Lockhart v. Com.

• Decision Date: 26 April 1994
• Docket Number: No. 0364-92-4,0364-92-4
• Citation: 18 Va.App. 254,443 S.E.2d 428
• Parties: Ronnie LOCKHART v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 428

443 S.E.2d 428

18 Va.App. 254

Ronnie LOCKHART v. COMMONWEALTH of Virginia.

Record No. 0364-92-4.

Court of Appeals of Virginia.

April 26, 1994.

Rehearing En Banc Granted June 15, 1994.

[18 Va.App. 256] Thomas O. Murphy, Manassas, for appellant.

Richard B. Smith, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BARROW, COLEMAN and KOONTZ, JJ.

KOONTZ, Judge.

Ronnie Lockhart (Lockhart) appeals his conviction by jury under Code § 18.2-248 for distribution of cocaine. Lockhart asserts that the trial court erred in admitting into evidence testimony of a police witness concerning Lockhart's subsequent arrest for a similar crime. The Commonwealth's Attorney adduced this evidence on redirect examination after Lockhart's counsel had inquired about the witness's prior dealings with Lockhart. These facts present an issue of the proper balance between the general prohibition against the admissibility of other crimes evidence and the concept of "opening the door" to otherwise inadmissible evidence to rebut evidence presented by a defendant. For the reasons that follow, we find that the trial court erred in admitting evidence of a subsequent, unrelated charge of drug trafficking. Accordingly, we reverse Lockhart's conviction.

I. FACTUAL BACKGROUND

On March 7, 1991, Detective Jim Buchanan of the Prince William County Police Department met with Donna Talley, a confidential informant. Buchanan provided Talley with $150 in marked money for Talley to use in an undercover drug purchase. Talley contacted Lockhart and arranged for him to visit her apartment. Buchanan, who knew Lockhart by sight, concealed himself across the street and awaited Lockhart's arrival. Buchanan monitored events in Talley's apartment through use of a concealed listening device.

After observing Lockhart enter and leave Talley's apartment, Buchanan alerted other officers in the area to stop and detain Lockhart. Officers stopped Lockhart two minutes after he left Talley's apartment. After Lockhart consented to a search, officers recovered $950 in cash, including the $150 in marked bills Buchanan had given to Talley. Buchanan arrested Lockhart for distribution of cocaine.

At trial, during cross-examination and without objection, defense counsel engaged Buchanan in the following colloquy:

Q: As of March 7th, [1991,] how long had you known [the defendant] personally as far as who he was by identity?

A: Four or five months.

Q: Had you had occasion to stop him before?

A: Yes.

Q: And had you had occasion to make a search of his person when you stopped him before?

A: Yes.

Q: And you never found any drugs or anything on him, did you?

A: No drugs, just money.

Q: How many times had you stopped him before that day?

A: I can't recall the exact number of times.

Q: What was your reason for stopping him on those occasions?

A: Receiving information that he was transporting illegal narcotics.

Q: And you never found anything on him?

A: No.

On redirect examination, the Commonwealth's Attorney questioned Buchanan as follows:

Q: Now [defense] counsel asked you about other contacts that you had with the Defendant and other times you've searched him and he asked you if you've ever found any drugs on him during that period of time. Have you been able, on other occasions, to make purchases from him through a confidential informant similar to this case?

A: Yes.

Q: And when was the last time you did that?

At this point, defense counsel objected on the ground that the question concerned matters for which Lockhart had not yet been convicted. The Commonwealth's Attorney replied that defense counsel had brought the subject up during cross-examination. The trial judge, rejecting the assertion that the question exceeded the scope of defense counsel's initial inquiry, ruled that defense counsel had "opened the door on ... cross-examination."

The trial judge then permitted Buchanan to testify that Lockhart had been involved in a drug sale to an informant on November 7, 1991 (eight months after the present offense). Buchanan further testified that the arrest for this alleged crime had occurred the day before the present trial.

During his closing argument, the Commonwealth's Attorney made the following statement:

[The defendant is] the man who makes [cocaine] available at the proper cost. Does he have any regrets; does he have any remorse? You know he doesn't because he was arrested on March 7th and he was on bond from this Court and continued even the week before last, eleven days ago, in this very activity.

II. ADMISSION OF EVIDENCE OF OTHER CRIMES GENERALLY BARRED

As a general rule, evidence that shows or tends to show crimes or other bad acts committed by the accused is incompetent and inadmissible to prove the accused committed or likely committed the particular crime charged. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). Evidence of other specific, similar bad acts, by inferring that an accused has a propensity to commit bad acts of the type for which he is on trial, reverses the presumption of innocence. Spence v. Commonwealth, 12 Va.App. 1040, 1045, 407 S.E.2d 916, 918 (1991) (citing Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)); see also Sutphin v. Commonwealth, 1 Va.App. 241, 245, 337 S.E.2d 897, 899 (1985) ("[t]he policy underlying the exclusion of such evidence protects the accused against unfair prejudice resulting from the consideration of prior criminal conduct in determining guilt"). See generally Donahue v. Commonwealth, 225 Va. 145, 156, 300 S.E.2d 768, 774 (1983); Eccles v. Commonwealth, 214 Va. 20, 22, 197 S.E.2d 332, 333 (1973) (per curiam ); Boyd v. Commonwealth, 213 Va. 52, 53, 189 S.E.2d 359, 359-60 (1972) (per curiam ) (holding that evidence of prior unrelated drug sales is inadmissible to prove knowledge of the presence or nature of drugs or the intent to possess or distribute them).

Well established exceptions to the general rule of exclusion of other crimes evidence apply where the evidence is relevant to show some element of the crime charged. However, these exceptions are not construed and applied so broadly so as to lose sight of the highly prejudicial nature of other crimes evidence and, thus, negate the general rule. Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. To be admissible as an exception, evidence of other offenses must be relevant:

(1) to prove motive to commit the crime charged; (2) to establish guilty knowledge or to negate good faith; (3) to negate the possibility of mistake or accident; (4) to show the conduct and feeling of the accused toward his victim, or to establish their prior relations; (5) to prove opportunity; (6) to prove identity of the accused as the one who committed the crime where the prior criminal acts are so distinctive as to indicate a modus operandi; or (7) to demonstrate a common scheme or plan where the other crime or crimes constitute a part of a general scheme of which the crime charged is a part.

Sutphin, 1 Va.App. at 245-46, 337 S.E.2d at 899.

In order for evidence that the accused has committed other crimes to be admissible under an exception, the Commonwealth must show its relevance to prove a material fact or issue. Furthermore, its relevance must equal or outweigh the prejudice inherent in proving that an accused has committed other crimes or bad acts. Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 617, cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990).

Evidence which has no tendency to prove guilt, but only serves to prejudice an accused, should be excluded on the ground of lack of relevancy. For evidence to be admissible it must relate and be confined to the matters in issue and tend to prove an offense or be pertinent thereto. Evidence of collateral facts or those incapable of affording any reasonable presumption or inference on matters in issue, because too remote or irrelevant, cannot be accepted in evidence.

Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208 (1967) (citation omitted).

III. ADMISSION OF OTHER CRIMES EVIDENCE UNDER THE CONCEPT OF "OPENING THE DOOR," EXPANDED RELEVANCY OR FAIRNESS

For purposes of our discussion here and as a general proposition, "expanded relevancy" is a concept of fairness that allows a party to present evidence that would be otherwise irrelevant or incompetent and, thus, inadmissible to respond to prejudicial evidence already presented by the opposing party. ¹ This concept of fairness is embodied in the terms "opening the door," "invited error," "fighting fire with fire," or "curative admissibility." Court opinions and legal commentators often use these terms interchangeably. In the recent decision of Clark v. State, 332 Md. 77, 629 A.2d 1239 (Ct.App.1993), the Maryland Court of Appeals outlined a clear distinction between "opening the door" (involving expanded relevancy) and "curative admissibility" (involving fairness). In contrast, Wigmore addresses the issue in the diverse situations in which it may arise under the general term of curative admissibility. Tillers, 1 Wigmore on Evidence § 15 (Rev. ed. 1983). That commentary suggests that Virginia adheres to the majority "Massachusetts rule" which permits "rebuttal by means of otherwise inadmissible evidence only if the evidence originally submitted created significant prejudice and there is a need for a corrective that can be provided only by that evidence." Id., § 15 n. 5, at 741 (relying upon Graham v. Commonwealth, 127 Va. 808, 103 S.E. 565 (1920)). A careful consideration of the issue, however, reveals a body of law more intricate than implied in this statement of the rule.

Virginia case law discloses that the various forms of expanded relevancy are addressed, if specifically at all, in terms of "opening the door." The use of this term undoubtedly stems from its longstanding use in both our civil and criminal practice as an umbrella term covering all of those...