Beniah Abel Allen v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
BENIAH ABEL ALLEN
MEMORANDUM OPINION * BY
v. Record No. 1745-95-2 JUDGE JAMES W. BENTON, JR.
SEPTEMBER 3, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Christopher F. Cowan (Cowan & North, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief) for appellee.
A jury convicted Beniah Abel Allen of possession of cocaine
in violation of Code § 18.2-250. On this appeal, he contends
that the trial judge erred in allowing evidence of his heroin use
and permitting a detective to testify that his behavior was
consistent with cocaine use. He further contends that the
evidence did not prove beyond a reasonable doubt that he
possessed cocaine. Because the admission of evidence concerning
his addiction to heroin was irrelevant and prejudicial, we
reverse the conviction.
I.
Allen was indicted and tried for possession of cocaine.
During opening statements at trial, and over Allen's objection,
the prosecutor told the jury that Allen admitted injecting heroin
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
on the day of his arrest. The Commonwealth's evidence proved
that when Chesterfield County police officers executed a search
warrant at a residence, they discovered Faith Franklin, the
lessee of the residence, standing in the living room. Allen was
lying facedown on a bed in another room. During a search of the
residence, the police found in the living room closet a tin foil
packet containing .05 grams of cocaine.
After a detective read Miranda warnings to Franklin and
Allen, Allen talked with the detective. Allen said that he did
not live at the house and denied that any drugs were in the
house. Allen's speech was slurred, and he was unsteady on his
feet. He did not have narcotics on his person.
The detective next questioned Franklin. She admitted that
she used cocaine. During the questioning, Franklin removed from
the underpants that she was wearing a tube she used to smoke
crack cocaine. The police arrested Franklin three days later for
possession of cocaine. She pled guilty to possession of both the
cocaine residue in the tube and the cocaine in the closet.
After Franklin produced the tube the detective questioned
Allen again. He testified that Allen admitted having smoked
crack cocaine for several years but claimed that he now used
heroin and "that heroin was his addiction." The detective
further testified that Allen said "he shoots heroin often" and
then showed needle marks on the back of his hand. The detective
said that Allen also admitted buying cocaine earlier that day and
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said that he already had smoked it with Franklin.
The detective further testified that Allen's eyes appeared
bloodshot and watery, his speech was slurred, and his balance
unstable. He also testified that Allen's physical appearance and
demeanor were consistent with that of a person under the
influence of cocaine.
In Allen's defense, Franklin testified to purchasing cocaine
earlier that day, smoking all of it, and then hiding the "stem"
in her panties. She stated that she did not smoke cocaine with
Allen on the day of the search and that she last smoked cocaine
at 8 p.m., before Allen arrived. She testified that Allen, who
did not live at the house, arrived at her house five minutes
before the execution of the search warrant and went directly to
the bedroom. She also testified that she had never given Allen
any reason to believe that she smoked or hid cocaine in her
residence.
The jury found Allen guilty of possession of cocaine. The
trial judge imposed the jury's recommended sentence of eight
years.
II.
Allen contends that because the evidence of heroin use was
irrelevant to the question whether he possessed cocaine and was
highly prejudicial, the trial judge should have barred the
testimony. In response, the Commonwealth states that Allen is
not entitled to have his statement sanitized and that evidence of
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past heroin use is indeed relevant to the possession of cocaine.
"The general rule is well established that in 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 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).
To be admissible, evidence must relate and
be confined to matters in issue, and it must
tend to prove or disprove these matters or be
pertinent to them. It is fundamental that
evidence of collateral facts or those
incapable of affording any reasonable
presumption or inference on the matter in
issue because too remote or irrelevant cannot
be accepted in evidence. Such evidence tends
to divert the attention of the jurors to
immaterial matters. If it has to do with
other misconduct or other crimes committed by
accused, it not only diverts the attention of
the jurors, but may tend to prejudice them
towards accused.
Boggs v. Commonwealth, 199 Va. 478, 486, 100 S.E.2d 766, 772
(1957)(citation omitted). In particular, "[e]vidence of prior
drug-related conduct is irrelevant and inadmissible and does not
fall within one of the Kirkpatrick exceptions where there has
been no showing of an intimate relation or connection between the
prior conduct and an element of the crime charged." Wilson v.
Commonwealth, 16 Va. App. 213, 222, 429 S.E.2d 229, 234-35, aff'd
en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993).
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In an earlier case, this Court rejected the Commonwealth's
argument that when the accused makes an oral statement to the
police, the entire statement, including irrelevant matters, is
admissible as evidence. See Pierce v. Commonwealth, 2 Va. App.
383, 345 S.E.2d 1 (1986). We ruled that when "[t]he
objectionable portion of the statement can easily be separated
from the remainder of the admission without adverse effect," the
trial judge should admit "only that part relevant and material to
the issue." Id. at 391, 345 S.E.2d at 5.
Following Pierce this Court also ruled as follows:
Where evidence has little or no probative
value and has the potential for being very
prejudicial, such as showing unrelated
crimes, it is error for the trial court not
to redact the prejudicial evidence, unless
the evidence is inextricably connected to the
other evidence or to do so would mislead the
fact finder. Where the "objectionable
portion of the statement [could] easily be
separated from the remainder of the admission
without adverse effect," it is error for the
trial court not to do so, and if the
prejudice caused by admitting the evidence
outweighs its probative value, the error will
be reversible.
Ascher v. Commonwealth, 12 Va. App. 1105, 1119, 408 S.E.2d 906,
915 (1991), cert. denied, 506 U.S. 865 (1992)(citation omitted).
The trial judge could easily have barred any testimony
regarding Allen's heroin use. Allen first raised the issue of
the statement in a motion in limine. Without hearing from the
prosecutor concerning the relevance of the statement, the trial
judge ruled that "statements by the defendant are always
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admissible." Thus, during opening statement, the prosecutor
informed the jury of Allen's heroin use. Later, during the
Commonwealth's case-in-chief, the detective paraphrased Allen's
statements regarding heroin use.
The Commonwealth has not articulated a reason why the heroin
use was probative of whether Allen possessed cocaine. Allen's
heroin addiction and the needle marks on his arm did not tend to
prove whether he possessed the cocaine found in the residence.
Moreover, unlike Williams v. Commonwealth, 11 Va. App. 149, 396
S.E.2d 860 (1990), Allen's statement was not a verbatim recording
and the question of the statement's voluntariness was not at
issue. 11 Va. App. at 152, 396 S.E.2d at 862. Nothing in the
record in this case indicates that the "objectionable portion of
[Allen's] statement [could not have been] easily . . . separated
from the remainder of the admission without adverse effect."
Pierce, 2 Va. App. at 391, 345 S.E.2d at 5.
Allen's prior use of heroin was irrelevant. See Donahue v.
Commonwealth, 225 Va. 145, 156, 300 S.E.2d 768, 774 (1983).
Irrelevant evidence is inadmissible. Bunting v. Commonwealth,
208 Va. 309, 314, 157 S.E.2d 204, 208 (1967). Furthermore, the
evidence was highly prejudicial because it proved Allen to be an
admitted heroin addict and allowed the jury to improperly infer
his guilt because of his propensity to possess and use another
drug. See Donahue, 225 Va. at 156, 300 S.E.2d at 774.
Considering that the trial judge could easily have barred the
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evidence of heroin use and such evidence was irrelevant and
highly prejudicial, we hold that the trial judge erred in
admitting the evidence.
III.
"Only when trial error had no effect upon the outcome of the
trial can the error have caused no prejudice and be harmless."
Henshaw v. Commonwealth, 19 Va. App. 338, 347, 451 S.E.2d 415,
420 (1994). This error was not harmless. During the
prosecutor's opening statement and the detective's testimony, the
jury learned of Allen's heroin use and addiction. The evidence
not only branded Allen a heroin addict, but also could have been
the basis of an impermissible propensity inference. However,
Franklin testified that she did not smoke cocaine with Allen that
evening. She also testified that she alone last smoked from the
tube. If the jury chose to believe Franklin's testimony and did
not find Allen responsible for the cocaine in the closet, it
could have found that the evidence was not sufficient to find him
guilty of cocaine possession.
"'Since we have no way of knowing the effect the court's
admission of testimony as to defendant's prior criminal acts
. . . had upon the minds of the jury, we cannot say that the
error was not prejudicial.'" Donahue, 225 Va. at 156, 300 S.E.2d
at 774 (citation omitted). "The jury was clearly exposed to
improper, inflammatory and prejudicial evidence and suggestion
and we are unable to find that it 'plainly appears from the
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record and the evidence' that this error 'did not affect the
verdict.'" Gravely v. Commonwealth, 13 Va. App. 560, 564, 414
S.E.2d 190, 193 (1992)(citations omitted).
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IV.
Allen also asserts that the detective impermissibly
testified to an ultimate issue of fact. The ultimate issue of
fact was whether Allen possessed the cocaine. The detective
testified only that Allen's "demeanor . . . was consistent with
what [he had] observed in others who have been under the
influence of cocaine." That testimony was not an opinion on the
ultimate issue.
An accused's demeanor is not an element of Code § 18.2-250.
Furthermore, the detective never testified that Allen was
actually under the influence of cocaine. A difference exists
between an expert's opinion that a person is under the influence
of a drug or that a person's conduct is consistent with someone
under the influence. See Davis v. Commonwealth, 12 Va. App. 728,
406 S.E.2d 922 (1991)(expert's opinion that an amount of
marijuana was inconsistent with an intent to distribute did not
constitute an impermissible comment on an ultimate issue of
fact); Llamera v. Commonwealth, 243 Va. 262, 414 S.E.2d 597
(1992)(whether quantity of cocaine would suggest an intent to
distribute was an ultimate issue of fact). The testimony in this
case did not violate the rule prohibiting comment upon the
ultimate issue in fact.
We do not reach Allen's argument concerning the sufficiency
of the evidence because the admission of his statements regarding
his heroin use is reversible error.
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Reversed and remanded.
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