Coffey v. Commonwealth , 188 Va. 629 ( 1949 )

Miller, J.,

dissenting.

A pedestrian was struck and killed by accused’s automobile under such circumstances as to establish that the driver thereof was guilty of involuntary manslaughter. There were two occupants of the car, the accused and Ed Southers. Who was driving the vehicle when the fatal accident occurred was the chief factual issue to be determined. That being once ascertained, the only other question to decide was what punishment to impose.

The majority opinion concedes—in fact, states—that prejudicial testimony was admitted over objection of accused. It consisted of a long statement made by Ed Southers to the sheriff of the county in the absence of accused which definitely proved that he was the driver and not Southers. It also established that Coffey had, subsequent to the killing, proposed and entered into an understanding or conspiracy with Southers to suppress evidence or commit perjury so that it could not be determined which was at the wheel when the tragedy took place. If believed by the jury, it would not only have conclusively established the guilt of accused, but also the fact that he agreed to and did commit perjury upon this trial when he testified that he was too drunk to know what happened.

After erroneously admitting the testimony, the court later undertook to strike it out. The Commonwealth’s Attorney, being aware that the evidence was prejudicial to the accused, suggested that if the court had committed error, (which it had), that a mistrial be granted. That the court declined to do and remarked, “I don’t think it is an error to be reversed on if nothing else happens in the case.” The remark indicates that the trial judge did not consider that error sufficient to vitiate the trial if it was cured and none other committed.

That the effect of illegal testimony erroneously admitted may usually be cured by a clear instruction to the jury to disregard it is well recognized in Virginia by the decisions of Taylor v. Commonwealth, 122 Va. 886, 94 S. E. 795, and Kroger Gro., etc., Co. v. Dunn, 181 Va. 390, 25 S. E. (2d) 254, and other cases. Yet, in my opinion, this evidence and the circumstances attending its admission were so prejudicial as to render it highly doubtful whether its deterimental effect could be obliterated by any instructions that the court could give.

The jurors had heard it from one of the court’s law enforcement officers. It was convincing of guilt and such as to arouse indignation against accused and demand an explanation. There was manifest probability that it would leave lasting and prejudicial impressions upon their minds even if stricken out in comprehensive and no uncertain terms. Speaking on that subject, Judge Kelly said in Washington, etc., Railway v. Ward, 119 Va. 334, 89 S. E. 140:

“There are cases in which the error of admitting improper testimony, or the effects of mere statements of counsel, cannot be adequately overcome by a subsequent direction to the jury to disregard the objectionable evidence or statements.” (119 Va. p. 339).

That care should be used to fully remove the effect of illegal testimony is made plain by a like statement in 5 Am. Jur. “Appeal and Error”, sec. 1041, p. 596:

“It has been said, however, that care and caution are to be exercised in the delicate, difficult, and important matters of removing the prejudicial effect of evidence improperly admitted, and that the burden rests upon the party causing its admission, and no duty rests upon the other party in that connection after he has seasonably and properly reserved his exception to its admission.”

See also, Throckmorton v. Holt, 180 U. S. 552, 21 S. Ct. 474, 45 L. Ed. 663.

But be that as it may, the court did not adequately strike out the evidence. In the majority opinion it is stated, “It is difficult to determine just what testimony the court meant to strike or withdraw from consideration of the jury. * * *

“Without further discussion, it is sufficient to say that the instruction to the jury to disregard the illegal testimony was not clear. It was not as direct, positive, or comprehensive as it should have been.”

Its prejudicial effect and detrimental influence was therefore most probably left upon the minds of the jurors and influenced them in determining guilt and fixing punishment.

Though this evidence was not striken out in positive and comprehensive language, the majority opinion concludes that the court’s error in that respect was not deterimental to the interests of the accused. It is stated:

“However, a careful study of the evidence convinces us that if we disregard all the the statements made by Southers to the sheriff and his deputies on Tuesday and all of the testimony of Southers himself, the jury would not have been justified in finding a different verdict.”

It is treated as mere surplusage.

Though other legal evidence be conclusive of guilt, the trial court should nevertheless carefully guard against the admission of improper and prejudicial testimony. If it, however, be once admitted, to eradicate its detrimental effect, it should be stricken out in clear and adequate language. To do less is to allow the Commonwealth to impair, if not destroy,, with illegal testimony that presumption of innocence to which the accused is entitled. It was said in the very recent case of Carson v. Commonwealth, ante, p. 398, at p. 412, 49 S. E. (2d) 704: “* * This presumption applies at every stage of the trial until it is rebutted beyond a reasonable doubt by the evidence of the Commonwealth.” I take it that statement means it must be rebutted by properly admissible evidence.

Nor do I think for other reasons are we entitled to say that “the jury would not have been justified in finding a different verdict.”

Even though it be conceded that other properly admitted evidence conclusively established that accused was guilty of involuntary manslaughter, and this illegal evidence was mere surplusage, yet I think its prejudicial effect struck deeper than to just establish guilt. Its character was such as to incense the jury and bring about a more severe punishment than might otherwise have been inflicted.

In addition, this evidence might well have influenced the character of defense made by the accused. At the conclusion of the Commonwealth’s case he was entitled to know just what evidence he was required to meet. At that stage of the trial, had the evidence that this court now deletes from the record been wholly excluded from the consideration of the jury, the Commonwealth’s case would have definitely fallen short of conclusive proof of guilt. That was not done and the accused, being then faced with illegal evidence, was required to determine whether to testify himself and offer testimony of other witnesses or not. Had he not been confronted with that situation, he might well have declined to offer any evidence. That procedure would have kept from the jury all reference to his prior conviction of felony.

In sustaining this verdict and judgment, we do so upon a materially different case than that presented in the trial court and substantially different from what the accused was called upon to meet when the Commonwealth rested. Here a major operation is performed upon the record and the objectionable evidence removed and guilt conclusively found upon what evidence remains. We even go further and approve the quantum of punishment imposed by the jury upon all of the evidence, good and bad, presented in the lower court. This, I think, establishes a dangerous practice and precedent to which I am unwilling to subscribe.

For the reasons above stated, I am of opinion that the conviction should be set aside and a new trial awarded.

Staples, J., concurs in this dissent.