Opinion
Record No. 0139-93-1
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK, Westbrook J. Parker, Judge
Affirmed.
Lori B. Galbraith, Senior Assistant Public Defender, for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgments of the trial court are affirmed because the trial judge did not commit reversible error in permitting the Commonwealth's attorney to inquire into the nature of defendant's prior convictions after defendant disclosed the nature of some of his past convictions.
Carter D. Beale was indicted on charges of robbery and malicious wounding. He was convicted in a bench trial of robbery and assault and battery.
During Beale's cross-examination, the following dialogue took place:
Q: And have you ever been convicted of any crimes involving moral turpitude, that would be crimes involving lying, cheating, stealing, larcenies, things like worthless checks?
A: I wrote two checks one time and they was over.
Q: Your testimony is you only had two convictions?
A: Worthless checks.
Q: You sure about that?
A: Yes.
Q: Mr. Beale, weren't you actually convicted of three worthless check charges and one petit larceny?
[Appellant's Counsel]: Your Honor, he just has to answer the numbers.
THE COURT: She's trying to impeach him now. He said two, she's got a right to ask him.
A: Well, it's been so long ago.
Q: Wasn't it actually four moral turpitude convictions, three worthless checks and petit larceny?
A: Petit larceny?
Q: You were never convicted of petit larceny?
A: No, not no petit larceny.
Q: Isn't this your conviction record, Mr. Beale?
A: What is that, a check?
Q: I'm asking you, Mr. Beale, is that or is that not your conviction?
A: I don't remember it.
"If the accused, in an effort to lessen the impacton the jury, opens up the scope of inquiry by disclosing the nature of his prior conviction, the Commonwealth may cross-examine him on any matters relevantly raised by that testimony, including the specific names and degrees of the offenses." Able v. Commonwealth, 16 Va. App. 542, 546, 431 S.E.2d 337, 339 (1993). See also Powell v. Commonwealth, 13 Va. App. 17, 22, 409 S.E.2d 622, 625 (1991).
Here, Beale disclosed the nature of his prior misdemeanor convictions on cross-examination. In reliance upon Able, Beale argues that because he had "disclosed" on direct examination the nature of the worthless check conviction, he does not open the door for the Commonwealth to introduce evidence concerning the nature or character of another conviction he may have either purposefully or mistakenly misrepresented without first exploring the other alternatives to prove that [he] had more than one felony conviction and testified untruthfully." Able, 16 Va. at 548, 337 S.E.2d at 340.
Assuming arguendo the cross-examination of Beale exceeded the limits of Able v. Commonwealth, supra, and Powell v. Commonwealth, supra, any error was harmless. This case was tried before a judge. "A judge, unlike a juror, is uniquely suited by training, experience and judicial discipline to disregard potentially prejudicial comments and to separate, during the mental process of adjudication, the admissible from the inadmissible, even though he has heard both." Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981). Thus, this Court presumes that a trial judge disregards prejudicial or inadmissible evidence, and we will not reverse in the absence of clear evidence to the contrary. Hall v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc). Affirmed.