Lavinder v. Com.

• Citation: 12 Va.App. 1003,407 S.E.2d 910
• Decision Date: 30 July 1991
• Docket Number: No. 0303-89-3,0303-89-3
• Parties: Raymond Lewis LAVINDER, III v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 910

407 S.E.2d 910

12 Va.App. 1003

Raymond Lewis LAVINDER, III v. COMMONWEALTH of Virginia.

Record No. 0303-89-3.

Court of Appeals of Virginia.

July 30, 1991.

John Gregory, Jr., Salem, for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on briefs), for appellee.

Present: KOONTZ, C.J., and BARROW, BENTON, COLEMAN, DUFF, KEENAN, ^* MOON, COLE ^** and WILLIS, JJ.

ON REHEARING EN BANC

BARROW, Judge.

A rehearing en banc was granted in this appeal to consider what test applies in measuring whether a non-constitutional error is harmless. We conclude that, if it plainly appears from the facts and circumstances of a particular case that a non-constitutional error did not affect the verdict, the error is harmless.

In Virginia, non-constitutional error is harmless "[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached." Code § 8.01-678 (emphasis added). "[A] fair trial on the merits and substantial justice" are not achieved if an error at trial has affected the verdict. Consequently, under Code § 8.01-678, a criminal conviction must be reversed unless "it plainly appears from the record and the evidence given at the trial that" the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.

Constitutional error, on the other hand, is harmless only when the reviewing court is "able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The federal standard is not required, however, for a non-constitutional error. See Mu'Min v. Commonwealth, 239 Va. 433, 442 n. 4, 389 S.E.2d 886, 892 n. 4 (1990), aff'd 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). While the federal standard expressly adopts "beyond a reasonable doubt" as the reviewing court's required level of confidence, the statutory standard for non-constitutional error does not. ¹

Use of the "beyond a reasonable doubt" standard, while an appropriate measure of confidence in fact finding, is an unusual device to use in deciding questions of law. Like "preponderance of the evidence" and "clear and convincing evidence," "beyond a reasonable doubt" is a relative and subjective standard suitable for measuring the probability of the occurrence of a past event. But, in determining if an error is harmless, a reviewing court does not decide the probability of the occurrence of a past event, i.e. if, in fact, the defendant committed the crime charged. It determines, instead, whether, as a matter of law, this decision by the fact finder was affected by the error. If so, the error is not harmless; if not, the error is harmless.

In making this decision with respect to non-constitutional error, the level of confidence used by a reviewing court is not "beyond a reasonable doubt." It is, instead, whether "it plainly appears from the record and the evidence given at trial," a more absolute measure and one more suitable for application to questions of law.

This does not mean, however, that the burden of proof at trial is not a consideration in a harmless error analysis. Even though the burden of proof at trial is not part of the test for measuring whether non-constitutional error is harmless, a reviewing court must take into account the burden of proof applied at trial when evaluating the impact of an error upon a verdict. To the extent that the impact of an error on a verdict is affected by the burden of proof, in a criminal case, the reviewing court must consider that the fact finder was required to reach its verdict "beyond a reasonable doubt."

Code § 8.01-678 applies to both civil and criminal cases. By requiring a reviewing court to consider the applicable burden of proof at trial, the provisions of Code § 8.01-678 can be applied to both civil and criminal cases.

The test for harmless error should complement rather than subvert the burden of proof at trial. Saltzburg, The Harm of Harmless Error, 59 Va.L.Rev. 988, 989 (1973). A civil case having a burden of proof with a lower degree of certainty than that required in a criminal case generally will not be tested for harmless error with the higher degree of certainty required by the burden of proof for criminal cases. Similarly, a criminal case requiring a higher degree of certainty in the burden of proof should not be tested for harmless error with the lower degree of certainty required by the burden of proof in civil cases. See id.

In criminal cases, the requirement of proof beyond a reasonable doubt is a constitutional requirement of due process. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). Only by considering the burden of proof applied at trial when determining harmless error on appeal can this constitutional requirement be preserved.

In this case, in order to determine if it plainly appears that the error did not affect the verdict, we must review the record and the evidence and evaluate the effect the error may have had on how the finder of fact resolved the contested issues. The defendant was tried for robbery of a music store employee who was on his way to make a night deposit at a bank. The employee who was robbed and another employee who was with him at the time of the robbery testified that the defendant was the robber. A nearby storekeeper identified the defendant as the person whom she saw run past her when she heard cries from the employee who was robbed. A fourth person testified that he had seen the defendant in the vicinity at the time of the robbery. On the other hand, the defendant's mother, the mother's boyfriend, one of the defendant's friends, and the defendant all testified that at the time of the robbery the defendant was at his home.

During cross-examination, the defendant admitted that while he was a juvenile he had been found not innocent of two felonies. The trial court previously had ruled during a motion in limine, over the defendant's objection, that the prosecutor could ask the defendant on cross-examination whether he had been found not innocent of these offenses.

This was error, ² but not one of constitutional dimension. As described in the panel opinion which heard this appeal, the prosecution has no constitutional right to cross-examine a defendant, and, in this case, the prosecution's cross-examination was limited by a policy of preserving a juvenile offender's anonymity as expressed in Virginia's juvenile law.

In determining whether this error could have affected the verdict, we must first determine whether the trial court gave a curative instruction. If it gave a curative instruction to the jury, the jury is presumed to have followed "an explicit cautionary instruction promptly given" unless the record shows otherwise. LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984). If, however, the trial court did not give a curative instruction, the error is presumed to be prejudicial "unless it plainly appears that it could not have affected the result." ³ Caldwell v. Commonwealth, 221 Va. 291, 296, 269 S.E.2d 811, 814 (1980).

The use of presumptions for this purpose has been criticized because presumptions are "ill-suited for appellate purposes where the only valid presumption is that regularity in proceedings is so important that error may not be lightly disregarded." Saltzburg, supra at 1018. However, these presumptions stand only at the threshold of the harmless error analysis and constitute no more than an expression of the principal embodied in Code § 8.01-678. Restated, these presumptions mean only that at the beginning of the harmless error analysis, if the record reveals that the trial court promptly instructed the jury to disregard the effect of erroneously admitted evidence, the reviewing court may assume that the jury followed that instruction unless the record "suggests a manifest probability" that it did not. Boykins v. Commonwealth, 210 Va. 309, 313, 170 S.E.2d 771, 774 (1969). If, on the other hand, as in this case, there is no such instruction to rely upon, the reviewing court must consider the error prejudicial unless "it plainly appears from the record and the evidence" that the verdict was not affected by the error. Code § 8.01-678.

This presumption of prejudice, however, does not suggest the need for a perfect trial. "No trial is perfect, and error will at times creep in." Parsons v. Commonwealth, 154 Va. 832, 852, 152 S.E. 547, 554 (1930). "Every man is entitled to a fair trial and to nothing more, and so ... out of the imperative demands of common sense, has grown the doctrine of harmless error." Oliver v. Commonwealth, 151 Va. 533, 541, 145 S.E. 307, 309 (1928).

The effect of an error on a verdict varies widely "depending upon the circumstances of the case." Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978). Each case must, therefore, be analyzed individually to determine if an error has affected the verdict.

In this case, there was no instruction to the jury directing them to disregard the defendant's juvenile record. In fact, the trial court instructed the jury that it could consider the evidence "as affecting his credibility." Consequently, we begin our analysis by considering the error prejudicial unless it plainly appears from the record and the evidence that the verdict was not affected by the error.

The decisive issue presented by the evidence at trial was whether the defendant was the perpetrator of the crime. The victim and a person who was with the victim said that the defendant was the robber. The other witnesses placed the defendant at the vicinity of the crime. These witnesses did not...