Dale Lee Pughsley v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Willis and Elder
Argued at Salem, Virginia
DALE LEE PUGHSLEY
OPINION BY
v. 	Record No. 1846-99-3 	JUDGE SAM W. COLEMAN III
OCTOBER 31, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Sharon K. Eimer (James J. Angel, on brief),
for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Dale Lee Pughsley was convicted in a jury trial of second
degree murder, use of a firearm during the commission of a felony,
and shooting into an occupied vehicle. 	On appeal, Pughsley
contends the trial court erred by permitting the Commonwealth to
introduce during the sentencing phase of the trial prejudicial
rebuttal evidence, consisting of unadjudicated criminal behavior
and other specific bad acts and institutional infractions while in
juvenile detention. 	He contends the Commonwealth's rebuttal
evidence should have been limited to rebutting the specific
character evidence to which his witnesses testified and limited to
the time period about which they testified. 	We disagree and
affirm the convictions.

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BACKGROUND
David Robertson, the victim, and Larry Clingempeel,
Robertson's friend who had been riding with him in Robertson's
car, encountered Pughsley and his friend, "Nugget," at a
convenience store where Robertson had stopped to purchase gas and
beer. 	Robertson and Pughsley were not strangers to one another,
allegedly having been involved in a prior drug transaction.
Pughsley and Nugget entered Robertson's vehicle, with Robertson
driving, Clingempeel in the front passenger's seat, Pughsley
sitting behind Robertson, and Nugget sitting behind Clingempeel.
Pughsley directed Robertson to drive to a specified location where
Pughsley and Nugget exited the vehicle and went into a nearby
house. 	After returning, Pughsley stood by the driver's side door,
while Nugget stood beside the passenger door. 	According to
Clingempeel, an argument or some disagreement over a drug deal
occurred and Pughsley shot Robertson in the left side of his neck,
killing him as he sat in his car.
The jury convicted Pughsley of second degree murder, use of a
firearm during the commission of a felony, and shooting into an
occupied vehicle. 	At the sentencing phase, the Commonwealth
introduced evidence of Pughsley's twelve prior juvenile
convictions.
In rebuttal and in mitigation of punishment, Pughsley
introduced testimony from his mother, father, sister, grandfather,

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and the mother of a friend. 	Pughsley's mother testified that when
Pughsley was five years old, she left him and his father and moved
to Maryland. 	Pughsley's mother also testified about her knowledge
of Pughsley’s prior convictions. 	Pughsley's grandfather testified
that Pughsley is "smart" and a "real fine person" and that he is
"sorry" about and "regretted" the offense. 	On cross-examination,
Pughsley's grandfather admitted he was unaware of many of
Pughsley's juvenile convictions. 	Pughsley's sister testified that
she had a "close" relationship with her brother. 	Cynthia Sales,
the mother of one of Pughsley's friends, testified that Pughsley
lived with her and her son for approximately one year. 	Sales
described Pughsley as a "sweet person, real respectable." 	Sales
testified that Pughsley feels "really bad" about the shooting and
that "[i]f he could change it all he would." 	Pughsley's father
testified that Pughsley was a "very intelligent and caring person"
and that the situation "really hurt [Pughsley] a lot."
In rebuttal, the Commonwealth introduced evidence to rebut
Pughsley's character evidence by showing the specific
circumstances surrounding several of the prior juvenile offenses
and by proving facts of unadjudicated criminal behavior and other
bad acts and institutional infractions while Pughsley was confined
in juvenile detention. 	First, the Commonwealth introduced,
without objection, testimony from two law enforcement officers
substantiating the circumstances surrounding Pughsley's previous

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convictions and testimony from Pughsley's probation officer
concerning Pughsley's criminal history and probation violations.
Next, over defendant's objection, the Commonwealth introduced
the testimony of Frank Currier, Director of the Lynchburg Juvenile
Detention Center, who testified about Pughsley's behavior on the
four occasions Pughsley was detained at the center. 	On each
occasion, Pughsley's behavior at the detention center was marked
by "intimidation of the staff and youth," "coercion," threats
toward the staff, disrespect of the staff and volunteers,
including name calling, using profanity, having a negative
attitude, and failing to follow directions. 	Currier testified
that on one occasion, Pughsley had threatened the staff and he had
to be physically restrained. 	Currier further testified that on
another occasion, Pughsley "had gotten out of control, started
kicking and throwing chairs."
The Commonwealth also introduced, over defendant's objection,
the testimony of Andre Parrish. 	Parrish testified that, on one
occasion, he, Pughsley, and three other people stopped at a
convenience store. 	While inside, Pughsley pulled out and
brandished a .25 caliber semiautomatic pistol, waving it in a
threatening manner in front of the cashier merely because she
"looked" at him. 	Parrish said they forcibly removed Pughsley from
the store.

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Pughsley concedes the evidence is sufficient to support the
convictions. 	He argues only that the trial court erred in
permitting the Commonwealth to introduce prejudicial rebuttal
evidence and evidence that went beyond and did not specifically
rebut his witnesses' character evidence.
ANALYSIS
Code § 19.2-295.1 provides that after a defendant is found
guilty of a non-capital felony, "a separate proceeding limited
to the ascertainment of punishment shall be held." 	At the
sentencing hearing, the Commonwealth "shall" present evidence of
the defendant's prior criminal convictions. 	"After the
Commonwealth has introduced such evidence of prior convictions,
or if no such evidence is introduced, the defendant may
introduce relevant, admissible evidence related to punishment.
Nothing in . . . [the statute] shall prevent the Commonwealth or
the defendant from introducing relevant, admissible evidence in
rebuttal." 	Code § 19.2-295.1. 	However, "this is not a one-way
street extending only in the defendant's direction. 	The statute
also permits the Commonwealth to introduce 'relevant, admissible
evidence in rebuttal' to that offered by the defendant."
Commonwealth v. Shifflett, 257 Va. 34, 43-44, 510 S.E.2d 232,
236 (1999).
On review, we will not disturb the trial court's ruling
regarding the admissibility of evidence absent a clear abuse of

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discretion. 	Id. at 44, 510 S.E.2d at 236. 	"Evidence which
'tends to cast any light upon the subject of the inquiry' is
relevant." 	Cash v. Commonwealth, 5 Va. App. 506, 510, 364
S.E.2d 769, 771 (1988) (quoting McNeir v. Greer-Hale Chinchilla
Ranch, 194 Va. 623, 629, 74 S.E.2d 165, 169 (1953)). 	Evidence
which tends to prove a material fact is relevant and admissible,
"'unless excluded by a specific rule or policy consideration.'"
Evans v. Commonwealth, 14 Va. App. 118, 122, 415 S.E.2d 851,
853-54 (1992) (quoting Cash, 5 Va. App. at 510, 364 S.E.2d at
771).
In the guilt phase of a trial, "[i]t is . . . firmly
established that '[t]he Commonwealth is not permitted to
introduce evidence of the [accused's] bad character unless the
accused has first offered evidence of his good character, thus
placing his character into issue.'" 	Irving v. Commonwealth, 15
Va. App. 178, 183, 422 S.E.2d 471, 475 (1992) (en banc) (quoting
Fields v. Commonwealth, 2 Va. App. 300, 305-06, 343 S.E.2d 379,
382 (1986)). 	A defendant may, however, place his character in
issue by testifying as to his character, see generally Smith v.
Commonwealth, 212 Va. 675, 187 S.E.2d 191 (1972) (per curiam),
or by introducing witnesses to testify as to his good character,
see Gravely v. Commonwealth, 13 Va. App. 560, 414 S.E.2d 190
(1992). 	Although, as a general rule, the Commonwealth may not
rebut character evidence by proving specific acts of misconduct,

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other than by cross-examining the defendant's character
witnesses as to their knowledge of those acts, see Land v.
Commonwealth, 211 Va. 223, 225-26, 176 S.E.2d 586, 588 (1970),
the Supreme Court has uniformly held that even in the guilt
phase of a trial where a defendant attempts to present evidence
regarding his good character or history, which may mislead the
fact finder, the Commonwealth is entitled to rebut the false
impression and misleading evidence, see Roy v. Commonwealth, 191
Va. 722, 726-28, 62 S.E.2d 902, 903-04 (1951); Locke v.
Commonwealth, 149 Va. 447, 451-52, 141 S.E. 118, 120 (1928);
Harris v. Commonwealth, 129 Va. 751, 753-54, 105 S.E. 541, 542
(1921); see also Lockhart v. Commonwealth, 251 Va. 184, 466
S.E.2d 740 (1996).
Code § 19.2-295.1, the provision governing the bifurcated
sentencing proceeding, goes beyond the common law rule of
evidence, which disallows proof of a defendant's specific bad
acts to rebut the defendant's character evidence. 	The Supreme
Court has made clear that Code § 19.2-295.1, which allows a
defendant to introduce relevant evidence of his "history and
background" in a sentencing procedure, also allows the
Commonwealth to introduce rebuttal evidence once the defendant
has undertaken to put his history and background in issue. 	See
Shifflett, 257 Va. at 43-44, 510 S.E.2d at 236.

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We hold that where a defendant puts on evidence that he has
been of good character or has a "history and background" of
being a good, law-abiding, caring, or remorseful person, the
Commonwealth may, subject to the trial court's sound discretion,
introduce evidence of specific acts in the defendant's "history
and background" which rebuts the defendant's contention or
proves that the defendant has a history or background of
criminal or bad acts or is not of good character. 	Prior to
adopting a bifurcated sentencing proceeding in non-capital
felony jury trials, only circuit judges could consider a
defendant's prior history or background through a pre-sentence
report. 	Now, however, with the bifurcated sentencing proceeding
for non-capital felony convictions, a jury is entitled to
consider a person's prior history and background, provided the
defendant elects to make it an issue. 	Once the defendant has
offered proof of his character, history, or background, the
Commonwealth is entitled to prove, subject to the sound
discretion of the trial judge, that the defendant has a history
of misconduct different from the picture he or she has painted.
Here, Pughsley presented evidence of his good character.
Several witnesses testified that Pughsley is a "sweet,"
"caring," "real fine," "very intelligent," and "respectable"
person, who is remorseful for the crimes he has committed.
Currier's testimony that Pughsley, while confined at the

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juvenile detention center, repeatedly intimidated and threatened
staff and other detainees was offered to rebut Pughsley's
evidence of his good character and pleasant disposition.
Currier also testified that Pughsley was not only disrespectful
of the staff, but he was, at times, violent. 	Further, Parrish's
testimony that Pughsley brandished a firearm in front of a store
clerk because she "looked" at him rebuts Pughsley's evidence
that he is a sweet and caring, non-threatening and non-violent
person. 	The Commonwealth was permitted to rebut Pughsley's
evidence of good character and to correct the false impression
Pughsley may have given the jury about his character.
Accordingly, we hold that the trial court did not abuse its
discretion by admitting the Commonwealth's rebuttal evidence.
As to Pughsley's claim that the trial court erred by
admitting the testimony of the law enforcement officers and
Pughsley's probation officer, that evidence was admitted without
objection. 	Accordingly, Pughsley is precluded from challenging
the admissibility of that testimony on appeal. 	See Rule 5A:18.
Affirmed.