Opinion
Record No. 0051-93-3
Decided: January 24, 1995
FROM THE CIRCUIT COURT OF PULASKI COUNTY, A. Dow Owens, Judge
Victoria Huber Robison, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
(Linwood T. Wells, Jr., Assistant Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Coleman
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Rodell Cruise was convicted under Sec. 46.2-357 of the Code of Virginia for operating a motor vehicle after having been adjudicated an habitual offender. On appeal he argues: (1) that the trial court should have granted his motion to quash the indictment on the ground that his adjudication as an habitual offender was void because he was not appointed a guardian ad litem or, alternatively, represented by counsel at the time he was declared an habitual offender; and (2) that it was reversible error, during the jury's deliberation of guilt or innocence, to allow the jury to have an exhibit showing a portion of his driver's record, despite a cautionary instruction given by the trial court. We disagree and accordingly affirm the trial court's decision.
I.
The first issue raised by appellant is controlled by our decision in Pigg v. Commonwealth, ___ Va. App. ___, 441 S.E.2d 216 (1994) (en banc), a case presenting nearly the same facts and evidence as this case, in which we held that an alcoholic's adjudication of being an habitual offender is voidable, not void, if he is not appointed a guardian ad litem or is not represented by counsel at the proceeding. In order to avoid his adjudication, he must show that his disability, alcoholism, rendered him incapable of defending his interests. Pigg, ___ Va. App. at ___, 441 S.E.2d at 220-21.
At trial in this case, appellant offered testimony that he was a chronic alcoholic at the time of his habitual offender adjudication, arguing that the adjudication was invalid because he had not had a guardian ad litem or an attorney in the earlier habitual offender proceeding. Appellant, his doctor, and several family members testified that he had received periodic treatment for his substance abuse and that he likely was a chronic alcoholic. Appellant testified that he was present at the habitual offender adjudication and that he remembered the proceedings. No evidence was presented to show that the appellant had not comprehended everything the judge said to him or that he did not understand what would happen if he drove an automobile after that adjudication. He offered no evidence at any time during the proceeding-from the time he was served with notice of the hearing until entry of the order declaring him an habitual offender-that he was incapable of understanding the nature of the proceedings or of defending his interest.
Moreover, the evidence showed that appellant not only remembered being in court on the date he was adjudicated as an habitual offender, but remembered that he was not drinking because he knew better than to do so when going to court. This admitted rational decision by appellant at the time of his adjudication was evidence from which the trial judge could have inferred that appellant was rational enough at the time of his adjudication to understand and participate in the proceedings and to defend his interests.
Therefore, the trial judge did not err in finding that the adjudication should not be voided.
II.
The trial court allowed the jury to take into the jury room an exhibit, a copy of the order adjudicating the appellant an habitual offender which showed the predicate offenses making him an habitual offender. The judge gave a curative instruction to the jury to disregard the predicate offenses, two DUI and one driving during suspension convictions, in determining if the appellant was guilty of driving after having been declared an habitual offender. Assuming that the trial court erred in permitting the jury to view the whole exhibit, it was harmless error. Nothing in appellant's case refutes the presumption that the jury followed the cautionary instruction. See Lavinder v. Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910 (1991).
Appellant erroneously relies on LaForce v. Commonwealth, 14 Va. App. 588, 419 S.E.2d 261 (1992), for the proposition that cautionary instructions are not curative. In LaForce, we held a cautionary instruction was ineffective on narrow grounds in that the instruction "expressly permitted the jury to consider [evidence of his prior conviction] for the purpose of showing motive, intent or knowledge," which was error in itself. Id. at 590, 419 S.E.2d at 262. In this case, the cautionary instruction specifically admonished the jury not to consider the convictions in its determination of the guilt or innocence of appellant and added nothing else. Appellant's proposition is contrary to our holding in LaForce and other Virginia case law. See Pugh v. Commonwealth, 233 Va. 369, 355 S.E.2d 591 (1987).
Accordingly, the conviction is affirmed.
Affirmed.