                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and Senior Judge Annunziata
UNPUBLISHED


              Argued at Salem, Virginia


              GALEN CRAIG SHIFFLETT
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 1675-12-3                                  JUDGE ROSEMARIE ANNUNZIATA
                                                                                  JANUARY 14, 2014
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                                James V. Lane, Judge

                               W. Andrew Harding (W. Andrew Harding, PLC, on briefs), for
                               appellant.

                               Susan M. Harris, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on briefs), for appellee.


                     Galen Craig Shifflett (“appellant”) was convicted in a jury trial of aggravated sexual

              battery. On appeal, he asserts the trial court erred in allowing the Commonwealth’s attorney to

              cross-examine him about the nature of a prior felony conviction. Assuming, without deciding,

              that the trial court erred, we conclude any such error was harmless. Accordingly, we affirm

              appellant’s conviction.

                     Appellant testified in his own defense, thereby placing his credibility in issue. See

              McCarter v. Commonwealth, 38 Va. App. 502, 506, 566 S.E.2d 868, 869-70 (2002). While

              “‘some prejudice rises’ from [the] disclosure of a defendant’s felony conviction[,] . . . ‘its

              probative value as to [credibility] outweighs the prejudicial effect.’” Payne v. Carroll, 250 Va.

              336, 339, 461 S.E.2d 837, 838 (1995) (quoting Harmon v. Commonwealth, 212 Va. 442, 446,

              185 S.E.2d 48, 51 (1971)). However, “[it] has long been well-settled . . . that the character of a

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
witness for veracity cannot be impeached by proof of a prior conviction of crime, unless the

crime be a felony, or one which involved moral turpitude or the character of the witness for

veracity.” McLane v. Commonwealth, 202 Va. 197, 203, 116 S.E.2d 274, 279-80 (1960). To

impeach appellant’s credibility, the Commonwealth was entitled to ask whether he had been

previously convicted of a felony or a misdemeanor involving moral turpitude, i.e. lying,

cheating, or stealing. See Powell v. Commonwealth, 13 Va. App. 17, 23-24, 409 S.E.2d 622,

626 (1991). Proper cross-examination regarding appellant’s felony convictions was limited to

the number of the convictions and whether any of them were for perjury. Id.; Code § 19.2-269.

       Here, the Commonwealth’s attorney asked appellant if he had been convicted of “any

felonies or any misdemeanors involving moral turpitude,” and he answered, “Yes, two.” The

Commonwealth’s attorney followed up, “Okay, two felonies?” Appellant answered, “Two

felonies.” The prosecutor then asked if one of the felonies involved “lying, cheating, or

stealing.” Appellant responded, “Yes, sir.”

       Assuming, without deciding, that the trial court erred by allowing the Commonwealth’s

attorney to question appellant as to whether any of his felony convictions were for lying,

cheating, or stealing, see Payne, 250 Va. at 339, 461 S.E.2d at 839, we conclude such error was

harmless based upon the record before us.

       Any error in the admission of evidence regarding a defendant’s criminal record is “not

one of constitutional dimension.” See Lavinder v. Commonwealth, 12 Va. App. 1003, 1007, 407

S.E.2d 910, 912 (1991) (en banc) (non-constitutional harmless error standard applied to

erroneous admission of evidence that defendant had been found “not innocent” of two felonies

while a juvenile). Accordingly, we apply a non-constitutional harmless error standard to the

facts of this case. A non-constitutional error is harmless if

               “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
                                                -2-
               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.

Id. at 1006, 407 S.E.2d at 911 (quoting Code § 8.01-678).

       Here, the record reveals that the victim’s testimony was detailed and partially

corroborated. K.S. testified she was thirteen years old and at home alone when appellant, her

uncle, entered the house at approximately 11:30 a.m. on November 21, 2011. She was watching

a video when she saw a man walking toward her trailer. Believing the man was her older

brother, K.S. unlocked the front door and returned to her video. When appellant entered the

trailer, K.S. was not concerned, as he frequently visited, and she had spent time with his family.

       Appellant asked K.S. if her brother and her brother’s girlfriend were there, and K.S.

answered they were at the home of the girlfriend’s mother. Appellant then asked K.S. where her

cell phone was. She told him she had lost it.

       Appellant asked K.S. to turn around and close her eyes, adding she was not to tell anyone

about what he was going to do. K.S., who had had no prior problems with her uncle, complied.

Appellant stood behind K.S., put his hands beneath her arms, and asked if he could “play with

[her] titties.” As appellant began to fondle his niece’s breasts, K.S. screamed and tried to pull

away. Appellant only held her tighter and asked “if it felt good.” K.S. told him “no” and asked

him to stop touching her. Instead, appellant held on to her for approximately fifteen seconds as

K.S. struggled with him. When appellant finally released her, K.S. ran to the corner of the

hallway and “curled up in a ball.” She screamed at appellant to leave.

       Appellant told K.S. he was “sorry, that that’s what happens when you’re on drugs.” He

also told her not to tell her dad “because if [she] did then he ha[d] a shotgun and he w[ould] take

his life.” Appellant noted he had a double-barreled shotgun.




                                                -3-
          After K.S. told appellant she forgave him and promised she would not tell anyone, he left

the trailer. K.S. watched appellant walk down the driveway and enter the basement of his

mother’s house. She then ran to her room in search of her cell phone. When she could not find

it, she ran out the back door so appellant could not see her.

          Although she was asthmatic, K.S. ran through a field and over a barbed wire fence before

stopping at the home of the closest neighbor. When the neighbor was not home, she continued

running toward the auto repair shop where her father worked. K.S. estimated the repair shop was

a mile and a half from her trailer.

          When K.S. found her father, she told him appellant “tried to rape” her. Her father “got

really mad” and told her to get in his truck. He told K.S. they were going to confront appellant at

his mother’s house and that her father “was going to hurt him.” K.S. begged her father not to go

because of the threat appellant had made. K.S. called “911” from the truck because she was

afraid her father would “overreact.” To K.S.’s relief, her father’s truck ran out of gas at a post

office.

          Investigator Doug Miller responded to the post office and spoke with K.S. He noted she

was clearly upset and was “crying” and “shaking.” After speaking with K.S., Investigator Miller

and several patrol units went to Katherine Shifflett’s home to speak with appellant. Investigator

Miller walked around the house and knocked loudly on the doors and windows, but no one

responded. After the officers telephoned Mrs. Shifflett, she came home from work, entered the

house, and found appellant sleeping in his bedroom.

          The officers transported appellant to the sheriff’s department and interviewed him after

advising him of his rights. At the time he was taken into custody, appellant was wearing blue

jeans, a black t-shirt with the sleeves cut out and a red insignia on the front, and black tennis




                                                 -4-
shoes with a white Nike stripe. Appellant denied having left his mother’s house that day or

visiting K.S.

       At trial, K.S. described appellant’s clothing at the time of the assault. She stated he was

wearing a brown jacket with a gray hood, a black shirt “with a little bit of red on it,” blue jeans,

and “black shoes with white on them.”

       Steven Comer, with whom appellant lived at the time of trial, corroborated K.S.’s

testimony. He stated he was working at the repair shop when K.S. ran there on November 21,

2011. He noted he had worked with K.S.’s father for over two years, but had never seen K.S.

come to the shop. He described K.S. as crying and “in a panic state.” He corroborated K.S.’s

testimony that her father instructed K.S. to get in the truck and that K.S. “begged him not to go.”

Comer noted that her father’s demeanor was “normal” before K.S. arrived, but he became “very

angry” after speaking with K.S.

       Based on this record, we conclude appellant’s testimony that one of his felony

convictions involved lying, cheating, or stealing, made in response to the question challenged on

appeal, did not affect the jury’s verdict, that is, the verdict would have been the same even had

the question not been asked and the testimony had not been elicited and admitted. As the error

was harmless, we affirm appellant’s conviction.

                                                                                           Affirmed.




                                                -5-
Humphreys, J., concurring.

       I concur with the judgment of the majority to affirm Shifflett’s conviction; however, I

respectfully disagree with its analysis. I write separately to clarify two points. First, the majority

harmless error analysis is flawed because it fails to address how any prejudice flowing from a

potential error is harmless—namely that the limiting instruction received by the jury cures any

error. Second, I would hold that there is no error here, harmless or otherwise. In my view,

because the Commonwealth could have properly impeached Shifflett under Code § 19.2-269 by

asking him directly if he had been convicted of suborning perjury, the trial court did not err by

allowing the Commonwealth to ask Shifflett whether one of his prior felony convictions

involved lying, cheating, or stealing. The law permits the Commonwealth to inquire into the

nature of Shifflett’s conviction for suborning perjury to some degree.

                                                  I.

       The majority assumes, without deciding, that the trial court erred by allowing the

Commonwealth to question Shifflett as to whether any of his felony convictions were for lying,

cheating, or stealing. However, it concludes that “such error was harmless based upon the record

before us.” The majority’s only justification for any error being harmless is that the record

contains substantial evidence of Shifflett’s guilt and therefore the jury’s verdict would have been

the same even had the question never been asked. The majority’s analysis is flawed because

although it cites Payne v. Carroll, 250 Va. 336, 461 S.E.2d 837 (1995), it failed to apply a Payne

analysis to address how, if there was error, any risk of undue prejudice to the accused was cured,

rendering any error harmless.

       In Payne the Supreme Court found that the trial court did err in allowing improper

impeachment evidence of the witness’ prior convictions because “the danger of prejudice

flowing from the disclosure in issue outweighed its probative value.” Id. at 340, 461 S.E.2d at

                                                -6-
839 (by disclosing the fact that the civil defendant had been convicted of “a felony involving

fraud” the jury could conclude that the defendant was “not only unworthy of belief but also

morally undeserving of an award of damages”). The Court concluded that such an improper

disclosure “was not something that could amount to harmless error,” and further noted that the

jury’s limiting instruction addressed only the “fact” of conviction and not the “nature,” and was

therefore not curative. Id. at 340 n.2, 461 S.E.2d at 839 n.2.

       Where there is an improper disclosure of a prior felony conviction for impeachment

purposes, such error is generally not harmless error unless the record is clear that the jury

considered it only for the limited purposes of credibility. See id.; see, e.g., Newton v.

Commonwealth, 29 Va. App. 433, 448, 412 S.E.2d 846, 853 (1999) (concluding that the

Commonwealth’s method of impeaching the witness with evidence of prior convictions was

improper, but holding the error harmless because the trial court directed the jury to disregard that

evidence and the jury is presumed to have followed that curative instruction); cf. Cole v.

Commonwealth, 16 Va. App. 113, 116-17, 428 S.E.2d 303, 305-06 (1993) (finding the

admission of a prior conviction harmless error because the fact finder was a judge rather than a

jury, and judges, unlike juries, are presumed to disregard prejudicial or inadmissible comments

and to consider the evidence for the limited purpose of assessing credibility). However, it is well

established that if the trial court instructs the jury that they may only consider the defendant’s

criminal record for the purposes of credibility and not the issue of guilt or affixing punishment,

“ʻthey are presumed to follow such instructions.’” Lawson v. Commonwealth, 13 Va. App. 109,

112, 409 S.E.2d 466, 467 (1991) (quoting Lewis v. Commonwealth, 8 Va. App. 574, 580, 383

S.E.2d 736, 740 (1989)); see also Powell v. Commonwealth, 13 Va. App. 17, 27, 409 S.E.2d

622, 628 (1991) (“The trial court gave a cautionary instruction which told the jury that the

evidence of other offenses could only be considered for impeachment of the defendant and could

                                                -7-
not be considered as evidence of guilt or in assessing punishment. ‘Unless the record shows to

the contrary, it is presumed that the jury followed an explicit cautionary instruction.’” (internal

citations omitted))). Moreover, where the risk of prejudice is too great, “[t]he prejudicial effect

cannot be disregarded,” and the admission of the evidence is reversible error irrespective of a

cautionary instruction. Powell, 13 Va. App. at 27, 409 S.E.2d at 628; see, e.g., Lowe v.

Cunningham, 268 Va. 268, 274, 601 S.E.2d 628, 631 (2004).

         Therefore, notwithstanding that the majority assumes, without deciding, that the trial

court erred in allowing an erroneous disclosure of Shifflett’s prior felony convictions, in order to

be considered harmless error, that error can only be cured by demonstrating that the jury only

considered it for evaluating Shifflett’s credibility. See, e.g., Payne, 250 Va. at 340, 461 S.E.2d at

839. The majority’s conclusion that any “such error was harmless” is faulty because it focuses

only on the magnitude of the evidence of Shifflett’s guilt, and fails to address how the inquiry

into the nature of Shifflett’s felony convictions was considered by the jury for the limited

purpose of assessing his credibility as a witness, i.e., in light of the cautionary instruction to the

jury.1

         However, in my opinion this Court need not engage in a harmless error analysis at all—

because there was no error. For the reasons that follow, I conclude that the trial court did not err

in allowing the Commonwealth to ask whether one of Shifflett’s prior felony convictions

involved lying, cheating, or stealing.


         1
             In this case, Jury Instruction No. 6 stated:

                   You may consider proof of the defendant’s prior conviction of a
                   felony or crime of moral turpitude as affecting his credibility, but it
                   does not render him incompetent to testify nor shall you consider it
                   as evidence of his guilt of the offense for which he is on trial (nor
                   shall you consider it in fixing punishment if you do find him
                   guilty).

                                                    -8-
                                                 II.

       Before turning to the issue in this case, an examination of the development of the

common law governing the use of witnesses’ prior convictions for impeachment purposes is

instructive in understanding the purpose underlying the limitations on any disclosure of prior

convictions by a testifying defendant in a criminal case.

       Whenever a witness testifies under oath, that witness puts his or her credibility at issue.

Tatum v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 137 (1994). The

Commonwealth has traditionally permitted evidence of prior convictions of certain types of

crimes based on the theory that “persons who would commit those crimes are probably unworthy

of belief.” Chrisman v. Commonwealth, 3 Va. App. 89, 91, 348 S.E.2d 399, 400 (1986).

Historically, witnesses’ prior felony or perjury convictions affected more than merely their

credibility under oath—the law deemed them categorically incompetent to testify as a witness in

any capacity. See id. Until the Code of 1919 was adopted, “a person convicted of a felony was

not a competent witness unless such person had been pardoned or punished.” Burford v.

Commonwealth, 179 Va. 752, 762, 20 S.E.2d 509, 513 (1942). However, any person convicted

of perjury was prohibited from being a witness, “even though pardoned or punished.” Id.

(emphasis added). The common law treated perjury convictions more harshly than any other

felony convictions because “the law demands that judicial proceedings shall be fair and free from

fraud and that witnesses be encouraged to tell the truth and that they be punished when they do

not,” thus “[p]erjury strikes at the very heart of the administration of justice.” Slayton v.

Commonwealth, 185 Va. 371, 383, 38 S.E.2d 485, 491 (1946).

       Under the current statute, “[a] person convicted of a felony or perjury shall not be

incompetent to testify, but the fact of a conviction may be shown in evidence to affect his

credit.” Code § 19.2-269. The statute permits the examination of a criminal defendant as to his

                                                -9-
prior convictions when he places his credibility at issue by testifying in his own defense.

Harmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971); see also Code

§ 19.2-268 (“[T]he accused may be sworn and examined in his own behalf . . . and shall be

subject to cross-examination as any other witness.”). However, the “sole purpose of such inquiry

is to attack the defendant’s credibility as a witness,” not to prove “evidence of his guilt or

innocence of the crime charged.” Harmon, 212 Va. at 446, 185 S.E.2d at 51. Consequently, the

body of case law construing the scope of permissible impeachment under Code § 19.2-269

narrowly limits the admissibility of the accused’s prior convictions to evidence only relevant to

the defendant’s credibility under oath.

       Our Supreme Court held in Harmon that when impeaching the credibility of the accused

with prior convictions under Code § 19.2-269, “the fact of conviction of a felony may be shown

by the Commonwealth, but the name of the felony, other than perjury, and the details thereof

may not be shown.” Id. The Supreme Court expressed concern that if the jury were to know the

name of the felony conviction other than perjury, “it may mean more to them than the mere fact

that the defendant is a person of doubtful veracity.” Id.; see, e.g., Payne, 250 Va. at 340, 461

S.E.2d at 839 (finding that the danger of prejudice flowing from the disclosure of the nature of

the felony conviction “outweighed its probative value”). Later, in Sadoski v. Commonwealth,

219 Va. 1069, 1070, 254 S.E.2d 100, 101 (1979), the Supreme Court extended the rule in

Harmon by holding that the Commonwealth could additionally impeach the defendant by

showing the number of previous felony convictions, reasoning that “if evidence of one felony

conviction is important to a determination of credibility, evidence of more than one felony

conviction is even more important.” If a defendant testifies untruthfully, the Commonwealth

may further impeach the defendant’s credibility as a witness with details of the convictions;

however, only to the extent necessary to prove that the accused testified falsely. See, e.g., Able

                                                - 10 -
v. Commonwealth, 16 Va. App. 542, 547, 431 S.E.2d 330, 339 (1993) (concluding that it is only

the “fact of conviction” or the intentional misrepresentation of the “fact” that is relevant to

credibility). The rationale underlying the limitations on impeachment of the accused is to “avoid

and minimize” undue prejudice by allowing only evidence relating to the credibility of the

defendant as a sworn witness. Powell, 13 Va. App. at 22-23, 409 S.E.2d at 625-26.

       Whether a defendant’s prior felony conviction is for capital murder, grand larceny,

aggravated assault, etc., the rule governing impeachment by prior convictions makes no

distinction between types of felonies—with a single exception: felony convictions for perjury.

Because a prior conviction for perjury bears directly on a witness’ credibility under oath,

“[p]erjury constitutes uniquely probative evidence in the rules governing impeachment of

witnesses.” Lambert v. Commonwealth, 9 Va. App. 67, 71, 383 S.E.2d 752, 754 (1989). Thus,

while the Commonwealth may not impeach the accused by proving the name, nature, or details

of any other felony conviction, “if a prior conviction is for perjury, that offense may always be

named.” McAmis v. Commonwealth, 225 Va. 419, 422, 304 S.E.2d 2, 4 (1983) (emphasis

added). The rule governing impeachment provides this special exception for specifically naming

perjury “because of its crucial probative value upon the issue of credibility.” Lambert, 9

Va. App. at 71, 383 S.E.2d at 754. Unlike disclosing details of other prior felony convictions to

the jury, which carries great risk of undue prejudice to the accused, there is minimal risk that a

jury would consider evidence of a prior perjury conviction for any purpose other than

determining that “the defendant is a person of doubtful veracity.” Harmon, 212 Va. at 446, 185

S.E.2d at 51. Moreover, where the accused’s prior felony conviction is for perjury, the

disclosure’s probative value as to the defendant’s credibility outweighs any potentially

prejudicial effect. See id.; cf. Lambert, 9 Va. App. at 71, 383 S.E.2d at 754 (creating an

exception to the general rule prohibiting evidence of specific acts of untruthfulness that might

                                                - 11 -
improperly divert the jury’s attention, that would allow evidence of unadjudicated perjury to

impeach the witness because of its highly probative value on the witness’ credibility). Implicit in

the General Assembly’s deliberate choice to create a special exception for disclosing the nature

of perjury convictions—a tradition firmly rooted in the common law—is the concept that

evidence of a perjury conviction is principally relevant to the jury’s determination of the

defendant’s credibility under oath.

       While Code § 19.2-269 is silent as to the use of evidence of lesser convictions not

amounting to felony or perjury, the Supreme Court has interpreted the common law to only allow

evidence of convictions for misdemeanors involving moral turpitude to impeach the credibility

of the accused. See Chrisman, 3 Va. App. at 93, 348 S.E.2d at 401 (“There is no statutory

provision which permits an advocate to inquire as to whether the witness previously has been

convicted of a misdemeanor involving moral turpitude,” because “[i]t was not necessary for the

General Assembly to statutorily state that those convicted of misdemeanors would not be

incompetent as witnesses because the common law did not disqualify misdemeanants.”); Parr v.

Commonwealth, 198 Va. 721, 724, 96 S.E.2d 160, 163 (1957) (“[P]roof of conviction of a

misdemeanor involving moral turpitude is admissible to impeach the credibility of a witness, and

. . . conversely, proof of conviction of a misdemeanor not involving moral turpitude is

inadmissible for that purpose.”). The rationale behind limiting the type of misdemeanor is that

only misdemeanor crimes of moral turpitude are relevant to a witness’ veracity. See Newton, 29

Va. App. at 448, 412 S.E.2d at 853 (finding that distribution of marijuana is not a crime of moral

turpitude and therefore is not an appropriate method to impeach the accused’s credibility under

oath); see also Chrisman, 3 Va. App. at 100, 348 S.E.2d at 405 (finding that indecent exposure is

not a crime of moral turpitude because it does not relate to veracity). “Misdemeanor crimes of

moral turpitude are limited to those crimes involving lying, cheating[,] and stealing, including

                                               - 12 -
making a false statement and petit larceny.” Newton, 29 Va. App. at 448, 412 S.E.2d at 853.

Impeachment evidence is limited to misdemeanor crimes involving moral turpitude only for the

same reason that the felonies other than perjury cannot be named—the risk of undue prejudice to

the accused that the jury will consider it for determining guilt or innocence rather than

credibility. See Chrisman, 3 Va. App. at 98, 348 S.E.2d at 403.

       All the limitations on the admissibility of prior convictions to impeach an accused that

takes the stand as a witness on his own behalf discussed supra, are designed to decrease risk of

prejudice to the accused, while cutting straight to the matter at issue: the credibility of the

accused as a sworn witness. With that underlying policy consideration in mind, I now turn to the

case at hand.

                                                 III.

       The current scope of impeachment of a testifying criminal defendant with evidence of his

prior convictions is as follows: The Commonwealth is limited to proving (1) the fact that the

defendant has previously been convicted of a felony, but not the name or nature of the felony;

(2) the number of felony convictions; (3) whether any of those felony convictions were perjury;

and (4) whether the defendant has been convicted of a misdemeanor involving moral turpitude

(i.e., lying, cheating, or stealing). Hackney v. Commonwealth, 28 Va. App. 288, 292 n.1, 504

S.E.2d 385, 388 n.1 (1998) (citing Sadoski, 219 Va. at 1070-71, 254 S.E.2d at 101).2 If the


       2
          Virginia Rule of Evidence 2.609(A) describes the limitations on the admissibility of
evidence of a witness’ prior convictions for impeachment purposes when the witness is a party in
a civil case or a criminal defendant:

                         (i) The fact that a party in a civil case or an accused who
                testifies has previously been convicted of a felony, or a
                misdemeanor involving moral turpitude, and the number of such
                convictions may be elicited during examination of the party or
                accused.


                                                - 13 -
defendant’s response is untruthful, the Commonwealth may impeach the accused with details of

the convictions only to the extent necessary to prove that he testified falsely concerning the prior

convictions. Id. (citing Powell, 13 Va. App. at 21, 409 S.E.2d at 626-27).

       The first issue in this case is whether the Commonwealth could have directly asked

Shifflett if he had been convicted of suborning perjury. In other words, does the exception to the

general rule regarding prior felony convictions that allows the Commonwealth to impeach a

testifying defendant’s credibility by specifically naming “perjury” also encompass convictions

for suborning perjury in violation of Code § 18.2-436? The second issue, is whether the trial

court erred in allowing the Commonwealth to ask if one of Shifflett’s felony convictions

involved lying, cheating, or stealing.

       Shifflett raised the question before the trial court of whether the Commonwealth could

impeach him on the stand by asking if he had been convicted of perjury notwithstanding the fact

that his felony conviction was actually for suborning perjury in violation of Code § 18.2-436.

The Commonwealth argued that there is no distinction between perjury and suborning perjury

and that if Shifflett took the stand the Commonwealth would ask him “whether he’s been

convicted of any felony involving lying, cheating[,] or stealing,” and “his answer w[ould]

determine whether or not [the Commonwealth] h[as] the ability to present anything else.”

Shifflett argued that suborning perjury was not “deemed” perjury for the purposes of

impeachment under Code § 19.2-269 because they are separate offenses. Moreover, regardless



                       (ii) If a conviction raised under subdivision (a)(i) is denied,
               it may [be] proved by extrinsic evidence.

                       (iii) In any examination pursuant to this subdivision (a), the
               name or nature of any crime of which the party or accused was
               convicted, except for perjury, may not be shown, nor may the
               details of prior convictions be elicited, unless offered to rebut other
               evidence concerning prior convictions.

                                               - 14 -
of whether or not the Commonwealth could ask specifically about perjury, Shifflett argued that

the law only permitted the Commonwealth to ask a defendant if he has been convicted of a

misdemeanor involving lying, cheating, or stealing—not if he has been convicted of a felony

involving lying, cheating, or stealing. Noting Shifflett’s objections, the trial judge found that the

statute was broad enough to allow Shifflett’s impeachment with his conviction. However, the

trial court did not allow the Commonwealth to ask Shifflett directly if he had been convicted of

perjury. Instead the trial court ruled that it would only allow the Commonwealth “to ask the

question [if Shifflett was] ever convicted of lying, cheating or stealing,”3 and if Shifflett

answered affirmatively, then the Commonwealth did not “need to go into specifics” and probe

any further whether the conviction was specifically for perjury.

       Momentarily setting aside the question of whether the trial court erred in allowing the

question that was actually asked at trial about “lying, cheating, or stealing,” I believe the law to

be clear that the Commonwealth would not have been in error to ask Shifflett if he had any

felony convictions for “perjury” or “suborning perjury” since he was convicted of suborning

perjury. Both Code § 18.2-434 and Code § 18.2-436 appear in the Code in Title 18.2 under

Chapter 10, Article 1 entitled “Perjury.” Code § 18.2-436 criminalizes the subornation of

perjury—“procur[ing] or induc[ing] another to commit perjury or to give false testimony under

oath in violation of any provision of this article.” If a person is convicted of suborning perjury in

violation of Code § 18.2-436, “he shall be punished as prescribed in Code § 18.2-434.” The

definition and penalties for perjury are set forth in Code § 18.2-434. Consequently, a conviction

of suborning perjury under Code § 18.2-436 carries with it all of the consequences of a


       3
         Shifflett’s objection was two-fold: (1) he objected to the trial court’s interpretation of
whether the impeachment rule for perjury convictions included convictions for suborning
perjury, and (2) he argued that the rule allowing evidence of misdemeanor convictions involving
“lying, cheating, or stealing” was separate and distinct from the rule regarding evidence of felony
and perjury convictions.
                                               - 15 -
conviction for perjury under Code § 18.2-434. These consequences not only include a Class 5

felony conviction, but also lifelong restrictions on the offender’s trustworthiness: “such person

thereby shall be adjudged forever incapable of holding any office of honor, profit or trust under

the Constitution of Virginia, or of serving as a juror.” Code § 18.2-434.

        While the Code “treats perjury and subornation of perjury as separate offenses, it

prescribes the same punishment for both.” Mundy v. Commonwealth, 161 Va. 1049, 1061, 171

S.E. 691, 695 (1933). “From this we gather a legislative declaration that the suborner and the

perjurer are alike to be treated, tried and punished for their separate crimes, each to be separately

prosecuted for his independent criminal act.” Id. Moreover, the intention that the suborner and

the perjurer are to be treated and punished alike extends beyond merely felony classifications; it

also includes lifetime consequences affecting the offender’s integrity in the eyes of the law.

Implicit in the legislator’s proclamation that the suborner “shall be punished as prescribed in

Code § 18.2-434” is the intention that the suborner’s credibility shall forever be viewed in the

eyes of the law with the same skepticism as the perjurer.

        Pursuant to Code § 19.2-269, an accused’s convictions in violation of Code § 18.2-434

“may be shown in evidence to affect his credit.” Therefore, it follows that the legislature

intended that a suborning perjury conviction punishable under Code § 18.2-434 would similarly

“affect [the suborner’s] credit” under Code § 19.2-269. Because the suborner and the perjurer

are equally blameworthy “in the delivery of false testimony,” each should be similarly

susceptible to impeachment under Code § 19.2-269. The alternative conclusion would be

illogical: the law would hold the suborner as blameworthy and untrustworthy as the perjurer,

except as it relates to his credibility under oath.

        Shifflett urges this Court to make a distinction between an offense that is perjury and an

offense that is punishable as perjury—asserting that because suborning perjury is a separate and

                                                 - 16 -
distinct offense, it is therefore not a form a perjury. Shifflett argues that if the legislature

intended for suborning perjury to constitute perjury it could have phrased it as such. As an

example of when the General Assembly did just that, Shifflett points to the language in Code

§ 6.2-1121 which states that “[a]ny person knowingly making a false statement in such a report

shall be guilty of perjury, punishable as provided in [Code] § 18.2-434.” (Emphasis added.) See

also Code § 18.2-204 (“shall be guilty of perjury . . . and punished as provided by the statutes of

this Commonwealth in relation to the crime of perjury”); Code § 19.2-161 (“shall be guilty of

perjury, punishable as a Class 5 felony”). What Shifflett fails to note is that all of these

provisions separately articulate the punishment or consequences. If the legislature intended that

proclaiming that an offender “shall be guilty of perjury,” was sufficient to carry with it all the

penalties for perjury, it would not have needed to separately enumerate the punishments.

Therefore, it is the penalty that reveals what consequences are intended to flow from the

conviction. See, e.g., Pinn v. Commonwealth, 166 Va. 727, 733, 186 S.E. 169, 171 (1936)

(finding a conviction admissible for impeachment that is punishable as a felony). Shifflett is

correct that the law is clear that perjury and subornation of perjury are two separate offenses.

However the General Assembly has also created other crimes that “constitute perjury”—separate

offenses that require different burdens of proof than Code § 18.2-434. See, e.g., Scott v.

Commonwealth, 14 Va. App. 294, 296-97, 297 n.3, 416 S.E.2d 47, 48-49, 49 n.3 (finding that

Code § 18.2-435, which begins “[i]t shall likewise constitute perjury . . . ,” is a separate offense

that requires a different burden of proof than Code § 18.2-434, however both offenses carry

identical penalties (citing Williams v. Commonwealth, 8 Va. App. 336, 381 S.E.2d 361 (1989))).

Therefore, Shifflett’s argument that a conviction for suborning perjury is not subject to

impeachment under Code § 19.2-269 because it is a different offense than perjury is




                                                 - 17 -
unpersuasive. The law is clear: both perjury and suborning perjury are “alike to be treated, tried,

and punished.” Mundy, 161 Va. at 1061, 171 S.E. at 695.

       Interpreting the perjury exception to the general rule limiting impeachment with prior

felony convictions to include convictions for inducing another to commit perjury is consistent

with the underlying policy behind the rule and development of the common law. All the

limitations on impeachment by prior convictions of the accused balance the risk of prejudice to

the accused with the probative value as to the credibility of the accused as a sworn witness. See

Powell, 13 Va. App. at 22-23, 409 S.E.2d at 625-26 (“By disclosing the name and nature of the

prior felonies, the risk of prejudice is greatly increased beyond the situation where the

Commonwealth proves only the fact and number of prior convictions . . . [t]he jury is more

inclined not to limit consideration of such evidence to impeaching the accused’s evidence, but

also as tending to show that he is probably guilty of this offense, or is a person of bad

character.”). Because perjury is uniquely probative of a witness’ credibility, the common law

has historically treated perjury differently from all other crimes with respect to witness

credibility. See, e.g., Burford, 179 Va. at 762, 20 S.E.2d at 513. While this Court has found that

the risk of prejudice to the accused increases if the name and nature of his felony convictions are

disclosed to the jury, conversely, if the accused’s prior felony conviction is for perjury,

disclosure is permitted because it is the nature of the convictions that have probative value as to

the defendant’s credibility and therefore, as a matter of law, outweighs any prejudicial effect.

See Harmon, 212 Va. at 446, 185 S.E.2d at 51. The same rationale is true for felony convictions

for suborning perjury—the crime of inducing another to commit perjury. See Henson v.

Commonwealth, 165 Va. 821, 827, 183 S.E. 435, 437 (1936) (“Subornation of perjury, if it

exists, tends to draw out the well-springs of justice . . . .”). Like evidence of prior felony

convictions for perjury, there is minimal risk that a jury would consider evidence of a prior

                                                - 18 -
felony conviction for suborning perjury for any purpose other than determining that “the

defendant is a person of doubtful veracity.” Harmon, 212 Va. at 446, 185 S.E.2d at 51.

Moreover, this Court has previously interpreted evidentiary exceptions broadly where evidence

is highly probative of a witness’ credibility. See, e.g., Lambert, 9 Va. App. at 71, 383 S.E.2d at

745 (holding that, despite the general rule prohibiting evidence of specific acts of untruthfulness

that might improperly divert the jury’s attention, a witness’ credibility may be attacked on

cross-examination by inquiry into prior specific instances of unadjudicated, but admitted,

perjury, because such an “exception would provide the fact finder with highly probative evidence

regarding the witness’s credibility and at the same time would advance the policy concern of

fairness”).

       In summary, the rule allowing the Commonwealth to impeach a testifying defendant’s

credibility by specifically naming perjury includes convictions for suborning perjury in violation

of Code § 18.2-436. Such an interpretation is consistent with the policy underlying the rules and

the common law treatment of perjury for impeachment because both convictions bear equally on

the defendant’s veracity. Consequently, the Commonwealth could have inquired into Shifflett’s

prior conviction.

       In this case, however, the Commonwealth did not ask Shifflett if he had ever been

convicted of “perjury.” The Commonwealth first asked Shifflett if he had ever “been convicted

of any felonies or any misdemeanors involving moral turpitude.” Shifflett answered “yes.” The

Commonwealth then asked how many felony convictions, to which Shifflett responded, “[t]wo

felonies.” As discussed in length above, the Commonwealth’s questions were permissible to this

point—the Commonwealth can inquire about felony convictions without naming specific

felonies expect for perjury, the number of felony convictions, and misdemeanor convictions

involving lying, cheating, or stealing. See Hackney, 28 Va. App. at 292 n.1, 504 S.E.2d at 388

                                               - 19 -
n.1. The questionable error lies with the Commonwealth’s next question: “did one of those

crimes that you’ve been convicted of, the felonies, involve lying, cheating, or stealing?”

       Thus, the issue is whether the trial court erred by allowing the Commonwealth to inquire

into the nature of Shifflett’s prior felony conviction—whether the conviction involved lying,

cheating, or stealing. While the majority assumes, without deciding, that this inquiry was error,

in my view, it was within the scope of the current rule. My reasoning is as follows: (1) because,

as discussed supra, the Commonwealth could have properly asked Shifflett if he had been

convicted of perjury, and (2) because the rules contain a special exception that allows the

Commonwealth to disclose the nature of felony convictions for perjury or in this case suborning

perjury, (3) the trial court therefore did not err by allowing the Commonwealth to ask whether

his felony conviction involved lying, cheating, or stealing.

       Generally, the Commonwealth cannot ask whether the accused has been convicted of a

felony involving moral turpitude or otherwise disclose the nature of the felony conviction. In

Payne, the Supreme Court found that the trial court erred by allowing counsel to show the nature

of the witness’ prior felony conviction by asking whether the party-witness had even been

convicted of a “felony involving fraud.” Payne, 250 Va. at 338, 340, 461 S.E.2d at 838, 839.

However, this case is distinguishable from Payne because it is well settled that perjury

convictions, unlike all other felony convictions including fraud, are a unique exception to the

general rule prohibiting the disclosure of a defendant’s prior felony conviction. See, e.g., id. at

340, 461 S.E.2d at 839 (“Paraphrasing the rule in Harmon defining the permissible scope of

impeachment of an accused-witness in a criminal prosecution, we hold that, for purposes of

impeachment, the fact of a prior conviction of a felony may be shown against a party-witness in

a civil case, but that the name of the felony, other than perjury, and the details thereof may not be

shown.”); McAmis, 225 Va. at 422, 304 S.E.2d at 4 (“[I]f a prior conviction is for perjury, that

                                               - 20 -
offense may always be named.”); Sadoski, 219 Va. at 1071, 254 S.E.2d at 101(“[T]he

Commonwealth may ask a defendant who testifies in a criminal proceeding the number of times

he has been convicted of a felony, but, consistent with our ruling in Harmon, not the names of

the felonies, other than perjury, and not the nature or details thereof.”); Harmon, 212 Va. at 446,

185 S.E.2d at 51(“[T]he fact of conviction of a felony may be shown by the Commonwealth, but

the name of the felony, other than perjury, and the details thereof may not be shown.”); Able, 16

Va. App. at 546, 431 S.E.2d at 339 (“Unless the prior conviction was for perjury, neither the

nature of the felony nor the details of the conviction are admissible.”); Powell, 13 Va. App. at

20-21, 409 S.E.2d at 624-25 (“When the Commonwealth attempts to impeach the credibility of

the accused by showing prior felony convictions, in order to avoid undue prejudice to the

accused, neither the nature of the felony, other than perjury, nor the details of the crime are

admissible; only the fact of a conviction can be shown.”). Thus, the rule prohibiting the

Commonwealth from impeaching a defendant “by proving the nature or details of a prior

conviction, other than perjury,” Hackney, 28 Va. App. at 292 n.1, 504 S.E.2d at 388 n.1

(emphasis added), implies by negative inference that the Commonwealth is allowed to delve into

the nature of an accused’s prior conviction for perjury.

       Because the Commonwealth could properly inquire into the nature of Shifflett’s

“perjury” conviction, the only issue that remains is whether the question the Commonwealth

asked, “did one of those crimes that you’ve been convicted of, the felonies, involve lying,

cheating, or stealing,” does just that. Perjury, lying under oath, is not only a felony but is also a

crime of moral turpitude. Crimes of moral turpitude are crimes that involve lying, cheating, or

stealing. See Newton, 29 Va. App. at 448, 412 S.E.2d at 853. Consequently, asking Shifflett

whether one of his convictions involved lying, cheating, or stealing, was effectively asking about

the nature of Shifflett’s perjury conviction.

                                                - 21 -
       In sum, because the Commonwealth could have properly asked Shifflett if he had been

convicted of perjury, and because the rules contain an exception that allows the Commonwealth

to disclose the nature of felony convictions for perjury, the trial court did not err by allowing the

Commonwealth to ask whether his felony conviction involved lying, cheating, or stealing.

       It is on that basis that I would affirm the judgment of the trial court.




                                                - 22 -
