Opinion
Record No. 0022-92-4
November 16, 1993
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY THOMAS R. MONROE, JUDGE.
Robert W. Gookin for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
William T. Proctor (appellant) appeals his convictions of robbery and malicious wounding in violation of Code §§ 18.2-58 and 18.2-51. On appeal, he asserts that the trial court erred in admitting evidence of a prior conviction when he had not yet been sentenced for that offense. Because we conclude appellant waived any objection to this evidence, we affirm the conviction.
As the parties are familiar with the facts, we restate only those necessary to explain our decision. Appellant was convicted as a principal in the second degree of a malicious wounding and robbery which occurred on April 24, 1991. In an earlier jury trial, he had been found guilty of another felony connected with the same robbery, but had not yet been sentenced by the court. Before trial on the robbery and malicious wounding charges, appellant moved in limine to exclude any evidence of his earlier conviction on the basis that it was not a final conviction for impeachment purposes. The trial court ruled that although sentence had been imposed, the conviction could be used to impeach appellant. The Commonwealth presented no evidence on this issue in its case in chief. In light of the trial judge's ruling, defense counsel chose for tactical reasons to ask appellant on direct examination about the prior offense.
In Virginia, the finding of guilt by a jury, without more, does not constitute a conviction for the purposes of impeaching a witness. Dowell v. Commonwealth, 12 Va. App. 1145, 1149, 408 S.E.2d 263, 265 (1991), aff'd en banc, 14 Va. App. 58, 414 S.E.2d 440 (1992). Appellant was found guilty by a jury in the previous trial, but had not yet been sentenced and no final order had been entered. The trial court's ruling authorizing use of the earlier conviction for impeachment purposes was clearly erroneous.
Appellant, however, waived his objection to the trial court's ruling by introducing the evidence of the prior conviction himself. His intent may have been to lessen the prejudicial impact of the prior conviction, but he created his own error and, under these circumstances, cannot now complain. "[W]here an accused unsuccessfully objects to evidence which he considers improper and then on his own behalf introduces evidence of the same character, he thereby waives his objection, and we cannot reverse for the alleged error." Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970); see also Commonwealth v. Kilgore, ___ Va. App. ___, ___, 426 S.E.2d 837, 841 (1993) ("appellate courts in this state will not permit an appellant to use as a ground for reversal the trial court error that the appellant invited").
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.