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Shifflett v. Commonwealth

Supreme Court of Virginia

January 8, 2015

Galen Shifflett, Appellant,
v.
Commonwealth of Virginia, Appellee

SENIOR JUSTICE KOONTZ, with whom JUSTICE MILLETTE and JUSTICE POWELL join, dissenting.

OPINION

Page 907

Upon an appeal from a judgment rendered by the Court of Appeals of Virginia.

Upon an appeal from a judgment rendered by the Court of Appeals of Virginia. Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion that the Court of Appeals of Virginia did not err in ruling that any alleged error by the Circuit Court of Rockingham County was harmless.

Galen Shifflett (Shifflett) was charged in the Circuit Court of Rockingham County with aggravated sexual battery in violation of Code § 18.2-67.3. A jury found Shifflett guilty, and he was fined $15,000 and sentenced to five years' imprisonment.

Shifflett appealed to the Court of Appeals, claiming that the circuit court erred because it allowed the Commonwealth to cross-examine him about whether a prior felony conviction involved lying, cheating or stealing. The Court of Appeals decided in Shifflett v. Commonwealth, Record No. 1675-12-3 (Jan. 14, 2014) that even if the circuit court erred in allowing the testimony, such error was harmless because other corroborating facts bolstered the victim's account of the events compared to Shifflett's. Thus, the Court of Appeals affirmed the conviction.

At trial, the Commonwealth presented the testimony of the alleged victim, Shifflett's niece, that Shifflett fondled her breasts. Shifflett testified that the accusations against him were false.

Shifflett had previously been convicted of two felonies, one of which was subornation of perjury under Code § 18.2-436. Outside the presence of the jury, the Commonwealth argued that it should be allowed to impeach Shifflett on cross-examination by asking him about his subornation of perjury conviction, by name. The Commonwealth asserted that the subornation conviction should be deemed the same as a general perjury conviction. Shifflett contended [289 Va. 11] that the Commonwealth should not be allowed to mention the crime by name. After hearing argument, the circuit court did not permit the Commonwealth to mention the crime of subornation of perjury by name, but ruled that the Commonwealth could ask Shifflett if he had been convicted of a crime involving lying, cheating or stealing.

Thereafter, on cross-examination the Commonwealth asked Shifflett if he had been convicted of a felony or a misdemeanor involving moral turpitude. He answered that he had been convicted of two felonies. The Commonwealth then asked Shifflett if one of the felonies had involved lying, cheating or stealing, and Shifflett answered affirmatively. On appeal to this Court, Shifflett argues that the Court of Appeals erred in not reversing his conviction because the circuit court allowed the Commonwealth to impeach him by eliciting evidence that he had been convicted of a felony involving lying, cheating or stealing.

Virginia statutory provisions and common law allow the Commonwealth to impeach the credibility of a testifying criminal defendant by asking if he has been convicted of a felony or a misdemeanor involving moral turpitude. See, e.g., Code § 19.2-269; Lincoln v. Commonwealth, 217 Va. 370, 374, 228 S.E.2d 688, 691 (1976) (citing McLane v. Commonwealth, 202 Va. 197, 203, 116 S.E.2d 274, 279-80 (1960)); Va. S.Ct. R. 2:609(a). Further, if the conviction was for perjury, the name of the offense may be used to impeach the defendant. See, e.g., McAmis v. Commonwealth, 225 Va. 419, 422, 304 S.E.2d 2, 4 (1983); Va. S.Ct. R. 2:609(a)(iii).

Our Court has stated that admission of the fact of conviction of prior felonies or of

Page 908

misdemeanors involving lying, cheating or stealing is allowed because the probative value of this information in the jury's determination of a defendant's credibility as a witness outweighs the prejudicial effect of the information upon the jury's determination of guilt or innocence. Harmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971). Mention of the name or further details of the prior crimes is not allowed because of the potential prejudicial effect of such information on the jury's determination of the defendant's guilt or innocence. Id.

[289 Va. 12] Under the common law, felonies were considered crimes that reflected negatively upon the veracity of the defendant. Bell v. Commonwealth,167 Va. 526, 530-31, 189 S.E. 441, 443-44 (1937); see also Chrisman v. Commonwealth,3 Va.App. 89, 93-94, 348 S.E.2d 399, 401, 3 Va. Law Rep. 631 (1986) (holding that felonies were " infamous" crimes of " moral turpitude" that " cast doubt on the veracity of the convict" ). Thus, unlike with a misdemeanor, there is no requirement that it be stated that a felony involves moral turpitude in order for a conviction thereof to be a basis for impeachment of a witness's credibility. A felony conviction is probative of a witness's veracity regardless of the substance of the felony. Regarding a misdemeanor, ...


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