Wright v. Com.

• Decision Date: 06 August 1996
• Docket Number: No. 1509-92-1,1509-92-1
• Citation: 473 S.E.2d 707,23 Va.App. 1
• Parties: Lawrence WRIGHT v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 707

473 S.E.2d 707

23 Va.App. 1

Lawrence WRIGHT v.COMMONWEALTH of Virginia.

Record No. 1509-92-1.

Court of Appeals of Virginia Richmond.

Aug. 6, 1996.

B. Thomas Reed, Norfolk, for appellant.

G. Russell Stone, Jr., Assistant Attorney General(James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., and BAKER, BARROW, ^*BENTON, COLEMAN, KOONTZ, ^**WILLIS, ELDER and FITZPATRICK, JJ.

JOSEPH E. BAKER, Judge.

Lawrence Wright(appellant) appeals from his conviction for possession of cocaine with intent to distribute in violation of Code§ 18.2-248.Appellant contends that the trial court erred when it refused to permit him to introduce hearsay evidence after a Commonwealth's witness "opened the door" by making reference to other inadmissible hearsay evidence.A majority of a panel of this Court, in an unpublished opinion, held that the trial court did not err when it refused to let appellant introduce the hearsay in response to the Commonwealth's evidence.Wright v. Commonwealth, No. 1509-92-1, 1994 WL 468632(Va.Ct.App.August 30, 1994).The Court granted appellant's petition for rehearing en banc.Upon rehearing, we affirm the judgment of the trial court.

I.

On October 29 and 30, 1991, using an informant, Norfolk City Police OfficerJames N. Stevens(Stevens) directed controlled purchases of cocaine at 2405 Jamaica Avenue in that city.¹Stevens recorded the serial numbers and gave the informant four ten-dollar bills to make the purchases.To support the issuance of a warrant to search 2405 Jamaica Avenue for narcotics and related property and persons, Stevens executed an affidavit based, in part, on his role in the controlled purchases and, in part, on information given to him by the informant.The sole issue before us arises from the trial court's refusal to permit appellant to introduce, through cross-examination of Stevens, information contained in the affidavit and given to Stevens by the informant after the controlled purchases were made.

For an understanding of the trial court's ruling, it is necessary to review the relevant parts of Stevens' affidavit, ² which are as follows:

For the last week I have been receiving information from a confidential informant [CI] that a subject known to the CI as Lawrence Wright is selling cocaine from 2405 Jamaica Avenue Norfolk, Virginia.The CI has described Lawrence Wright to me as a balck [sic] male, about five feet eight inches tall to five feet nine inches tall, weighing about one hundred and seventy five pounds, short hair, clean shaven, light brown skin and in his late thirties to early forties.I have checked Norfolk Police Department records and found that Lawrence Wright is five feet eight inches tall and weighs one hundred and sixty seven pounds.I have shown a photograph of Lawrence Wright to the CI, who identified the photograph of Lawrence Wright as the person selling cocaine from 2405 Jamaica Avenue Norfolk, Virginina [sic].

Within the last seventy-two (72) hours I have met with the CI for the purpose of making a controlled purchase of cocaine from Lawrence Wrightat 2405 Jamaica Avenue Norfolk, Virginia.The CI was thoroughly searched for contraband with negative results.I then provided the CI with United States Currency with prerecorded serial numbers.The CI was then instructed to go to 2405 Jamaica Avenue and to buy a quantity of cocaine from Lawrence Wright.The CI then left me and went directly to 2405 Jamaica Ave and entered the residence.A short time later the CI left the residence and returned directly to me.Upon returning to me the CI turned over a quantity of suspected cocaine to me.I feild [sic] tested the suspected cocaine with positive results.

Pursuant to the affidavit, a search warrant was issued on October 31, 1991, and, upon execution of the warrant, contraband was found.³In addition, $608 in paper money was found on appellant's person, including the four ten-dollar bills Stevens had given the informant to buy the cocaine.Appellant was indicted for possession of cocaine with intent to distribute in violation of Code§ 18.2-248.

Appellant was tried on that charge prior to the trial from which this appeal emanates but a mistrial was declared because the jury could not reach a unanimous verdict.At that first trial, the court permitted the jury to hear hearsay evidence contained in the affidavit.

Prior to appellant's second trial, the Commonwealth filed a motion in limine requesting the trial court to preventappellant from

1. presenting evidence regarding the identity of the person from whom the confidential informant purchased cocaine during the 72 hours preceding execution of the search warrant; and

2. presenting evidence regarding the description of the above-described person provided by the confidential informant as recited by Inv. J.N. Stevens in his affidavit for search warrant;

The trial court granted the Commonwealth's motion, stating that

I think that it is best in every trial to keep any hearsay out.I think that anything a confidential informant would have said to a police officer is certainly hearsay as part of the law.I think we would run the risk if I let that in.I would also have to let in a confidential informant's saying, "I'm going to buy drugs from Mr. X, and he is--"

I don't think it would be fair to let the jury get the information they were going to buy drugs from there, and I think the clean-shaven--I think it's just best to keep the whole affidavit out.You can cross-examine officers as to what they did in the case.

During the second trial, Stevens testified as to how a controlled buy of narcotics is set up and conducted and added that the same procedure was used in this case on October 29, 1991 and October 30, 1991.He testified that after the controlled buys, he obtained a search warrant for the residence and executed the warrant on October 31, 1991.

Stevens testified that during the search he had a conversation with appellant.In response to the Commonwealth Attorney's question regarding the nature of his conversation with appellant, Stevens stated that he told appellant that the police were going to make a thorough search of the residence and that it would save a great deal of time if appellant would tell them where any drugs, packaging material, scales, and the like were located.Stevens continued, stating:

I also pointed out that [appellant] was named in the affidavit for the search warrant as the person who was selling drugs and that the only other person named in the warrant was his Aunt Thelma and that she was mentioned only because she lived there or was listed as living there.

Appellant did not object to Stevens' testimony, nor did he move for a mistrial or request any other remedy.At oral argument, counsel for appellant frankly stated that he deliberately withheld any objection or motion because he wanted to introduce the hearsay evidencethe trial court earlier had refused to allow.

After the Commonwealth concluded its examination of Stevens, but prior to appellant's cross-examination, appellant argued that Stevens' testimony concerned things about which Stevens had no personal knowledge and was "objectionable" hearsay.The trial court asked, "[W]hy wasn't there an objection right there?"Appellant's counsel responded that a contemporaneous objection would have emphasized the objectional evidence to the jury.The trial court responded, "[I] was waiting for an objection."Appellant's counsel then stated, "[I] don't want a mistrial in this case," only the right "to show that the confidential informant described [the] person ... selling drugs as being clean-shaven."Appellant's counsel asserts that he wanted the informant's description entered because he then could show that appellant was not clean shaven on the day of his arrest.

II.

Appellant argues that the Commonwealth "opened the door" to his proffered hearsay testimony by eliciting inadmissible hearsay testimony itself and that the trial court erred by refusing to allow him to counter that evidence.We hold that the trial court did not abuse its discretion by refusing to admit irrelevant hearsay under the theory that the Commonwealth had "opened the door" for such evidence.

"Opening the door" to the admission of evidence is a catchphrase often used to refer to the doctrine of "curative admissibility."Curative admissibility, in its broadest form, allows a party to introduce otherwise inadmissible evidence when necessary to counter the effect of improper evidence previously admitted by the other party without objection.Clark v. State, 332 Md. 77, 629 A.2d 1239, 1244-45(1993);see also1 John Henry Wigmore, Wigmore on Evidence, § 15 (Rev. ed. 1983).

In Graham v. Commonwealth, 127 Va. 808, 103 S.E. 565(1920), Graham was charged with murder and defended on the ground of self-defense.At trial, Graham introduced evidence that the deceased had used profanity shortly before his death.Thereafter, to rebut Graham's evidence, the Commonwealth introduced evidence that the deceased was not in the habit of swearing.On appeal, Graham argued that the Commonwealth's evidence was immaterial and that the trial court erred in admitting it.In concluding that the trial court did not err, the Supreme Court held that, although Graham's evidence was irrelevant and would have been inadmissible if objected to by the Commonwealth, "it [did] not follow that such testimony ... [could not] be rebutted later."Id. at 824, 103 S.E. at 570.The Court noted that its holding was an exception to the "rule that the time of the courts will not be allowed to be occupied in the trial of collateral issues by allowing the introduction of rebuttal testimony thereon."Id. at 825, 103 S.E. at 570-71.See alsoRoy v. Commonwealth, 191 Va. 722, 729, 62 S.E.2d 902, 905(1951).

In Graham and Roy, the answering parties introduced evidence relevant to "curing" any harm resulting from previously admitted irrelevant...