COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
v. Record No. 0347-95-4 OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA APRIL 2, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Quinlan H. Hancock, Judge
Glenn S. Wainer (Wainer & Ritter, P.C., on
briefs), for appellant.
Robert B. Beasley, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Ricardo Berry appeals his conviction of distribution of
cocaine, having previously been convicted of a like offense.
Code ? 18.2-248. Berry argues that the trial court erred in
denying his motions in limine to suppress evidence of two prior
drug transactions and of his previous conviction of a like
offense. Because evidence of the two prior transactions was
probative of whether Berry was properly identified and evidence
of his prior conviction was necessary to prove his previous
conviction of a like offense, we hold that the trial court did
not err in admitting the evidence. We affirm.
On November 11, 1994, two police investigators went to a
local Seven-Eleven for a prearranged meeting with Ricardo Berry
and a third party who was acting as an “unwitting” go-between.
Investigator Savage greeted Berry, spoke with him briefly, and
– 2 –
asked whether he could sell him an “eight ball” of crack cocaine.
Berry stated that he was not “doing anything”, street lingo for
selling drugs, and to check with him later. Investigator Savage
was preparing to leave the scene in his vehicle when Berry called
to him to wait because he had the drugs. Berry got into the car,
and the transaction was completed. Investigator Turner observed
the interaction between Savage and Berry.
Both Investigator Savage and Investigator Turner had seen
Berry earlier. Savage had seen Berry about thirteen months
before when he went to Berry’s home with a third party in order
to purchase drugs. The third party told Savage to stay outside
and to give him the money. The third party went into the house
and came out with Berry. Savage and Berry conversed for about
Investigator Turner had seen Berry on November 5, six days
before the transaction in the instant case. He went to the same
Seven-Eleven with an unwitting third party, who had previously
sold drugs to Turner. Turner gave him an order for drugs that he
knew would be too large for the third party to fill, because
Turner wanted to learn the identity of the third party’s
supplier. When they arrived at the Seven-Eleven, the third party
paged his supplier, Berry, who walked up from his nearby
residence. Berry went into the Seven-Eleven, the third party
followed him with the money, and then he and Berry walked out of
the store. The third party gave the cocaine to Turner.
– 3 –
I. Prior Transactions
The trial judge permitted the officers to testify concerning
their prior meetings with Berry, on the ground that identity was
at issue in the case. Berry’s position throughout the trial was
that he was at a nightclub in the District of Columbia on the
night in question and was being misidentified. For the incident
with Savage, the defense raised the issue of identity by asking
Savage whether the preliminary hearing was the first time he had
Generally, evidence that shows or tends to show that the
accused committed other crimes is not admissible for the purpose
of proving that the accused committed the crime charged.
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970). However, evidence of prior crimes may be admissible
if it tends to prove any relevant fact of the offense charged.
Black v. Commonwealth, 20 Va. App. 186, 192, 455 S.E.2d 755, 758
(1995). One such fact is the identity of the accused. Where the
defendant has questioned the accuracy of a witness’
identification, testimony involving prior occasions where the
witness has had occasion to become familiar with the defendant’s
appearance, even though it be during the commission of another
crime, supports the identification and is admissible provided
that its probative value outweighs the prejudice to the
defendant. Black, 20 Va. App. at 192-93, 455 S.E.2d at 758;
Lewis v. Commonwealth, 8 Va. App. 574, 579, 383 S.E.2d 736, 739
(1989) (en banc).
– 4 –
The accuracy of the officers’ identification of Berry was
questioned throughout the trial, from the opening statement
through Berry’s own testimony and that of his alibi witnesses.
The identification issue was also raised on cross-examination of
Savage. The officers’ testimony concerning their prior contacts
with Berry was highly relevant to prove that Berry was the
individual who sold drugs to Savage on November 11.
The decision on whether the probative value of the evidence
of other crimes outweighs any prejudice to the defendant is left
largely within the sound discretion of the trial judge, and is
reviewed only for abuse of discretion. Lewis, 8 Va. App. at 579,
383 S.E.2d at 740. The officers’ testimony concerning their
prior contacts with Berry was highly probative on the issue of
identity. Identity was the key issue in the trial. In these
circumstances, we find that the trial court did not abuse its
discretion in allowing the testimony.
II. Prior Conviction
The trial court allowed Berry’s prior conviction for a like
offense to be placed into evidence during the guilt phase of the
trial. Although, as discussed above, evidence of other crimes is
inadmissible if relevant only to show a probability of guilt or a
propensity for criminal conduct, evidence of other crimes “is
properly received if it is relevant and probative of an issue on
trial, such as an element of the offense charged or the required
predicate for enhanced punishment.” Pittman v. Commonwealth, 17
Va. App. 33, 35, 434 S.E.2d 694, 695 (1993). Conviction of a
– 5 –
prior like offense is an element of the charge as it was set
forth in the indictment, and is also a necessary predicate to an
enhanced penalty pursuant to Code ? 18.2-248.
Berry seeks to distinguish Pittman on the ground that there
now exists a bifurcated procedure for felony trials, with the
sentencing phase conducted after the guilt phase. Code
? 19.2-295.1. However, in Farmer v. Commonwealth, 10 Va. App.
175, 390 S.E.2d 775 (1990), aff’d on reh’g, 12 Va. App. 337, 404
S.E.2d 371 (1991) (en banc), the Court upheld introduction of
evidence of prior DUI convictions in the guilt phase of a
bifurcated trial on charges of DUI as a third or subsequent
offense. Farmer, 10 Va. App. at 179-80, 390 S.E.2d at 776-77.
Under the rationale of Farmer, evidence of Berry’s previous
conviction for distribution was admissible in the guilt phase of
Berry cites Able v. Commonwealth, 16 Va. App. 542, 431
S.E.2d 337 (1993), which contains language suggesting that proof
of the prior conviction may not be an element of the offense of
distribution of cocaine after having been previously convicted of
a like offense. We find that language to be dictum unnecessary
to the holding in Able and in conflict with the rationale of
Accordingly, we hold that the evidence was properly
– 6 –
III. Cautionary Instruction
Berry argues that the court’s failure to give a cautionary
instruction on the evidence of prior transactions constitutes
reversible error.1 Berry is precluded under Rule 5A:18 from
raising this issue because he failed to request a cautionary
instruction at trial. The failure to request a cautionary
instruction bars consideration of the issue on appeal. See
Martinez v. Commonwealth, 241 Va. 557, 559 n.2, 403 S.E.2d 358,
359 n.2 (1991); Morris v. Commonwealth, 14 Va. App. 283, 286-87,
416 S.E.2d 462, 464 (1992) (en banc). This bar remains even
where, as here, an objection to the testimony is made and
overruled by the trial court. Morris, 14 Va. App. at 287, 416
S.E.2d at 464.
For the foregoing reasons, the judgment of the trial court
1 Berry also argues that the jury should have been instructed
that Investigator Turner “redacted his testimony [after the
defense objection] regarding having bought drugs directly from the
defendant.” This claim has no support in the record, as Turner’s
testimony before and after the defense objection was consistent.