Poole v. Com.

• Decision Date: 12 October 1970
• Parties: Wayne Edward POOLE v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 917

176 S.E.2d 917

211 Va. 262

Wayne Edward POOLE v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 12, 1970.

William A. Julias, Harrisonburg (Earman & Julias, Harrisonburg, on brief), for plaintiff in error.

C. Tabor Cronk, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

GORDON, Justice.

The question before us is whether Wayne Edward Poole's conviction of robbery should be reversed because of a volunteered instruction given by the trial judge to the jury.

Poole and one Michael Allen Kirkpatrick were arrested and charged with a robbery of a motel in Harrisonburg on May 20, 1968. See Kirkpatrick v. Commonwealth, Va., 176 S.E.2d 802. Poole's testimony as a defense witness at Kirkpatrick's trial was introduced in evidence and read to the jury at Poole's trial. In that testimony Poole exonerated Kirkpatrick and confessed that he alone had committed the robbery. Poole did not testify at his trial.

In his closing argument to the jury, Poole's counsel said:

'The Court has told you in one of its instructions that his (Poole's) failure to testify cannot be considered as prejudicial to his case, nor can it be taken as a circumstance by you in considering the amount of punishment that you will fix when you reach your verdict. ¹ Now I respectfully submit that when this man (Poole) was on the witness stand last week (during Kirkpatrick's trial), it was on the 13th, and he gave this statement, he was subject to all the cross examination of the prosecution, he was called as a defense witness in that case, he was subject to all the cross examination that the prosecution wanted to propound, yet I respectfully submit had he ever been convicted of a felony or a crime constituting petty larceny it would have been in the record to impeach any other testimony or show his credibility. And the answer to that, we have to assume that his record is clear, just like yours or mine. There are certain crimes that if you do commit them they are admissible, but we don't have that in this case.'

The Commonwealth's attorney did not object to this argument, and he did not refer to it in his closing argument. Immediately before the jury retired, the trial court volunteered the following instruction to the jury:

'Let me interpose this observation before the jury retires. I don't like to intervene here in the course of the trial of the case or interrupt argument of counsel during the trial of the case or suggest any Court disapproval of comments that have been made in the absence of objections being taken, and there was no objection taken to the comment just make by Mr. Julias (Poole's counsel). If I understood it correctly, at least, he invites the jury to draw the inference that because no evidence was introduced here showing this man involved in any other offenses that the fair inference is that he has never been in any trouble. Well, as a matter of law no evidence of other criminal offenses or other convictions would be admissible unless he had undertaken to vindicate himself and taken the stand himself and then he could have been impeached by showing--or an effort to impeach him or detract from his credibility--an effort could have been taken on behalf of the prosecution to show, or ask if he had ever been convicted of a felony, and without going into the details of it, that's the permissible question and answer for the record in the case. But under the circumstances of this trial that opportunity was not afforded the prosecutor and in the absence of taking of the witness stand by the accused himself, the prosecutor could not prejudice his defense by putting in proof of any other offenses had any existed, and I'm not even suggesting that other offenses had been committed, I'm merely pointing out that I don't think that Mr. Julias' invitation to draw the inference, that because there is no evidence of other offenses, that you should imply or infer that therefore this man has a lily white background. Whether he does or not I don't know, it's not before you and it's not for consideration. I'm merely suggesting that the invitation of Mr. Julias to infer that he has a good record, that invitation ought to be rejected because there is no evidence on which to sustain it.'

Poole's counsel moved for a mistrial because of the court's volunteered instruction, but the court overruled his motion. The jury found Poole guilty and fixed his punishment at twenty years confinement in the penitentiary. Poole prosecuted this appeal from the order sentencing him in accordance with the jury verdict.

Poole's counsel complains that the volunteered instruction improperly commented on Poole's failure to testify at his trial and permitted the jury to infer that Poole's character was bad. Counsel also makes two procedural complaints respecting the voluntariness and the timing of the instruction. He objects because the instruction was not asked for by the Commonwealth and the allegedly improper argument, which the instruction purported to correct, was not objected to. And he objects that the judge gave that instruction after the close of all oral argument and just before the jury retired, giving defense counsel no chance to argue the case in light of the instruction and unduly emphasizing the instruction as the last thing told the jury.

Counsel's statement that the jury should assume that Poole's record was clear, so that in considering his punishment the jury might infer that he was of good moral character before committing the crime for which he was being tried, was improper. There was no evidence that Poole had or had not been previously convicted of a crime, and there was no evidence that otherwise tended to show either good or bad moral character. 'Character only becomes an issue in the trial of a criminal case when made so by proper proof.' Mitchell v. Commonwealth, 140 Va. 572, 581, 125 S.E. 311, 313 (1924). Absent evidence about character, the jury is not warranted in presuming character either good or bad. Id. at 581--582, 125 S.E. at 313--314.

Evidence of a prior independent crime, though tending to show a defendant's bad moral character, is generally inadmissible. Roy v. Commonwealth, 191 Va. 722, 62 S.E.2d 902 (1951). But the prosecution may introduce evidence of a prior crime to attack a defendant's character if he has attempted to show his good character or has testified in his own behalf and opened the door to impeachment. 8 Wigmore Evidence § 2277 at 475 (1961). This was the essence of the trial judge's volunteered instruction to the jury, a correct statement of the law. ²

Our conclusion that the volunteered instruction correctly explained the law does not answer counsel's contention that the instruction...