Opinion
Record No. 1986-91-1
March 30, 1993
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON WALTER J. FORD, JUDGE
Stephen King Smith (James, Richardson, Griffin Blanchard, on brief), for appellant.
John H. McLees, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Willis, Elder and Bray
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
George Andrew Leslie (defendant) was convicted of robbery in a bench trial and sentenced to fifteen years imprisonment, eight years of which were suspended. He now appeals, contending that the trial court erroneously required him to acknowledge a previous conviction for a named felony. We agree that error occurred, but, for the reasons stated, affirm the conviction.
The parties are fully conversant with the record and this memorandum opinion recites only those facts necessary to a disposition of the issue before the Court.
The record discloses the following exchange during the Commonwealth's cross-examination of defendant:
Q. Have you ever been convicted of a felony?
A. No, sir.
Q. You never have?
A. No, sir.
Q. Ever live in California?
A. Yes, sir.
Q. You have lived in California. Do you recall in 1989 being convicted of —
Defendant's objection was overruled by the trial court and cross-examination continued:
Q. Sir, do you recall in 1989 in California being convicted of a felony sexual battery?
A. Yes, my girlfriend.
It is well established that, "[w]hen the Commonwealth attempts to impeach the credibility of the accused by showing prior felony convictions," "neither the nature of the felony . . . nor the details of the crime are admissible; only the fact of a conviction can be shown." Powell v. Commonwealth, 13 Va. App. 17, 20-21, 409 S.E.2d 622, 624-25 (1991). However, "when a defendant testifies untruthfully regarding . . . the number of his felony convictions, he opens the door to cross-examination for the purpose of attacking his credibility." Id. at 22, 409 S.E.2d at 625. Although the Commonwealth may then "show that he has purposely misrepresented the truth," id., it may not "use what appears to be a knowingly false answer as license to engage in cross-examination in order to purposely disclose prejudicial evidence." Id. at 25, 409 S.E.2d at 627.
Here, the Commonwealth failed to first pursue less prejudicial, "alternative avenues" available "to prove that [defendant] had testified untruthfully," and the trial court incorrectly required defendant to admit a prior conviction for a named felony. Cole v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1993); Powell, 13 Va. App. at 26, 409 S.E.2d at 628. This error, however, does not necessarily constitute grounds for reversal of defendant's conviction. See Cole, ___ Va. App. at ___, ___ S.E.2d at ___.
"'A judge, unlike a juror, is uniquely suited by training, experience and judicial discipline . . . to separate, during the mental process of adjudication, the admissible from the inadmissible, even though he has heard both.'" Id. (quotingEckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981)). The "trial judge is presumed to disregard prejudicial or inadmissible evidence" and "this presumption will control 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).
The record in this instance reveals no indication that the trial judge "considered [the] inadmissible evidence in adjudicating the merits of the case." Cole, ___ Va. App. at ___, ___ S.E.2d at ___; see Hall, 14 Va. App. at 901-02, 421 S.E.2d at 462. Thus, because defendant failed to "show a manifest probability" that his response to the Commonwealth's improper inquiry "prejudiced his ability to receive a fair trial," the presumption prevails and the error will be deemed harmless.Cole, ___ Va. App. at ___, ___ S.E.2d at ___; see Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).
Accordingly, the decision of the trial court is affirmed.
Affirmed.