Coe v. Com.
| Decision Date | 07 March 1986 |
| Docket Number | No. 841866,841866 |
| Citation | 231 Va. 83,340 S.E.2d 820 |
| Parties | Tommy Lee COE v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
C. David Whaley (Morchower, Luxton & Whaley, Richmond, on brief), for appellant.
Margaret Poles Spencer, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.
Present: All the Justices.
Indicted for conspiring during the period January 1 through June 1, 1983 to distribute more than five pounds of marijuana, defendant Tommy Lee Coe was convicted of the charge in a September 1984 jury trial. Confirming the verdict, the trial court sentenced defendant to confinement in the penitentiary for 20 years. We limited defendant's appeal to consideration of two evidentiary questions.
The evidence showed that defendant and a group of other men agreed to travel from Virginia to Indiana, procure a large quantity of marijuana, return to Virginia, and distribute the substance at a profit. The men departed in late January or early February 1983 from defendant's Chesterfield County home. Traveling in two automobiles, the group went to South Bend, Indiana, picked up approximately 100 pounds of marijuana, and loaded it into one of the vehicles. The men returned to defendant's home with the substance, expecting to make a $10,000 net profit from sale of the contraband. The vehicle used to transport the marijuana was registered in the name of one Rae Roeban. She was a female companion of defendant with whom he lived during the period of the conspiracy.
The Commonwealth relied on testimony from two of the conspirators, James Andrew Glascock and George Goolsby, to establish a case against defendant. The prosecutor also introduced in evidence a tape recording of a telephone conversation between defendant and Glascock and Goolsby. The recording was made July 31, 1984 when defendant placed a call from jail to the other two, who were together at one location. Some segments of the conversation were excised from the tape by agreement between the prosecutor and defense counsel. The edited tape was played for the jury.
During the conversation, defendant discussed the criminal transaction and inquired of Glascock and Goolsby about the extent of the prosecutor's knowledge of the activities of the group. At times during the extended, rambling telephone discussion, defendant encouraged the others to falsify their testimony about the enterprise. Even though defendant did not specifically admit being involved in the conspiracy, he never denied being in South Bend or participating in the transaction. Instead, he stated the police had "nothing on" him that would "stick" because no person saw him in possession of the contraband.
Over objection of defendant, the trial court permitted the jury to hear the following portion of the discussion with Glascock pertaining to defendant's female companion:
In addition, the Commonwealth presented the testimony of Detective Douglas J. Radican of the South Bend Police Department. The trial court admitted, over defendant's objection, the following portion of Radican's direct examination:
On appeal, defendant contends the trial court committed reversible error by admitting the comments about the female companion and the testimony about drug conditions in South Bend. Regarding the Roeban comments, defendant points out that his statement was made more than 12 months after the conspiracy is alleged to have ended. He asserts that information about his treatment of a woman at that time was not relevant to a determination of whether he conspired to distribute marijuana one year earlier. Defendant says there is no logical connection between his relationship with the woman and his involvement in the crime charged. The admission of the segment's last sentence containing the sexist comment about women in general was particularly egregious, argues defendant, because seven of the twelve jurors were women.
The Attorney General argues the Roeban conversation was relevant evidence and properly admitted by the trial court. The Commonwealth says that the comments were corroborative of much of the testimony of the co-conspirators. Such corroboration was important, according to the Attorney General, because the jury was instructed that the testimony of a co-conspirator must be "received with great care and caution." According to the Commonwealth, the comments confirmed the association between defendant and Roeban, the apparent owner of the vehicle used to transport the marijuana, and indicated that she was involved in defendant's marijuana distribution "business." Regarding the final comment about women generally, the Attorney General argues the statement should be considered in context with defendant's entire telephone conversation. The full telephone discussion, the Commonwealth asserts, shows defendant to be a "calculating conspirator" who boasted he would receive a minimum five-year sentence, if convicted, and that he could "do" the incarceration because he was unafraid of the prosecutor. Consequently, the Attorney General says, the single comment about women generally would have no significant impact on the jury in this case.
Evidence which bears upon and is pertinent to matters in issue, and which tends to prove the offense, is relevant and should be admitted. However, evidence of collateral facts and facts incapable of supporting an inference on the issue presented are irrelevant and cannot be accepted in evidence. Such irrelevant evidence tends to draw the jurors' attention toward immaterial matters and, if such evidence deals with misconduct of the accused, may tend to prejudice the jurors against the defendant. Nevertheless, evidence which tends to prove the crime charged is admissible though it may necessarily involve misconduct on the part of the defendant. Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208 (1967); Boggs v. Commonwealth, 199 Va. 478, 486, 100 S.E.2d 766, 772 (1957).
But when relevant evidence is offered which may be inflammatory and which may have a tendency to prejudice jurors against the defendant, its relevancy "must be weighed against the tendency of the offered evidence to produce passion and prejudice out of proportion to its probative value." State v. Flett, 234 Or. 124, 127, 380 P.2d 634, 636 (1963). The...
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