Gerald Lee Payne v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia
GERALD LEE PAYNE
MEMORANDUM OPINION * BY
v. Record No. 2073-99-2 JUDGE SAM W. COLEMAN III
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Arthur W. Sinclair, Judge Designate
Vanessa H. Watson, Assistant Public Defender,
(Office of the Public Defender, on brief),
for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Gerald Lee Payne was convicted in a jury trial of
distribution of cocaine. On appeal, Payne argues that the trial
court erred by admitting into evidence statements he made to the
arresting officer concerning his prior drug use. Payne contends
that the statements were inadmissible evidence of prior bad acts
because they were irrelevant to prove an element of the charged
offense. He argues that the Commonwealth failed to show a causal
relation or logical connection between his prior drug use and the
charged offense sufficient to permit introduction of the evidence.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
We agree. Accordingly, we reverse the conviction and remand the
case to the trial court.
BACKGROUND
Charlottesville Police Officer Paul Best was on routine foot
patrol at approximately 12:25 p.m. when he observed Payne engaged
in what Best believed to be a hand-to-hand drug transaction. Best
saw Payne and Wilbur Johnson standing in the road of a "known drug
area" looking at Johnson's right hand, which was palm-side up.
Best saw Payne place a small plastic bag containing an off-white
substance into Johnson's hand. Best did not see any money
exchange hands. Johnson and Payne briefly looked at the item
before discovering that Best was watching them. Payne then pushed
Johnson's hand into Johnson's stomach and walked away.
Best approached Johnson, told Johnson that he saw the
cocaine, and requested that Johnson give it to him. After Johnson
gave Best the plastic bag, Johnson was arrested, handcuffed, and
placed in a police vehicle. As Best was talking to Johnson, Best
observed Payne walking away but glancing back several times in
their direction. Best apprehended Payne and arrested and
handcuffed him. After the arrest, Payne told Best that "he
[Payne] didn't understand how he could be arrested for
[distributing] cocaine when Mr. Johnson didn't give him any money
for it." Payne also told Best that "he [Payne] had used crack
cocaine in the past, that he had used it the night before and that
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he had used it about three times during the month of October." At
trial, Officer Best was permitted to testify, over Payne's
objection, what Payne had told him when arrested about having used
cocaine in the past, having used it the night before and about
three times during the month of October, and about no money having
been exchanged for the cocaine.
Payne testified, on the other hand, to a different version of
what had occurred. He stated that he had seen Johnson on his
bicycle stopped in the street. When Payne approached, Johnson
showed him the plastic bag, which Johnson said he had found in the
street. Johnson handed Payne the bag and asked Payne if he
thought the contents "was real." Payne replied he did not know
and handed the bag back to Johnson. Payne denied having seen Best
watching him. Payne also denied asking Best how he could be
arrested for distributing cocaine when he did not receive any
money from Johnson, and Payne denied telling Best that he used
cocaine in the past.
The substance seized in the plastic bag was tested and
determined to be cocaine.
ANALYSIS
"[I]n a criminal prosecution, proof which shows or tends to
show that the accused is guilty of the commission of other
crimes and offenses at other times, even though they are of the
same nature as the one charged in the indictment, is incompetent
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and inadmissible for the purpose of showing the commission of
the particular crime charged." Kirkpatrick v. Commonwealth, 211
Va. 269, 272, 176 S.E.2d 802, 805 (1970). However, "[e]vidence
of 'other crimes' is relevant and admissible if it tends to
prove any element of the offense charged. Thus, evidence of
other crimes is allowed when it tends to prove motive, intent,
or knowledge of the defendant." Guill v. Commonwealth, 255 Va.
134, 138, 495 S.E.2d 489, 491 (1998) (citation omitted). "In
order for evidence that the accused has committed other crimes
to be admissible, it need only be relevant to prove a material
fact or issue, and its relevance must outweigh the prejudice
inherent in proving that an accused has committed other crimes."
Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229,
234, aff'd on reh'g en banc, 17 Va. App. 248, 436 S.E.2d 193(1993) (citation omitted). "'[T]he responsibility for balancing
. . . probative value and prejudice rests in the sound
discretion of the trial court,' and its decision 'will not be
disturbed on appeal in the absence of a clear abuse.'" Wilkins
v. Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 443
(1994) (en banc) (quoting Ferrell v. Commonwealth, 11 Va. App.
380, 390, 399 S.E.2d 614, 620 (1990)).
The Commonwealth argues that Payne's statement regarding his
prior drug use was admissible because it was relevant to prove
that Payne had knowledge of the nature and character of the
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substance he distributed, which was an element of the offense the
Commonwealth was required to prove. We disagree.
The Supreme Court has addressed the relevance and
admissibility of prior drug-related conduct to prove an element of
the charged offense. See Boyd v. Commonwealth, 213 Va. 52, 53,
189 S.E.2d 359, 359-60 (1972) (per curiam); Eccles v.
Commonwealth, 214 Va. 20, 22, 197 S.E.2d 332, 333 (1973) (per
curiam); Donahue v. Commonwealth, 225 Va. 145, 154-55, 300 S.E.2d
768, 773-74 (1983).
In Boyd, the defendant was charged with possession and
distribution of heroin after he sold two capsules of heroin to an
undercover police officer. At trial, the officer was permitted to
testify that a few days before the charged offense he observed
Boyd making two similar drug sales. The trial court instructed
the jury that the evidence of the prior offenses may not be
considered as evidence of the defendant's guilt of the charged
offense, but it may be considered as evidence "of whether the
prior offenses constituted part of a general scheme, of which the
crime charged is a part." The Supreme Court reversed the
defendant's conviction, holding that the evidence of the prior
sales was unrelated to the charged offense and the evidence of the
prior sales did not fall within an exception to the general rule
excluding prior crimes evidence. The Court concluded that because
the evidence that Boyd had committed other crimes was not
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relevant, the prejudicial effect of the evidence outweighed its
probative value.
In Eccles, the defendant was charged with selling marijuana.
The trial court admitted evidence of the defendant's having been
seen smoking marijuana on prior occasions in order to prove that
he was familiar with marijuana and knew "what the contents of
these bags might be or what the expedition was about." The
Supreme Court, relying on Boyd, held that evidence of the
defendant's prior drug use was inadmissible to prove the defendant
knew that the substance he possessed was marijuana. The fact that
Eccles had previously used marijuana and had knowledge of the
nature and character of marijuana was unrelated to the charged
offense and did not tend to prove that Eccles knew that the
substance in the bag was marijuana or that a sale of marijuana was
being made. The Court reversed the defendant's conviction and
remanded, stating "[s]ince we have no way of knowing the effect of
the court's admission of testimony as to defendant's prior
criminal acts of smoking marijuana had upon the minds of the jury,
we cannot say that the error was not prejudicial." Eccles, 214
Va. at 22-23, 197 S.E.2d at 333.
Similarly, in Donahue the defendant was charged with
possession with intent to distribute PCP after police officers
executed a search warrant at the residence she occupied with her
"husband" and found PCP in the residence. At trial, the court
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admitted evidence that on a prior occasion PCP had been seized
from her when she was arrested along with others who were seen
handling PCP in an automobile. The trial judge also admitted
evidence that when she was arrested for the prior possession of
PCP, she confessed to selling it. The court admitted evidence of
the prior possession to prove that she was aware of the presence
and nature of the PCP seized from her residence and knowingly
possessed it with the intent to distribute. In reversing the
conviction for erroneously admitting the other crimes evidence,
the Supreme Court held that the evidence of prior possession of
PCP was unrelated to the charged crime and did not tend to prove
that Donahue possessed PCP with the intent to distribute. See
Donahue, 225 Va. at 156, 300 S.E.2d at 774.
This case is controlled by the Supreme Court's decisions in
Boyd, Eccles, and Donahue. Evidence of the defendant's prior drug
use was not probative of whether he distributed cocaine to Johnson
on the occasion observed by Officer Best. The evidence in no way
substantiates the events observed by Officer Best. It has no
tendency to prove that Payne made the distribution. Proof that
Payne admitted using cocaine on prior recent occasions proves only
that he has a propensity to use cocaine and as such the evidence
is highly prejudicial, particularly when compared to any minimal
incidental value the evidence has in establishing that Payne may
be familiar with the nature of a particular drug. The evidence
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that Payne had a propensity to use and possess cocaine is highly
prejudicial in that it strongly suggests to the jury that Payne
probably committed the charged offense.
We reject the Commonwealth's argument that because the
prosecution is required to prove that a defendant knows the nature
and character of the substance he possessed, the Commonwealth is
entitled to prove knowledge by showing prior use and familiarity
with the same drug. If the Commonwealth were allowed to prove, as
an exception to the general rule prohibiting other crimes
evidence, that an accused knew the nature and character of the
substance he is charged with possessing because he possessed the
same substance on a prior occasion, the exception would swallow
the rule in drug cases and evidence of possession of the same drug
on other occasions would be admissible in every case. See Cooper
v. Commonwealth, 31 Va. App. 643, 648-49, 525 S.E.2d 72, 74-75
(2000) (en banc) (holding that evidence that defendant had sold
imitation crack cocaine two months before the charged offense was
"a separate act without logical or natural connection with
[defendant's] present charge of possession of imitation cocaine
with intent to distribute" and, thus, inadmissible).
Our Supreme Court expressly rejected a similar claim advanced
by the Commonwealth in Donahue in which the Commonwealth relied
upon the Fourth Circuit case of United States v. Samuel, 431 F.2d
610 (4th Cir. 1970). The Donahue decision rejected the holding in
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Samuel that evidence of an accused's prior offense to prove that
he had knowledge of the character and presence of a specific drug
was admissible in the prosecution's case-in-chief to prove "lack
of innocent action" by the defendant. By rejecting Samuel, our
Supreme Court has said that the Commonwealth may not prove in
chief that an accused has knowledge of the nature and character of
the drug possessed to refute a claim or defense of "innocent
action," which is essentially the claim advanced by Payne.
For the foregoing reasons, we hold that the trial court erred
by admitting the evidence that Payne used cocaine the night before
and three times during the month of October. We cannot conclude,
without usurping the role of the fact finder, that the trial
court's error in admitting the evidence was harmless. See
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc).
Accordingly, we reverse the conviction and remand the case to
the trial court for such further proceedings as the Commonwealth
may elect.
Reversed and remanded.
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