Terry v. Com., 0690-86-3

• Decision Date: 06 October 1987
• Docket Number: No. 0690-86-3,0690-86-3
• Citation: 5 Va.App. 167,360 S.E.2d 880
• Parties: Wendell Wallace TERRY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 880

360 S.E.2d 880

5 Va.App. 167

Wendell Wallace TERRY v. COMMONWEALTH of Virginia.

Record No. 0690-86-3.

Court of Appeals of Virginia.

Oct. 6, 1987.

Webster Hogeland, Roanoke, for appellant.

Margaret Poles Spencer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: COLEMAN, DUFF and HODGES, JJ.

COLEMAN, Judge.

Wendell Wallace Terry appeals his conviction for possession of marijuana with intent to distribute. He raises three arguments: (1) whether the trial judge erred in denying his motion for mistrial after the Commonwealth introduced inadmissible evidence; (2) whether the jury instructions impermissibly emphasized portions of the evidence; and (3) whether the evidence was insufficient to support a conviction.

We find that the trial court erred in denying the motion for a mistrial so we reverse and remand for a new trial. As to the jury instructions, we affirm the trial judge's rulings. We do not address the question of the sufficiency of the evidence.

The central issue before us is whether the trial court erred in refusing to grant a mistrial after the Commonwealth produced inadmissible evidence. Generally, a trial court may cure errors arising from improperly presented evidence by immediately instructing the jury to disregard that evidence. LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984). The production of inadmissible evidence is not reversible error unless there is a "manifest probability" that the improper evidence has been prejudicial to the adverse party. Coffey v. Commonwealth, 188 Va. 629, 636, 51 S.E.2d 215, 218 (1949). The probability of prejudice exists when the evidence is "so impressive that it probably remained on the minds of the jury and influenced their verdict." Id. Thus, "if the prejudicial effect of the impropriety cannot be removed by the instructions of the trial court, the defendant is entitled to a new trial." Lewis v. Commonwealth, 211 Va. 80, 83, 175 S.E.2d 236, 238 (1970).

In the present case, the appellant was convicted of possession of marijuana with the intent to distribute. Concededly, the Commonwealth presented sufficient circumstantial evidence on the element of intent from which the jury could have inferred an intent to distribute. The only direct evidence of a sale, however, was the inadmissible testimony of the detective who stated that the "search warrant [for defendant and defendant's car] was based on a controlled buy made by a confidential reliable informant." This inadmissible evidence of an earlier drug sale was the only direct evidence of a sale and thus the strongest evidence of intent to distribute. Therefore, despite the trial court's cautionary instruction to the jury, we cannot say that the evidence did not influence the jury's verdict or that the jury would necessarily have found the requisite intent if they had not heard that evidence. See Coffey, 188 Va. at 637, 51 S.E.2d at 218 (admission of incompetent evidence not reversible error because jury would not have been justified in reaching a different verdict even without the incompetent evidence). While there may have been sufficient circumstantial evidence for the jury to infer intent to distribute, the inadmissible evidence was so probative of the issue of intent that we conclude a manifest probability of prejudice to the appellant resulted. We cannot say that the evidence tending to establish guilt was so overwhelming that even had the inadmissible evidence been excluded the same result would have obtained. The error was not harmless beyond a reasonable doubt. Accordingly, the trial court erred in denying the motion for a mistrial and appellant is entitled to a new trial.

Because we remand for a new trial, during which the issue of jury instructions is likely to again arise, we address that issue. The question is whether jury instructions three and four relating to possession of drugs unduly emphasized portions of the evidence to the exclusion of other evidence. Instruction number three addressed the element of possession and noted that the Commonwealth must prove actual or constructive possession. In paragraph four of instruction number three, the court instructed the jury that "[p]ossession may be proved by acts, declarations or conduct of the defendant from which it may fairly be inferred that he was aware of the presence and...