Opinion
Record No. 0887-92-2
September 14, 1993
FROM THE CIRCUIT COURT OF HALIFAX COUNTY KENNETH M. COVINGTON, JUDGE DESIGNATE.
Buddy A. Ward, Public Defender (Office of the Public Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
David Junior Barksdale appeals from his convictions of murder and felonious use of a firearm in the commission of the murder. He contends that the trial judge erred in overruling his counsel's objection to the prosecutor's use of Barksdale's prior felony convictions in the prosecutor's closing argument to the jury. We affirm the conviction.
Barksdale testified at his trial and admitted on direct examination that he previously had been convicted of four felonies. He also testified that on the night he shot the victim he carried the gun on his person "for protection." In addition, he admitted knowing that in Virginia felons could not lawfully possess a firearm.
Among the instructions that the trial judge gave the jury at the conclusion of the evidence was the following:
[Y]ou may consider proof of the witness' prior conviction of a felony 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.
In closing argument, the prosecutor stated that Barksdale's justification for shooting the victim was incredible. After reminding the jury of the instruction "that says that the jury is the sole judge of the facts and the credibility of the witnesses," the prosecutor recounted Barksdale's testimony that he did not intend to harm anyone. The prosecutor also summarized the testimony of several "credible people, unbiased people," who disputed Barksdale's testimony. As the argument continued, the following exchanges occurred:
[Prosecutor]: [Barksdale was] a man in a jealous rage who, no matter what happened, is not going to cool down. He came to Donald Ragsdale's house in a fit of anger. He had a gun with him and a big buck knife. The gun was loaded, the gun is carried in his waistband, not even in a holster, but in a waistband of his pants. This is a man who is a four-time convicted felon —
[Defense Counsel]: I'll object to the reference.
[Trial judge]: It's in the evidence.
[Prosecutor]: It is in the evidence.
[Defense Counsel]: It only goes to credibility.
[Prosecutor]: Well, Your Honor, he brought it out.
[Trial judge]: The [point] that [is] being argued, as I understand it right now, is credibility.
[Prosecutor]: He's a four-time convicted felon, he walks around with a gun in his pants. Do you honestly think that he's a peaceable law-abiding individual out on a night on the town who doesn't have any particular ax to grind? Absolutely not.
[Defense Counsel]: Judge, I'll have to object to that.
[Trial judge]: I think the argument is proper.
[Prosecutor]: Now, you know, you have to decide who's telling the truth. And I submit that the defendant is just simply trying to give you some kind of a justification of his behavior that he thinks might cause you to allow him to escape from the consequences of his actions.
Barksdale appeals from the trial judge's refusal to sustain his counsel's objections.
When a witness testifies, "the fact of [a prior] conviction may be shown in evidence to affect [the witness's] credit." Code § 19.2-269. "The statute permits the examination of a defendant as to any prior felony convictions . . . to attack the defendant's credibility as a witness." Harmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971). Thus, when the fact of a witness's prior felony conviction has been properly proved, the jury may consider it in determining whether and to what degree to believe the witness's testimony. Mullis v. Commonwealth, 3 Va. App. 564, 571, 351 S.E.2d 919, 923 (1987). Moreover, it is fundamental that a party is entitled to argue the evidence to the jury. Duncan v. Commonwealth, 2 Va. App. 717, 730, 347 S.E.2d 539, 546 (1986). Necessarily then, it follows that the fact of a defendant's prior felony conviction, which has been proved at trial, may be argued to the jury as a circumstance that it may consider in determining whether to believe the defendant's testimony. See Jackson v. Commonwealth, 193 Va. 664, 675, 70 S.E.2d 322, 329 (1952).
When Barksdale's counsel objected to the prosecutor's reference to Barksdale as a "four-time convicted felon," Barksdale's counsel argued that the evidence of Barksdale's convictions "only goes to credibility." In response to the objection the trial judge stated, "The [point] that [is] being argued, as I understand it right now, is credibility." Thus, the trial judge apparently agreed that the appropriate scope of the evidence was limited to Barksdale's credibility. The trial judge's comment also indicated, however, that the trial judge perceived the prosecutor's argument to be related to Barksdale's credibility.
Barksdale's counsel did not at that time elaborate on his concern. On appeal, Barksdale contends that the prosecutor impermissibly used the evidence of Barksdale's convictions to argue that Barksdale must have committed murder because he was a felon. Although the prosecutor's argument at the time of the objection was drawing a nexus between Barksdale's status as a felon and his possession of a gun, the trial judge clearly perceived that the thrust of the argument was to create a disbelief in the credibility of Barksdale's testimony that on the night of the incident, when Barksdale carried the gun, he had no "ax to grind" with the victim. Furthermore, the record clearly establishes that immediately following the exchanges among Barksdale's counsel, the judge, and the prosecutor, the prosecutor continued the argument by telling the jury that it had to decide whether to believe Barksdale's testimony or the testimony of the other witnesses who tended to contradict Barksdale's testimony. We cannot conclude that it is manifest from the record that the prosecutor's comments were not substantially directed toward the issue of Barksdale's credibility.
Furthermore, the Supreme Court of Virginia has stated that "errors assigned because of a prosecutor's improper comments or conduct during argument will not be considered on appeal unless the accused timely moves for a cautionary instruction or for a mistrial." Martinez v. Commonwealth, 241 Va. 557, 559 n. 2, 403 S.E.2d 358, 359 n. 2 (1991). See also Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990). Neither action was taken in this case. Accordingly, the conviction is affirmed.
Affirmed.