Leonard Randolph Brown v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia
LEONARD RANDOLPH BROWN
MEMORANDUM OPINION * BY
v. Record No. 3489-01-2 JUDGE LARRY G. ELDER
MAY 6, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
William P. Irwin, V (Bowen, Bryant,
Champlin & Carr, on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Leonard Randolph Brown (appellant) appeals from his jury
trial convictions for possession of a firearm by a convicted
felon and possession of a firearm while in possession of
cocaine. 1 On appeal, he contends the trial court committed
reversible error by admitting evidence of "alleged unadjudicated
criminal acts" involving the sale of drugs. Assuming without
deciding that appellant preserved this assignment of error for
appeal, we hold the trial court's admission of evidence
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant also was charged with possession of cocaine. He
pleaded guilty to that offense and does not challenge his
conviction for that offense on appeal.
concerning appellant's prior sale of drugs constituted error.
However, we hold that error was harmless and affirm the
challenged convictions.
I.
BACKGROUND
On April 14, 2000, pursuant to a search warrant, Sergeant
Edward Capriglione, Detective Clarence Key, and other officers
searched both a particular residence and a "three-walled" shed
located in the backyard. In the shed, the police found a
handgun and a loaded magazine.
Inside the house, police found appellant and his brother,
Carlton Brown (Brown). In a drawer in the desk in appellant's
bedroom, police found an ammunition clip that was "exactly the
same" as the one in the handgun found in the shed except that
one was "a little more worn." In a large stack of papers atop
the desk, Sergeant Capriglione found a slip of paper on which
was written "Model L380, 380 caliber auto, 443625." Those
notations matched the descriptive information contained on the
handgun found in the shed. The last number on the piece of
paper matched the gun's serial number. Beneath appellant's bed,
the police found devices for smoking illegal drugs, which
contained cocaine residue. Appellant admitted the cocaine
residue was his and said he was a drug user. Appellant's room
had an exit to the outside of the house. The only door
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connecting appellant's room to the rest of the house "ha[d]
locks on it from [appellant's] []side."
Police also arrested appellant's brother for possession of
a small amount of cocaine and possession of "a syringe,
typically associated with heroin use."
When questioned by Detective Key, appellant denied being a
dealer but said, "I have dealt to support my habit." Appellant
said he did not know how much money he "make[s] selling drugs"
but "that he had 20 hits of heroin earlier that day that he
sold." Appellant admitted knowing the firearm was in the shed
but said it belonged to someone else.
Brown, a convicted felon, testified for the Commonwealth
and identified the firearm found in the shed as belonging to
appellant. Brown testified that he previously had reported to
police that appellant "deal[t] in . . . illegal drug" activity
in the house.
Sergeant Capriglione confirmed that Brown had "contacted
the police department about a drug complaint" in February 2000.
Brown told Capriglione that appellant "was selling drugs out of
the residence" and that appellant kept heroin and firearms in
the shed behind the house.
Appellant testified and disclaimed ownership of the gun.
He said he told Officer Key he thought the gun might belong to
someone named Buddy Miller. Appellant was unable to explain how
an extra clip for the gun and a piece of paper bearing the gun's
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model, caliber and serial number came to be present in his
bedroom.
II.
ANALYSIS
A.
PROCEDURAL BAR
The Commonwealth contends appellant's present assignment of
error is barred because he objected at trial only on the ground
that one portion of the evidence was "[irr]elevan[t]" and that a
second portion constituted the Commonwealth's "merely trying to
bolster the credibility" of Brown, who testified at trial. It
contends neither of these objections covered appellant's present
claim that the evidence revealed other crimes and should not
have been admitted because it was highly prejudicial.
The Commonwealth relies on Irving v. Commonwealth, 15
Va. App. 178, 422 S.E.2d 471 (1992) (en banc), in which the
judgment was affirmed by an evenly divided Court. It is true
five judges in Irving took the position that a relevance
objection does not preserve for appeal the argument that other
crimes evidence was overly prejudicial. Id. at 179, 422 S.E.2d
at 472. However, an equal number of judges would have held to
the contrary. Id. at 181, 422 S.E.2d at 473-74. A judgment
that is affirmed by an evenly divided court carries no
precedential value. See Pack v. Commonwealth, 6 Va. App. 434,
435 n.1, 368 S.E.2d 921, 921-22 n.1 (1988). We assume without
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deciding, for purposes of this opinion only, that appellant's
relevance objection was sufficient to preserve for appeal his
challenge to Detective Key's testimony that appellant admitted
selling heroin and unspecified "drugs" on the day of his arrest
and on prior occasions, as well.
We hold, however, that appellant's challenge to Sergeant
Capriglione's testimony regarding Brown's prior report to police
as "merely trying to bolster [Brown's] credibility" constituted
an objection that the testimony was improper rehabilitation. It
did not encompass an objection that the testimony was irrelevant
"other crimes" evidence or was overly prejudicial. Thus, this
objection was insufficient to preserve for appeal appellant's
challenge to Sergeant Capriglione's testimony about his February
2000 conversation with Brown.
B.
ADMISSION OF EVIDENCE THAT APPELLANT SOLD DRUGS
Evidence ordinarily is admissible if it "is both material--
tending to prove a matter that is properly at issue in the
case--and relevant--tending to establish the proposition for
which it is offered." Johnson v. Commonwealth, 2 Va. App. 598,
601, 347 S.E.2d 163, 165 (1986). However, evidence of crimes or
other bad acts committed by the accused usually is incompetent
and inadmissible to prove the accused committed or likely
committed the particular crime charged. See, e.g., Guill v.
Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998).
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This rule "is deeply rooted in Virginia common law," Tucker v.
Commonwealth, 17 Va. App. 520, 522, 438 S.E.2d 492, 493 (1993),
and exists to prevent "confusion of offenses . . . and a
suggestion of 'criminal propensity,' thus preserving the
'presumption of innocence,'" Crump v. Commonwealth, 13 Va. App.
286, 289, 411 S.E.2d 238, 240 (1991) (citations omitted). Such
evidence of other acts may be admissible under limited
circumstances if (1) it is offered to prove "motive, intent,
plan, or scheme, or any other relevant element of the offense on
trial," Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572,
577 (1984), and (2) its relevance outweighs any prejudicial
effect, Ragland v. Commonwealth, 16 Va. App. 913, 918, 434
S.E.2d 675, 678 (1993).
Here, although appellant pleaded guilty to a charge of
possessing cocaine, he entered a plea of not guilty to the
charge of possessing a firearm while in possession of cocaine in
violation of Code § 18.2-308.4. Manifestly, appellant's
possession of cocaine was an element of the latter offense.
Thus, contrary to appellant's claim on brief that "[t]he only
issue before the jury was [appellant's] possession of the
firearm," the Commonwealth also was required to prove appellant
possessed cocaine, either actually or constructively. "An
accused cannot by stipulation limit the Commonwealth's right to
prove its case. . . . [T]he Commonwealth was not obliged to
have faith that the [fact finder] would be satisfied with any
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particular one or more of the items of proof. Therefore, it was
entitled to utilize its entire arsenal." Pittman v.
Commonwealth, 17 Va. App. 33, 35, 434 S.E.2d 694, 696 (1993).
Notwithstanding our agreement with the general principle
that the Commonwealth was entitled to present all evidence
tending to prove that appellant possessed cocaine while he
possessed the firearm, the evidence appellant challenges did
not, in fact, prove appellant possessed cocaine. The
Commonwealth proved, without objection from appellant, that he
possessed cocaine in the form of residue on smoking devices
found beneath his bed. The evidence to which appellant
subsequently objected included no testimony that appellant
possessed cocaine. Rather, it referred only to appellant's
possession and sale of unspecified "drugs" and "heroin."
The Supreme Court has been particularly
careful to recognize the danger of misusing
other crimes evidence in drug-related
charges. Evidence that an accused has
committed or has been convicted of other
drug-related crimes diverts the fact
finder's attention from the facts and
charges at issue. Also, such evidence calls
upon an accused to defend himself against
crimes not charged in the indictment.
Wilson v. Commonwealth, 16 Va. App. 213, 221, 429 S.E.2d 229,
234 (applying principles in context of error in admitting
evidence of prior sale of drugs to prove possession on occasion
charged was with intent to distribute), aff'd on reh'g en banc,
17 Va. App. 248, 436 S.E.2d 193 (1993).
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Applying those principles here, we hold appellant's
admissions (1) that he "[had] dealt" unnamed drugs "to support
[his] habit" and (2) "that he had 20 hits of heroin . . . he
[had] sold" that day prior to the search were both irrelevant
and highly prejudicial. The testimony that appellant admitted
possessing and selling unspecified drugs and heroin from the
residence was extremely prejudicial and was not "'so intimately
connected and blended with the main facts [regarding appellant's
possession and use of cocaine] . . . that they [could not] be
departed from with propriety.'" Kirkpatrick v. Commonwealth,
211 Va. 269, 273, 176 S.E.2d 802, 806 (1970) (quoting Walker v.
Commonwealth, 28 Va. (1 Leigh) 574, 576 (1829)).
For these reasons, we hold the trial court erred in
admitting Detective Key's testimony that appellant admitted
possessing and selling unspecified "drugs" and "heroin."
C.
HARMLESSNESS OF ERROR
[N]on-constitutional error is harmless when
"[i]t plainly appears from the record and
the evidence given at trial that the error
did not affect the verdict." Code
§ 8.01-678 (emphasis added). . . . 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). Factors relevant in the harmless
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error inquiry are "the importance of the witness' testimony in
the prosecution's case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of a witness on material points,
. . . [and] the overall strength of the prosecution's case."
Maynard v. Commonwealth, 11 Va. App. 437, 448, 399 S.E.2d 635,
641-42 (1990) (en banc) (quoting Delaware v. VanArsdall, 475
U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986))
(applying principles in context of constitutional error).
Here, the improperly admitted evidence was appellant's
statement to Detective Key that he had sold heroin and
unspecified "drugs" on the day of his arrest and on prior
occasions, as well. However, appellant admitted that he
possessed cocaine in the form of residue on one or more smoking
devices found beneath his bed, and other evidence in the record
established that appellant possessed and sold heroin and
unspecified drugs. Brown testified that, prior to the search of
the house in which he and appellant resided, Brown told Sergeant
Capriglione to "talk to [appellant]" about "illegal drug
activity in my mother's house." Sergeant Capriglione confirmed
Brown reported to police in February 2000--more than six weeks
before the search at issue and, therefore, presumably before
Brown had any motive to fabricate--that "[appellant] was selling
drugs [including heroin] out of the residence . . . where
[Brown] lived with his mother and [appellant]."
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Further, because appellant admitted possessing the cocaine
residue found on the smoking devices, the only issue truly in
dispute was whether appellant constructively possessed the
firearm found in the shed. The Commonwealth's evidence, both
direct and circumstantial, proved the gun belonged to appellant.
Brown identified the gun as appellant's and told Capriglione in
February 2000 that appellant kept guns in the shed. In
appellant's bedroom, which had an outside entrance and was
connected to the rest of the house by a door that locked from
inside appellant's room, police found an extra clip for the gun
and a piece of paper bearing the weapon's make, model and serial
number. Finally, although appellant claimed the gun belonged to
someone else, he admitted knowing it was in the shed.
Thus, the Commonwealth's evidence of guilt was strong, and
the admission of appellant's statement to Detective Key that he
sold heroin and other drugs was harmless.
III.
For these reasons, we hold the trial court's admission of
the challenged other crimes evidence constituted error but that
the error was harmless. Thus, we affirm the challenged
convictions.
Affirmed.
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