Justin Emmett English v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued by teleconference
JUSTIN EMMETT ENGLISH
MEMORANDUM OPINION * BY
v. Record No. 0452-02-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Bruce H. Kushner, Judge
Hugh E. Black, III (John W. Brown, P.C., on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted Justin Emmett English of possession of
marijuana, possession of cocaine, and possession of a controlled
substance while simultaneously possessing a firearm. English
contends the trial judge erred in ruling that English's character
was at issue and in instructing the jury that it could consider
character in determining English's guilt or innocence. We hold
that the judge erred but that the error was harmless.
I.
The evidence at trial proved that three detectives went to
English's residence to arrest him on warrants that charged him
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
with violation of probation, shooting into an occupied dwelling,
and possessing a firearm while having the status of a convicted
felon. When English, a juvenile, came to the door in his
underwear, the detectives arrested him. The detectives granted
English's request to obtain clothing and followed him to his
bedroom. While English was dressing, a detective saw remnants of
marijuana cigarettes in English's bedroom. He asked English if he
could search the room, but English refused the request. When two
detectives left to take English to jail and to obtain a search
warrant, one of the detectives remained in the residence.
At police headquarters, English waived his Miranda rights and
answered the detectives' questions. English admitted that
marijuana and cocaine were in his room but indicated an
acquaintance had left the cocaine. He also told the detectives
that he had in his closet a "loaded rifle for protection." During
the interrogation, English consented to a search of his bedroom.
When the detectives conveyed that consent to the detective who
remained in English's residence, he entered English's bedroom and
found marijuana, cocaine, a rifle, and ammunition.
At the conclusion of the Commonwealth's case-in-chief,
English's mother testified that someone gave the rifle to her for
protection and that she kept it in a closet in her bedroom. She
testified, however, that she was present when the detective
removed the rifle from English's closet.
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Over English's objection, the trial judge included in his
instructions to the jury the following:
The Court instructs the jury that you may
consider the character of the defendant when
proven by the evidence, whether good or bad,
along with the other facts and circumstances
in the case in determining his guilt or
innocence.
The jury convicted English of possession of marijuana,
possession of cocaine, and possession of a controlled substance
while possessing a firearm.
II.
"Usually, in legal parlance, where reference is made to the
character of the accused, 'character' is used as a synonym for
'reputation.'" Zirkle v. Commonwealth, 189 Va. 862, 871, 55
S.E.2d 24, 29 (1949). Thus, a well established rule is that
"[t]estimony to prove the . . . character of the defendant in a
criminal prosecution must relate and be confined to proof of the
opinion that the people in the community have of him." Byrdsong
v. Commonwealth, 2 Va. App. 400, 402, 345 S.E.2d 528, 529
(1986). Equally well established is the rule that "the
Commonwealth is not permitted to introduce any testimony of bad
reputation of the accused until the accused has put . . . his
character in issue." Zirkle, 189 Va. at 871, 55 S.E.2d at 29.
The Commonwealth concedes that neither English nor the
prosecutor introduced character evidence at trial and that the
trial judge erred in giving the jury the instruction concerning
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character. The Commonwealth contends, however, that the error
was harmless. We agree.
A non-constitutional error is harmless only "[w]hen it
plainly appears from the record and the evidence given at the
trial" that the error did not affect the jury's verdict. Code
§ 8.01-678. This standard applies "in criminal as well as civil
cases," Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728,
731 (2001), and requires us to determine the following:
"If, when all is said and done, the
conviction is sure that the error did not
influence the jury, or had but slight
effect, the verdict and the judgment should
stand . . . . But if one cannot say, with
fair assurance, after pondering all that
happened without stripping the erroneous
action from the whole, that the judgment was
not substantially swayed by the error, it is
impossible to conclude that substantial
rights were not affected. . . . If so, or
if one is left in grave doubt, the
conviction cannot stand."
Id. at 260, 546 S.E.2d at 732 (citation omitted).
Although the jury was instructed that it could consider
English's character "when proven by the evidence," no evidence
proved character in the manner that concept is used in our case
decisions. See Zirkle, 189 Va. at 871, 55 S.E.2d at 29.
Assuming, however, as English contends, that the jury would have
understood the instruction to allow it to consider testimony
about the criminal warrants outstanding against English as
evidence of his character, we conclude that this evidence would
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only have "had but slight effect" on the verdict. Clay, 262 Va.
at 260, 546 S.E.2d at 731.
The evidence proved that English fully confessed to
possessing the marijuana, possessing the cocaine, and
simultaneously possessing the cocaine and the firearm. In
addition, the detectives testified that all of the items were
found in English's bedroom. Although English's mother testified
that a friend had given her the firearm and that she had put it
in her closet, she acknowledged that she was present when the
detective found the firearm in English's closet. In view of
this evidence, we can say it plainly appears that "the verdict
and the judgment were not substantially affected" by the
granting of the instruction. Id. at 261, 546 S.E.2d at 732. We
hold, therefore, that the error was harmless.
Accordingly, we affirm the convictions.
Affirmed.
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