Opinion
Record No. 1154-92-2
November 9, 1993
FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY JOHN R. SNODDY, JR., JUDGE.
William G. Wentz (Donald M. Rowe, P.C., on brief), for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Benton and Coleman.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Mickey Henry was convicted in a bench trial of unauthorized use of an automobile in violation of Code § 18.2-102. Henry contends that the trial judge erred by permitting the Commonwealth's attorney to ask on cross-examination about the nature and details of a prior felony conviction for unauthorized use and a separate felony charge for unauthorized use in order to show Henry's propensity to commit the charged offense of unauthorized use of an automobile. Because Henry failed to make a contemporaneous objection to the Commonwealth's attorney's question with sufficient specificity for the trial judge to have intelligently considered and ruled upon the issue, Henry has not preserved the issue for appeal. Rule 5A:18. Finding no good cause for defense counsel not specifically stating the grounds for his objection and finding it unnecessary to address the issue in order to avoid a miscarriage of justice, we decline to address the merits of the issue. Snurkowski v. Commonwealth, 2 Va. App. 532, 536, 348 S.E.2d 1, 3 (1986). Accordingly, based on Rule 5A:18, the judgment of the trial court is affirmed.
The Commonwealth prosecuted Henry for unauthorized use of a motor vehicle based on the theory that he obtained the temporary use of an automobile from a dealership by use of a fraudulent scheme that allowed him to take the vehicle under the false representation that he would be obtaining financing to purchase it. Henry then extended the time he used the vehicle by several days by providing the dealership with a false excuse for not returning it. At trial, the Commonwealth's attorney asked Henry on cross-examination if he had ever been convicted of a felony. Henry responded, "Not to my knowledge, no sir." The prosecutor then inquired whether Henry knew that a felony was an offense punishable by more than one year in the penitentiary. Henry answered, "Yes, sir." Then the following exchange occurred:
Q. Do you recall Nottoway County, back in December; four or five months ago?
A. Yes, sir.
Q. Felony, Unauthorized Use of Vehicle?
A. Yes, sir.
Q. Felony, Unauthorized Use of Vehicle. Same thing you did here.
A. I was found not guilty.
Q. Well, you got three (3) years, suspended, for your time, put on supervised probation.
A. I was found not guilty. . . .
Q. You were charged with the same thing down in Richmond; Unauthorized Use of Vehicle?
A. Not guilty.
Q. Not guilty. But you were charged with the same thing. It's the same identical little set-up you did with these people here in Appomattox, wasn't it? This is the third time around for you isn't it? The same identical situation, right?
A. No, because I made restitution.
Q. Because you made restitution?
At this point, defense counsel objected, stating, "Your Honor, I object to this. I think he can get in to impeach his credibility as a witness prior felony convictions or crimes of moral turpitude." Defense counsel did not object to the questioning on any other grounds. He asserts, however, that the Commonwealth's attorney and judge interrupted him at this point and he was unable to finish stating his objection to the effect that neither the facts underlying the prior felony conviction nor the nature of another charge for unauthorized use of a vehicle could be considered to prove that Henry had committed the charged offense or had a propensity to commit this crime. The record supports counsel's contention that he was interrupted by the Commonwealth's attorney and the trial judge. Nevertheless, without expressly ruling on defense counsel's objection, the trial judge stated, "If he denies it [the felony conviction] . . . he can impeach him that way." No further objection was made by defense counsel at that time or at the conclusion of the Commonwealth's case. The Commonwealth's attorney did not pursue the inquiry after counsel's objection, nor did he present any evidence concerning Henry's prior record of criminal convictions or charges.
Defense counsel's objection addressed only that the fact of a prior felony conviction or crime of moral turpitude could be used for impeachment. The objection did not mention defense counsel's concern with misusing the details of prior convictions or charges of similar offenses to prove that the accused committed the charged offense or had a propensity to do so. As a consequence of defense counsel's objection failing to raise this issue, the trial judge stated that an adverse party may impeach a witness by proving the fact of the witness having a prior felony conviction, and if the witness falsely denies the conviction, the adverse party can ask about the nature of the offense in order to prove that he lied and that he has, in fact, been convicted of a felony. Powell v. Commonwealth, 13 Va. App. 17, 24, 409 S.E.2d 622, 626-27 (1991).
After this ruling, the Commonwealth's attorney did not pursue the matter further. If defense counsel harbored any concern that the trial judge would erroneously consider as evidence the implications of the Commonwealth's attorney's questions, it was incumbent upon him to state the nature of his objection at the time or, because this was a bench trial, to make the judge aware of the specific nature of his objection that he had been unable to state due to interruption. He failed to make the objection known to the trial judge.
We will not consider the issue on appeal for the first time. Accordingly, the judgment of the trial court is affirmed.
Affirmed.