Steven Brown v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: January 29, 2002
• Docket: 0522012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Agee Argued at Richmond, Virginia

STEVEN BROWN MEMORANDUM OPINION * BY v. Record No. 0522-01-2 JUDGE G. STEVEN AGEE JANUARY 29, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY Robert G. O'Hara, Jr., Judge

Joseph E. Whitby, Jr. (Outten, Barrett, Sharrett & Whitby, P.C., on brief), for appellant.

Susan M. Harris, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Steven Brown (Brown) was convicted in a bench trial in the

Circuit Court of Brunswick County of possession of cocaine, in

violation of Code § 18.2-250, and possession of a firearm while

in possession of cocaine, in violation of Code § 18.2-308.4.

For the two convictions, he was sentenced to serve five years

incarceration. On appeal, he avers the trial court erred in

allowing the Commonwealth to introduce evidence of collateral

facts during the cross-examination of a defense witness. Brown

contends the collateral evidence was not relevant and

represented impeachment by a specific act of bad conduct. He

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. contends the trial court should not have permitted the subject

cross-examination. For the following reasons we agree and

reverse the decision of the trial court and remand for a new

trial.

BACKGROUND

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

So viewed, the evidence establishes that on December 14,

1999, Officer Hill of the Alberta Police Department stopped

Brown's vehicle for a traffic violation. A license check

revealed Brown's license was suspended. Officer Hill explained

to Brown that he was being arrested for driving with a suspended

license. Following the giving of the Miranda warnings, Brown

agreed to a search of his car. The officer, however, informed

him that the car would be towed and impounded. Brown asked if

his front seat passenger could drive the vehicle instead.

Rather than answer, the officer exited his cruiser and stepped

- 2 - to the driver's side window of Brown's car and asked the front

passenger whether he had a license. At that point, Officer Hill

noticed a gun butt, sticking out from under some papers. The

gun recovered was a loaded ".45, an Oscar A-80."

Brown informed the officer that the gun belonged to his

girlfriend and he "had moved it from under his seat [while the

officer was running the license and registration check] to the

driver's console because he didn't want to get in trouble for

it." Upon a further search of the vehicle, Officer Hill found

"a hard, rock substance'" which was determined to be cocaine.

Brown volunteered that the substance found was his.

At trial the sole issue was whether Brown knowingly

possessed the gun in violation of Code § 18.2-308.4. Brown

claimed he did not know the gun was in the car until Officer

Hill found it but immediately recognized it as belonging to his

girlfriend. He figured "she must have left it in the car."

They were the "only two that drive the car." It was for that

reason that "I hollered out the car and tried to tell him that

it wasn't my gun it was my girlfriend's gun."

Brown's live-in girlfriend at the time of the arrest,

Porcha Seward (Seward), testified as to her employment at the

Lawrenceville Correctional Center and that she worked the "night

just preceding [Brown's] arrest" until 7:00 a.m. on December 14,

1999. She stated that the couple shared the car and a van. She

- 3 - remembered "driving the car on the 13th" and that Brown had not

been in the car on that particular day. She continued "to have

possession of the car up until the time [she] went to work."

Seward identified the gun as hers. She testified that she

had the gun with her when she drove to work on December 13, and

had "left it in the console" as she worked. She described

pulling the lid up on the console box, putting the gun inside

and closing it. She left the gun in the console "when [she] got

out of the car on the morning of the 14th of December."

According to Seward, she did not tell Brown that the gun was in

the console and he had no reason to know it was there.

On cross-examination, Seward was asked about the

Lawrenceville Correctional Center's policy "to not allow guns on

their property." Brown promptly objected to the question, to

which the Commonwealth's attorney responded: "it goes directly

to her credibility." The Commonwealth was permitted to

continue, the trial court stating: "I think it goes to her

credibility."

Seward testified that in violation of her employer's

policy, she transported the gun to work on the evening of

December 13, 1999, "forgetting that it was in [the car] when I

took it to work."

Seward's testimony was otherwise unimpeached, and no

evidence was offered as to her reputation for truthfulness in

- 4 - the community. Seward testified, without contradiction, that

she and Brown had severed their personal relationship prior to

the trial.

ANALYSIS

On appeal, the issue is whether the trial court erred in

allowing the Commonwealth to conduct that part of the

cross-examination of Brown's girlfriend that reflected a

violation of her employer's firearms policy the night preceding

Brown's arrest. Brown contends Seward's violation of policy at

her place of employment was a collateral, irrelevant issue to

the case and it was improper for the Commonwealth to impeach her

testimony by addressing it.

The trial court possesses broad discretion regarding the

examination of witnesses, and its decisions thereon can be

overturned only for an abuse of discretion. See Drumgoole v.

Commonwealth, 26 Va. App. 783, 787, 497 S.E.2d 159, 161 (1998).

"The scope of cross-examination in general, and the extent of

testimonial impeachment in particular, are left to the sound

discretion of the trial court and are not subject to review

unless plainly abused." Scott v. Commonwealth, 18 Va. App. 692,

693-94, 446 S.E.2d 619, 619 (1994) (citations omitted).

Brown testified that he had no knowledge of the gun's

presence in his car prior to its discovery by Officer Hill.

Officer Hill, however, testified that Brown, at the scene of the

- 5 - traffic stop, acknowledged knowing the gun was in the car and

admitted to moving the gun from under the driver's seat to the

console prior to the search. Thus, the evidence was in conflict

as to Brown's knowledge of the presence of the gun in the car.

To lend credit to his version of the gun's presence, Brown

called Seward as a witness. She testified that she placed the

gun in the car prior to driving the vehicle to work the night

before and did not tell Brown. Whether Seward acted as she

testified was relevant to the issue of whether Brown knowingly

possessed the firearm. Yet, the Commonwealth did not employ

cross-examination to attack the witness' recollection, but

rather the questioning regarding an alleged prior bad act went

to Seward's credibility. To allow the Commonwealth to proceed

in this fashion was error.

Evidence of specific acts of misconduct committed by a

witness is generally not admissible in Virginia to impeach the

witness' credibility. Clark v. Commonwealth, 202 Va. 787,

789-90, 120 S.E.2d 270, 272 (1961). Only when such evidence is

relevant to show bias or motivation to fabricate should the

evidence of specific acts of misconduct to impeach a witness be

admitted. Banks v. Commonwealth, 16 Va. App. 959, 962-63, 434

S.E.2d 681, 683-84 (1993). Otherwise, a witness may not be

cross-examined regarding any fact irrelevant to the issues on

trial when that cross-examination is for the mere purpose of

- 6 - impeaching his or her credibility. Seilheimer v. Melville, 224

Va. 323, 326-27, 295 S.E.2d 896, 898 (1982) (citing Allen v.

Commonwealth, 122 Va. 834, 842, 94 S.E. 783, 785-86 (1918));

Maynard v. Commonwealth, 11 Va. App. 437, 444, 399 S.E.2d 635,

640 (1990); see also Charles E. Friend, The Law of Evidence in

Virginia § 4-3 (5th ed. 1999).

The cross-examination of Seward regarding a violation of

her employer's policy was irrelevant to the issue of whether

Brown knowingly possessed the firearm. Whether Seward was aware

of her employer's policy prohibiting firearms on its premises

and whether she failed to comply with this prohibition was a

collateral matter. "A subject is collateral to the issues on

trial unless the party cross-examining the witness is entitled

to prove the subject in support of his or her own case."

Simpson v. Commonwealth, 13 Va. App. 604, 607, 414 S.E.2d 407,

409 (1992) (citing Seilheimer, 224 Va. at 327, 295 S.E.2d at

898). If a fact cannot be established for any purpose other

than for contradiction, it is wholly collateral to the issues on

trial. Id. Seward's testimony elicited on cross-examination

should have been excluded. See Clark, 202 Va. 787, 120 S.E.2d

270 (disputed examination was directly about irrelevant,

independent bad acts with no nexus to the witness' bias or

reliability of memory, and the trial court correctly excluded

the evidence).

- 7 - We are not persuaded by the Commonwealth's argument that

our decision in Banks permits the disputed cross-examination.

In Banks, 16 Va. App. 959, 434 S.E.2d 681, the trial court

prohibited the defendant from cross-examining an undercover

police officer (who had testified as a witness for the

prosecution) as to the officer's alleged illegal activities

during his investigation of the defendant that led to the

charges at trial. We held the trial court erred in prohibiting

the cross-examination as the evidence was relevant to show that

the witness was biased or had a motive to fabricate his

testimony. The evidence, therefore, was not a collateral issue

to the trial as it went to whether the witness was biased or

motivated by self-interest in the particular case. Id. at

963-64, 434 S.E.2d at 683-84. In the case at bar, there is no

evidence that the cross-examination in question concerned

Seward's bias or motivation to fabricate her testimony.

The evidence concerning Seward's prior bad acts was

irrelevant to the issues at trial and should not have been

admitted. From the record we cannot hold that the error was

harmless. Seward's credibility was challenged, and we cannot

say the challenge did not affect whether the trier of fact

believed her direct testimony, which went to whether Brown

knowingly possessed the firearm. Accordingly, we reverse

- 8 - Brown's conviction and remand this matter for a new trial if the

Commonwealth be so advised.

Reversed and remanded.

- 9 -