Opinion
Record No. 1756-93-4
Decided: January 31, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Marcus D. Williams, Judge
Clinton O. Middleton, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Thomas D. Bagwell, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Willis, Bray and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Rodney S. Coates (defendant) was convicted of robbery and use of a firearm in the commission of that offense. Defendant now appeals, complaining that the trial court erroneously overruled his motion for a mistrial based upon improper cross-examination on prior convictions. We disagree and affirm the trial court.
The parties are fully conversant with the record in this case, and we recite only those facts necessary to explain our holding.
Defendant testified at trial and denied the offenses. During the Commonwealth's cross-examination of him, the following exchange occurred:
Q: Sir, I want you to tell the ladies and gentlemen of the jury, please, how many felonies you've been convicted of.
A: I've been convicted of one felony. I have three felonies on my record. I have a parole violation and I have been convicted in '88, which I served four and a half years in the state penitentiary.
Q: That was for a larceny?
A: Yes, sir.
Q: And in fact —
[Defense Counsel]: Objection. You don't have to go into what they were.
[Commonwealth's Attorney]: Crimes of moral turpitude, lying, cheating or stealing, Your Honor.
THE COURT: I don't think you have to specifically — I sustain the objection.
BY [Commonwealth's Attorney]:
Q: Well, were you convicted of any crimes of moral turpitude, lying, cheating or stealing?
A: No, sir.
Q: You've never been convicted of any crimes of stealing?
A: I've been convicted of a crime.
Q: Of stealing?
A: Grand larceny.
Defense counsel again interrupted the cross-examination, objected to the crime specific inquiries, and moved for a mistrial.
Evidence of a prior conviction of a misdemeanor involving moral turpitude is admissible to impeach the credibility of a witness. . . . The Supreme Court of Virginia has recognized petit larceny as an offense involving moral turpitude, stating: "[F]ew crimes are baser than larceny or discredit more the credibility of a witness." Bell v. Commonwealth, 167 Va. 526, 539, 189 S.E.2d 441, 447 (1937). The defendant could properly be impeached by proving a conviction of petit larceny.
Dowell v. Commonwealth, 12 Va. App. 1145, 1147, 408 S.E.2d 263, 264 (1991) (citation omitted) (emphasis in original). If a defendant testifies untruthfully concerning prior criminal convictions, the door is opened "to cross-examination which is reasonably designed to elicit relevant evidence to show whether the defendant/witness knowingly testified falsely. The Commonwealth may not, however, resort to cross-examination which unnecessarily presents prejudicial information about the name or nature of prior convictions with little or no probative value." Powell v. Commonwealth, 13 Va. App. 17, 24, 409 S.E.2d 622, 626 (1991).
Assuming, without deciding, that the initial reference by the prosecutor to defendant's "larceny" conviction was improper, the record discloses that such evidence was otherwise introduced into the record during the later exchange. When defendant untruthfully answered, "No, sir," in response to the prosecutor's inquiry concerning prior crimes, the prosecutor asked if he had been convicted "of stealing." See generally Bibb v. Commonwealth, 201 Va. 799, 805, 113 S.E.2d 798, 802 (1960). This inquiry was "reasonably designed to elicit relevant evidence" of defendant's false testimony. Powell, 13 Va. App. at 24, 409 S.E.2d at 626. "[W]here the fact sought to be established by the admission of improper evidence is also overwhelmingly established by competent evidence, the error is harmless." Hall v. Commonwealth, 12 Va. App. 198, 216, 403 S.E.2d 362, 373 (1991) (citation omitted).
The jury was properly instructed to limit consideration of defendant's prior convictions to its affect on his credibility.
Accordingly, we affirm the conviction.
Affirmed.