Kenneth David Newton v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
KENNETH DAVID NEWTON
MEMORANDUM OPINION * BY
v. Record No. 2009-99-3 JUDGE ROBERT P. FRANK
AUGUST 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LEE COUNTY
William C. Fugate, Judge
Susan D. Oglebay for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kenneth David Newton (appellant) was convicted of two counts
of distribution of cocaine in violation of Code § 18.2-248(C). On
appeal, he contends the trial court erred in permitting the
Commonwealth to enumerate his previous drug convictions during
cross-examination. We agree, and, therefore, reverse and remand
for a new trial.
I. BACKGROUND
Appellant was tried for two counts of drug distribution
before a jury. The paid police informant, Ronnie Hale, who
conducted the drug buys for which appellant was being tried,
testified at appellant's trial. Hale had numerous prior
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
convictions and a number of pending charges, including perjury and
arson.
Hale made his first buy from appellant on June 13, 1995. He
telephoned appellant and arranged the drug purchase. Before the
controlled buy occurred, the police searched Hale's person and his
vehicle. He was given $270 to purchase the drugs.
The officer who searched Hale stated, "He was patted all the
way down, fingers ran through his hair, his shorts were physically
patted down by myself as well as pulled out and looked in by
myself." The car was "searched behind the seat, the front seat,
all moving parts, and then the passenger area." A tape case
inside the vehicle also was searched, and the officer did a
"physical view search of the bed and fender wells."
Police observed appellant open Hale's vehicle door, but they
were not able to see the actual exchange of drugs for money.
After the brief exchange, appellant drove away. The search of
Hale after the exchange yielded cocaine and no money. The tape
recorder placed on Hale did not operate properly. The police also
searched Hale's vehicle and did not find any money.
Hale made the second buy from appellant on June 16, 1995.
The police gave Hale $200 to purchase the drugs. Again, the
police searched Hale's person and vehicle before the buy. Then,
police saw appellant approach Hale's car and a brief encounter
occurred. Appellant sold Hale additional cocaine. Hale and the
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vehicle were searched after the sale, and no money was found.
Appellant denied selling cocaine to Hale.
The evidence against appellant consisted primarily of Hale's
testimony. On cross-examination, Hale denied any promise of
leniency by the Commonwealth. He was released on an unsecured
bond on several writs of capias, and none of the felony charges
against him had been tried when he testified against appellant.
Hale also knew the routine of the controlled buys. He had
assisted the sheriff's office twelve or thirteen times. He knew
the interior of his vehicle would be searched but not the
exterior. He also knew he would not be asked to remove his
clothing or shoes. Furthermore, he knew the officers would not
remove the quarter panels or look under the hood.
Appellant testified on his own behalf. During
cross-examination, the following dialogue occurred between the
prosecutor and appellant:
Q. Mr. Newton, how many felonies have
you been convicted of?
A. I think three.
Q. Three?
A. I guess.
Q. Isn't it true, sir, that you have
been convicted of five felonies?
A. I don't know.
Q. Don't you recall being convicted of
distributing cocaine in 1995?
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A. Yeah, probably.
Q. Do you recall being
convicted in 1988?
Appellant's counsel objected, contending the prosecutor
could not ask the specific nature of the prior offenses. The
trial court overruled appellant's objection and permitted the
cross-examination to continue.
Q. Were you convicted of possession of
LSD too in 1987? Were you?
A. Yeah, because in 1989 I was at home.
Q. You weren't convicted of conspiracy
to distribute more than one-half ounce of
marijuana by this Court in November?
A. Yes.
Q. And weren't you convicted of
distributing more than one-half ounce, but
less than five pounds of marijuana in this
Court in November of 1995?
A. Yes.
The trial court instructed the jurors that they could
"consider proof of the witness's prior conviction of a felony 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."
II. ANALYSIS
Appellant contends the trial court erred in permitting the
prosecutor to enumerate his prior drug-related convictions during
cross-examination. We agree and reverse appellant's convictions.
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The Commonwealth concedes that the trial court erred but
contends the error was harmless. In support of its position, the
Commonwealth argues that because appellant was charged with
distributing cocaine after having previously been convicted of the
same offense, the Commonwealth was entitled to introduce, as a
part of its burden of proof, a certified copy of an order
reflecting appellant's 1988 drug distribution conviction.
Therefore, the Commonwealth argues, the jury was informed that
appellant previously had been convicted of distributing cocaine,
and the additional evidence of appellant's drug distribution was
merely cumulative of evidence properly before the jury. We
disagree with the Commonwealth.
Generally, in order to avoid or minimize the prejudice
inherent in proving prior felony convictions, the Commonwealth may
impeach the credibility of the accused only by showing the fact
and number of prior felony convictions. See Harmon v.
Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971). Unless
the prior conviction was for perjury, neither the nature of the
felony nor the details of the conviction are admissible. See id.If a defendant "testifies untruthfully about 'the fact of
conviction' or the number of prior felony offenses, the
Commonwealth may show that [he] has knowingly testified
untruthfully about a material fact." Powell v. Commonwealth, 13
Va. App. 17, 23-24, 409 S.E.2d 622, 626 (1991).
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In Powell, this Court distilled from several cases the
principles that govern the Commonwealth's impeachment of a
defendant with the defendant's prior convictions. We held where
a defendant/witness testifies untruthfully on
direct examination about the number of prior
felony convictions, he opens the door to
cross-examination which is reasonably
designed to elicit relevant evidence to show
whether the defendant/witness knowingly
testified falsely. The Commonwealth may not,
however, resort to cross-examination which
unnecessarily presents prejudicial
information about the name or nature of prior
convictions with little or no probative
value.
Id. at 24, 409 S.E.2d at 626.
The Commonwealth concedes that it did not follow the
procedure required by Powell.
In Virginia, non-constitutional error is
harmless "[w]hen it plainly appears from the
record and the evidence given at the trial
that the parties have had a fair trial on the
merits and substantial justice has been
reached." Code § 8.01-678 (emphasis added).
"[A] fair trial on the merits and substantial
justice" are not achieved if an error at
trial has affected the verdict.
Consequently, under Code § 8.01-678, a
criminal conviction must be reversed unless
"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 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.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc). Therefore, "we must review the record and
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the evidence and evaluate the effect the error may have had on how
the finder of fact resolved the contested issues." Id. at 1007,
407 S.E.2d at 912.
Generally, an error is "presumed to be prejudicial unless it
plainly appears that it could not have affected the result."
Caldwell v. Commonwealth, 221 Va. 291, 296, 269 S.E.2d 811, 814
(1980) (citation omitted). However, if a curative instruction is
given to the jury, the usual presumption of prejudice is replaced
by a presumption that the jury followed the instruction and
disregarded the improper evidence. See LeVasseur v. Commonwealth,
225 Va. 564, 589, 304 S.E.2d 644, 657 (1983). In such a case, a
conviction is not subject to reversal unless the error "suggests a
manifest probability that it was prejudicial to the defendant."
Boykins v. Commonwealth, 210 Va. 309, 313, 170 S.E.2d 771, 774
(1969) (citation omitted).
Appellant was tried for two counts of distribution of
cocaine, both occurring in June 1995. A 1988 conviction of drug
distribution was properly before the jury because it was the
predicate offense upon which the enhanced penalty was based. The
properly admitted 1988 conviction was seven years old, however,
when the subject offenses were committed. The improperly admitted
convictions were almost contemporaneous with the subject offenses.
These current convictions may well have greater influence on the
jury than a much older conviction.
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If the trial court had not erred, the jury only would have
known of a seven-year-old conviction and five felony convictions.
With the erroneously admitted convictions, the jury knew of almost
contemporaneous distribution convictions and five convictions of
drug offenses. We cannot say that the jury's knowledge of these
drug charges did not affect the verdict despite the cautionary
instruction. Hale's extensive criminal record, his lenient
treatment by the Commonwealth, and a profit motive may well have
created some doubt with the jury as to Hale's credibility.
We hold that there is a manifest probability that the
improperly admitted convictions were prejudicial to appellant.
The jury had to determine whether or not appellant was guilty of
two counts of distribution of cocaine. They knew appellant had
been convicted of the identical offense within the past six
months. They also knew appellant had a total of five drug
convictions. A cautionary instruction could not undo such damage.
For these reasons, we reverse appellant's convictions and
remand for a new trial.
Reversed and remanded.
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