 S.W.2d 733.

In Seaboard Finance Corporation v. Commonwealth, 185 Va. 280, 286, 38 S.E.2d 770, we said:

“It is a cardinal rule of construction that statutes dealing with a specific subject must be construed together in order to arrive at the object sought to be accomplished.”

Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957). Accord Lucy v. County of Albemarle, 258 Va. 118, 129-30, 516 S.E.2d 480, 485 (1999).

As the majority opinion notes, the General Assembly enacted Code § 19.2-295.1 and Code § 19.2-297.1 in the same bill. We can presume, therefore, that the General Assembly intended that the statutes were to be understood as “imbued with the same spirit and actuated by the same policy.” Lillard v. Fairfax Airport Authority, 208 Va. 8, 13, 155 S.E.2d 338, 342 (1967). Indeed, the principle is long standing “that where two statutes are passed by the same session of the legislature, as was the case here, that fact furnishes strong evidence that they were intended to stand together.” South Norfolk v. Norfolk, 190 Va. 591, 602, 58 S.E.2d 32, 37 (1950). This principle is to be followed even if the statutes “contain no *300reference to one another.” Prillaman, 199 Va. at 406, 100 S.E.2d at 7.

Simply put, both statutes are concerned with proof of prior convictions that are to be used as a sentencing factor. Code § 19.2-295.1 requires “a separate proceeding limited to the ascertainment of punishment” after a finding of guilt. Code § 19.2-297.1 specifies punishment for a “person convicted of two or more separate acts of violence.” The suggestion that the General Assembly did not intend these two statutes to stand together does not stand close analysis and certainly finds no foundation in the common law.14 Indeed, read together, the statutes plainly manifest a codification of procedures in derogation of any common law “order of proof’ that may have existed. The statutes contain no conflicting language; they can be and should be reconciled and construed together. Simply put, the principles relevant to this appeal are to be found in our current scheme of jurisprudence.

Unlike the majority opinion, the Commonwealth does not rely upon the common law but, instead, contends that the phrase “found by the jury,” which is contained in Code § 19.2-297.1, implies that the fact finder must make a finding that the defendant has twice before been convicted of violent offenses prescribed by the statute. I agree with this assertion, as far as it goes. The statutory language, however, does not require that the prior conviction evidence be admitted during the guilt phase of trial. Rather, it expressly provides that “upon conviction of a third or subsequent act of violence” that person shall be sentenced to life imprisonment, “provided it is admitted, or found by the jury or judge before whom [the *301defendant] is tried, that he has been previously convicted of two or more ... acts of violence.” Code § 19.2-297.1 (emphasis added). This statute merely requires the prosecutor to prove as an adjunct to the fact of the prior conviction the additional facts the General Assembly deemed to be necessary to obtain the enhanced penalty. By the express language of Code § 19.2-297.1, those facts are statutorily made relevant to the penalty to be imposed. They are appropriately the subject of a finding instruction, see Joseph v. Commonwealth, 249 Va. 78, 89-90, 452 S.E.2d 862, 869-70 (1995) (discussing finding instructions concerning punishment), and require no extraordinary procedure at the punishment phase. Consistent with Code § 19.2-295.1 (and Rule 3A:17.1), this is evidence for enhancing punishment that is admissible and appropriate for the jury’s determination at the punishment phase of trial.15 Therefore, the trial judge must instruct the jury at the punishment phase (see Code § 19.2-295.1—where the Commonwealth “present[s] the defendant’s prior criminal convictions”) that it must find these additional facts if it is to impose the enhanced punishment required by Code § 19.2-297.1.

The Commonwealth also relies on Berry v. Commonwealth, 22 Va.App. 209, 468 S.E.2d 685 (1996), to support its proposition that Code § 19.2-297.1 must be read to provide that the *302prior convictions are elements of the offense and, therefore, evidence of those convictions is properly submitted to the jury during the guilt phase of the trial. The short answer to this argument is that Berry does not require that we hold that Code § 19.2-297.1 is an element of the offense of malicious wounding because Berry concerned an entirely different statute, Code § 18.2-248. The Berry decision dealt with the issue whether a defendant’s prior narcotics convictions under Code § 18.2-248 were properly admitted to the jury during the guilt phase of the bifurcated trial in a third narcotics prosecution under Code § 18.2-248. Berry, 22 Va.App. at 213, 468 S.E.2d at 687. Unlike Code § 18.2-51 and Code § 19.2-297.1, the statutes at issue in this case, Code § 18.2-248, which was the statute at issue in Berry, provides for the substantive offense as well as for the penalty enhancement for a subsequent offense within the same statute. In Berry, we relied upon this inclusion of the penalty enhancement in the same statute which creates the substantive crime in determining that the penalty enhancement was an element of the offense.

Recently, in Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000), the Supreme Court held that introducing evidence of prior convictions at the guilt phase of trial did not violate a defendant’s constitutional right to due process under the Fourteenth Amendment. Id. at 227-28, 532 S.E.2d at 31 (citing Brown v. Commonwealth, 226 Va. 56, 59, 307 S.E.2d 239, 241 (1983)). Supporting its holding that no due process violation occurred, the Court noted that the trial judge in Medici instructed the jury to consider the prior convictions only as evidence of a prior conviction and not as evidence of the defendant’s guilt. Id. at 229, 532 S.E.2d at 32. The Court, however, specifically declined to address “whether the better policy would be to introduce a prior conviction into evidence only during the sentencing phase ... [or] whether a prior conviction is an element of the offense charged.” Id. The Court declined to do so because the issue raised by Medici dealt solely with whether his constitutional due process rights were violated. Id.

*303In simple terms, the Supreme Court declined to decide the state-law issue in Medici because Medici raised only a federal constitutional due process issue. The United States Supreme Court has recognized the proposition that, although it is usually the case that prejudice is necessary to establish a violation of due process, see Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 1632-33, 14 L.Ed.2d 543 (1965); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114 (1961), a claim of prejudice is not virtually identical to a claim of a due process violation. As the Court has noted, “proof of prejudice is generally a necessary but not sufficient element of a due process claim.” United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752 (1977).

Unlike the majority here, I believe the statute’s notice requirement, our bifurcated trial procedure, and the use of recidivism as a classic sentencing factor (reflecting society’s determination that a defendant deserves enhanced punishment after a third conviction) provide additional indications that the legislature intended Code § 19.2-297.1 to function as part of Virginia’s sentencing scheme. Quite simply, to conclude that the crime of malicious wounding includes the element of a sentencing aggravator, unrelated to the charged crime, is illogical. The Supreme Court’s decision in Spencer v. Texas, 385 U.S. 554, 572, 87 S.Ct. 648, 658, 17 L.Ed.2d 606 (1967), does not require that we read Code § 19.2-297.1 in such a manner. Like Medici, Spencer dealt with the due process issue of allowing a defendant’s prior convictions during the guilt phase, and not an issue of statutory construction. 385 U.S. at 559, 87 S.Ct. at 651. Significantly, the Court noted that prior conviction “evidence is generally recognized to have potentiality for prejudice.” Id. at 560, 87 S.Ct. at 652. The Court deferred, however, to the procedures adopted under each state’s “complex code of state criminal evidentiary law” as the mechanism for ameliorating the prejudice. Id. at 562, 87 S.Ct. at 653.

In a concurring and dissenting opinion, Chief Justice Warren noted that, as a logical proposition, “[t]he admission [of prior convictions] in connection with enhancing punishment for *304repeating offenders has nothing whatever to do with the question of guilt or innocence of the crime currently charged.” Id. at 579, 87 S.Ct. at 661. He further observed the following:

Because of the complete irrelevance of prior convictions to the question of guilt or innocence, the recidivist situation is not one where the trial courts are called upon to balance the probative value of prior convictions against their prejudicial impact. The purpose of admitting prior-convictions evidence should be served and prejudice completely avoided by the simple expedient of a procedure which reflects the exclusive relevance of recidivist statutes to the issue of proper punishment. Only after a defendant has been found guilty does the question of whether he fits the recidivist category become relevant to the sentence, and any issue of fact as to his prior convictions should then be decided by the jury.

Id.

These observations are apt because we have in Virginia a statutorily mandated system of bifurcated trials. The Supreme Court of Virginia recognized this, and the irrelevance of a defendant’s prior convictions during the guilt phase, in Medici, when it posed without answering the question “whether the better policy would be to introduce a prior conviction into evidence only during the sentencing phase ... [or] whether a prior conviction is an element of the offense charged.” 260 Va. at 229, 532 S.E.2d at 32. Contrarily, the majority concludes that the recidivist statute mandates that a defendant’s prior convictions must be proven during the prosecution’s case-in-chief. This construction of the statute ignores the irrelevance of Washington’s prior conviction to the question of guilt or innocence of the malicious wounding charge. Furthermore, it creates a procedure by which the Commonwealth will needlessly and unfairly benefit from the prejudicial effect of the prior convictions.

A “bedrock principle of Anglo-American jurisprudence,” see generally, 1 John H. Wigmore, A Treatise On The Anglo-American System Of Evidence In Trials At Common Law, *305§§ 55-68a, at 449-91 (3d ed.1940), is the recognition of the prejudice of a defendant’s prior convictions.

The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defendant against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.

Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218-19, 93 L.Ed. 168 (1948) (Jackson, J., concurring). Virginia has of course recognized this long standing prohibition against admitting prior crimes. Absent some exception to the general rule, “evidence implicating an accused in other crimes unrelated to the charged offense is inadmissible because it may confuse the issues being tried and cause undue prejudice to the defendant.” Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998); Limbaugh v. Commonwealth, 149 Va. 383, 383, 140 S.E. 133, 135 (1927) (noting that “[t]he accused comes to trial to meet the specific charge against him, not to vindicate or to explain every collateral charge that may be made in the course of the introduction of the evidence”).

I cannot conclude, as does the majority, that the legislature intended to needlessly prejudice a defendant by enacting Code § 19.2-297.1. The principle is well established that evidence of other crimes, admitted in the prosecution’s case-in-chief, creates undue prejudice, reverses the presumption of innocence, and constitutes reversible error, notwithstanding the absence of a claim of a due process violation. Lewis v. Commonwealth, 225 Va. 497, 501-02, 303 S.E.2d 890, 893 (1983). See also Donahue v. Commonwealth, 225 Va. 145, 156, 300 S.E.2d 768, 774 (1983). “The principle that there is a presumption of *306innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481 (1895). Even evidence of a defendant’s prior misconduct “will usually sink the defense without [a] trace,” Edward Imwinkelried, Uncharged Misconduct Evidence § 1:02 (2004) (citing Elliott, The Young Person’s Guide to Similar Fact Evidence, 1983 Crim. L.Rev. 284), while evidence of prior crimes is “the most prejudicial evidence imaginable against an accused.” Id. (quoting People v. Smallwood, 42 Cal.3d 415, 228 Cal.Rptr. 913, 722 P.2d 197, 205 (1986)) (superseded by Cal. Evid.Code § 1108).

This basic foundation of our jurisprudence is inconsistent with allowing prior convictions as evidence during the guilt phase under the guise of concluding that it is warranted because the statute at issue is a recidivist statute. Citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Commonwealth suggests it is a kind of constitutional imperative to require the proof of prior convictions during the guilt phase. Yet, the Commonwealth’s analysis conflates the rationale supporting those cases. The Apprendi line of cases upholds the sanctity of a defendant’s right to a trial by jury and the defendant’s due process right to require the Commonwealth to prove each element of the crime beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). To claim that Washington’s due process rights are protected, as in Apprendi and Blakely, is simply not tenable. Here, introducing Washington’s prior convictions during the guilt phase needlessly prejudiced Washington without advancing any legitimate interest of the State. Simply put, the Commonwealth, not Washington, will benefit from the introduction of the prior convictions. Pointlessly, in light of our system of bifurcated jury trials. That system was designed to eliminate the undue prejudice of putting before the jury at the guilt stage evidence of other *307crimes, which has the effect of stigmatizing a defendant and predisposing a jury to a finding of guilt.

Although the trial judge instructed the jury during the guilt phase that “[ejvidence that the defendant was previously convicted of prior offenses should be considered by you only for proof of the element of a prior conviction and not as proof that he committed the offense to which he is charged,” the trial judge also instructed the jury, in pertinent part, as follows:

The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

(1) That the defendant wounded or caused bodily injury by any means to Kathleen Monroe; and
(2) That such wounding or bodily injury was with intent to maim, disfigure, disable or kill Kathleen Monroe; and
(3) That the act was done with malice; and
(4) That the defendant has been previously convicted of two violent felonies.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty of maliciously wounding or causing bodily injury.

The first instruction cannot be reconciled with the latter finding instruction because the finding instruction tells the jury that the previous convictions are “elements of the crime,” i.e., if those previous convictions are proved they constitute proof that he committed the offense with which he is charged.

The normal presumption is that the jury will follow a curative instruction. Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 (1987). However, this presumption cannot apply when the curative instruction fails by its own terms to address the error.

United States v. Hall, 989 F.2d 711, 717 (4th Cir.1993).

Furthermore, the error in admitting the evidence at the guilt phase was so deliberate and so impressive that, despite *308the attempt at a curative instruction, the error likely influenced the jury. As the Supreme Court has held, “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). An appellate court cannot presume the jury followed a curative instruction when there “exist[s] the overwhelming probability of their inability to do so,” Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987), or when there “are deliberately spread before the jury ... incriminations devastating to the defendant,” Bruton, 391 U.S. at 136, 88 S.Ct. at 1628. In view of our bifurcated trial procedure, we are not free to ignore that legislatively mandated protection and needlessly accept the inevitable potential for prejudice.

For all of these reasons, I would hold that the statute, by its express terms, applies after the conviction. The absence of a constitutional due process prohibition to allowing prior convictions does not, in my mind, equate to a license to do so. Nothing in Code § 19.2-297.1 requires us to construct the statute in such a way to prejudice Washington, and countless other defendants, for no purpose except to give the Commonwealth the unfair advantage of presenting prior convictions to the jury as it assesses a defendant’s guilt or innocence. I dissent.

. In pertinent part, Code § 19.2-295.1 provides as follows:

In cases of trial by jury, upon a finding that the defendant is guilty of a felony ... a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury. At such proceeding, the Commonwealth shall present the defendant’s prior criminal convictions by certified, attested or exemplified copies of the record of conviction, including adult convictions and juvenile convictions and adjudications of delinquency. Prior convictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories.

. As Judge Humphreys aptly notes in Part II of his concurring opinion, Code § 19.2-297.1 is an habitual criminal punishment statute that is in derogation of the common law and must be strictly construed in favor of the accused. When we strictly construe penal statutes, we must give "the accused ... the benefit of any reasonable doubt about the construction of [the] statute,” Martin v. Commonwealth, 224 Va. 298, 300-01, 295 S.E.2d 890, 892 (1982), and we "must ... presume[] that the [General Assembly] acted with full knowledge of the strict interpretation that must be placed upon a statute of this nature,” Hannabass v. Ryan, 164 Va. 519, 525, 180 S.E. 416, 418 (1935).

. Prior to the enactment of Code § 19.2-295.1, the Supreme Court held in Brown v. Commonwealth, 226 Va. 56, 59, 307 S.E.2d 239, 241 (1983), that an accused was not denied due process when, during a trial that consolidated the issues of guilt and punishment, the jury was informed of previous convictions required for an enhanced punishment. In so holding, the Court noted that the trial judge cautioned the jury not to consider the previous convictions in determining guilt and, significantly, the Court noted the following:

Brown sought a bifurcated trial, but there is no statutory authorization for such a procedure in this case. Bifurcated trials have been provided by statute only in capital murder cases, Code § 19.2-264.3, and in certain traffic cases, Code § 46.1-347.2. There may be sound arguments for the extension of such trials to other offenses in Virginia, but these arguments should be addressed to the General Assembly.

Id. at 59, 307 S.E.2d at 240-41 (footnote omitted). Eleven years later, in 1994, the General Assembly provided for bifurcated trials in felony prosecutions such as this.