Opinion
Record No. 0975-92-2
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY, Thomas V. Warren, Judge
Reversed and remanded.
C. David Whaley; Anthony G. Spencer (Morchower, Luxton and Whaley, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Benton and Coleman
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appealing a conviction of possession of cocaine, the defendant contends that the trial court erred in admitting evidence of marijuana found in her home during a search which uncovered the cocaine that served as the basis for her conviction. We hold that this evidence was that of another unrelated crime and was inadmissible. Accordingly, we reverse.
During a search of the defendant's home, police found cocaine residue, marijuana, and paraphernalia in various locations throughout the house. The marijuana and cocaine were found in different locations. At the time the police arrived to conduct the search, the defendant and her children were inside the home. Her husband was outside with three other men. At her trial for possession of cocaine, the court admitted evidence of the marijuana over the defendant's objection.
Evidence of a prior, similar offense is generally not admissible to prove the particular crime charged. Stockton v. Commonwealth, 227 Va. 124, 142, 314 S.E.2d 371, 382 (1984). Prior unrelated drug sales are inadmissible to prove a particular drug sale charged. See Boyd v. Commonwealth, 213 Va. 52, 52, 189 S.E.2d 359, 359-60 (1972); Donahue v. Commonwealth, 225 Va. 145, 156, 300 S.E.2d 768, 774 (1983); see also Eccles v. Commonwealth, 214 Va. 20, 22-23, 197 S.E.2d 332, 333 (1973) (holding officer's testimony that he had seen defendant smoke marijuana not admissible in trial for sale of marijuana).
To be admissible, evidence must be related and linked to the matter at issue and tend to prove an offense. Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208 (1967). Prior misconduct may be admissible against a defendant if that conduct is directly linked to an element of the current offense. Knick v. Commonwealth, 15 Va. App. 103, 105, 421 S.E.2d 479, 480 (1992). Normally, evidence of other misconduct is inadmissible except to prove certain relevant facts, such as knowledge, intent, motive, absence of mistake, or common scheme or plan. Moore v. Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824 (1981); Minor v. Commonwealth, 213 Va. 278, 280, 191 S.E.2d 825, 826-27 (1972). Evidence of prior illicit conduct may be relevant, but not necessarily admissible if its prejudicial impact outweighs its probative value. Donahue, 225 Va. at 156, 300 S.E.2d at 774.
Evidence of the presence of marijuana in the defendant's home did not tend to prove an issue at trial. The presence of marijuana in the defendant's home did not make it more or less likely that the defendant possessed the cocaine found there, except to the extent that it showed her propensity to possess illegal contraband. A propensity to commit crime, however, may not be the basis for concluding that one has committed a crime, and evidence of propensity to commit crime is, therefore, inadmissible. Robinson v. Commonwealth, 13 Va. App. 574, 579, 413 S.E.2d 885, 888 (1992).
Evidence that the defendant knew of the presence of marijuana in the house does not tend to establish, without more, that she also knew that cocaine was in the house. The police found the marijuana and the cocaine in different locations. Only if additional evidence had permitted one reasonably to infer from her knowledge of the presence of marijuana that she also knew of the presence of the cocaine would evidence of the presence of the marijuana be admissible. See Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990) (en banc) (inferring knowledge from evidence of defendant's luggage in automobile trunk with "three huge bags of marijuana"). Without additional evidence permitting such an inference, evidence of the presence of marijuana impermissibly showed only the defendant's propensity to possess controlled substances.
In Wymer v. Commonwealth, 12 Va. App. 294, 403 S.E.2d 702 (1991), a panel of this Court held that evidence of marijuana and associated paraphernalia was admissible to prove the possession of cocaine found in the same location. That case differs from this one. In that case, marijuana residue in a bottle was found in the same bag as that in which cocaine was found along with memorabilia belonging to the defendant. Id. at 297, 403 S.E.2d at 705-05. Also, devices suitable for smoking either marijuana or cocaine were found where the cocaine was found. Id. at 301, 403 S.E.2d at 707.
In this case, however, the marijuana was found in locations different from those where the cocaine was found. The police found residue of cocaine in four plastic bags in a canister in the kitchen, on a spoon on top of a dresser in the master bedroom used by the defendant and her husband, and on a spoon in a cigar box in the top drawer of a dresser in the master bedroom. The marijuana was found in a canister in the living room and in a paper box top on a table in the corner of the master bedroom.
Following the search, the defendant denied knowing about the cocaine and admitted to the police that the "marijuana pipes were hers." However, no marijuana pipes were admitted into evidence. The evidence revealed no connection between the marijuana and the cocaine, except that they were found in the same house, occupied by the defendant and others, or, in one instance, in the same room, occupied by the defendant and her husband. Evidence of the marijuana did not tend to prove that the defendant knew of the presence of the cocaine, as the panel concluded in Wymer.
The evidence of the presence of marijuana in the defendant's home was not so intertwined with the evidence relating to the charge of possession of cocaine that the latter could not have been proven without revealing the former. The police found marijuana in a different location from the cocaine; however, even had it been in the same location, the prosecution would have been able to prove the presence of cocaine without having to prove the presence of marijuana. Thus, it was not necessary to prove the presence of the marijuana in order to prove the presence of the cocaine which the defendant was charged with possessing.
Furthermore, the admission of the evidence of the presence of marijuana was not harmless because the jury may have incorrectly inferred from the presence of marijuana in the home that the defendant had a propensity to possess illegal contraband and, therefore, possessed the cocaine with which she was charged. The admission of other evidence relating to the marijuana did not cause this erroneously admitted evidence to become harmless. A reference to it on the laboratory analysis of the cocaine did not describe where the marijuana was obtained and gave the jury considerably less opportunity to draw an inappropriate inference from it. The defendant's later testimony that she used marijuana to ease back pain also did not render the earlier error harmless because she was entitled to attempt to rebut or explain the improperly admitted evidence without waiving her earlier objection. See McGill v. Commonwealth, 10 Va. App. 237, 244, 391 S.E.2d 597, 601 (1990).
We, therefore, conclude that the admission of the evidence of the presence of marijuana found in the defendant's home was error requiring the reversal of her conviction; therefore, we remand for a new trial. We need not address other issues raised in this appeal because upon remand they may not reoccur.
Reversed and remanded.
In my opinion, our decision in Wymer v. Commonwealth, 12 Va. App. 294, 403 S.E.2d 702 (1991), controls our holding in this case and dictates that we affirm Hayer's conviction for possession of cocaine. The trial court did not err by admitting into evidence in Hayer's prosecution for possessing cocaine the fact that marijuana and other drug paraphernalia were found throughout Hayer's residence in locations where the cocaine was found, or by admitting Hayer's admission that she knowingly possessed the marijuana and marijuana pipe. Evidence that Hayer knowingly possessed other drugs and paraphernalia found at the same time and same location as the cocaine for which she was being prosecuted was relevant because it tended to prove that Hayer knew of the presence of the cocaine and was exercising dominion and control of it. Accordingly, I respectfully dissent.
The issue before the trial court was whether evidence that Sandra Hayer knowingly possessed marijuana and drug paraphernalia which she kept at various locations in a residence that she occupied with her husband and children is relevant to show that she knowingly possessed cocaine and other related paraphernalia found in the house at the same time as the marijuana. On strikingly similar facts, a panel of this Court in Wymer, which was a prosecution for possession of cocaine, upheld the admission into evidence of marijuana and related items seized at various locations in a search of Wymer's house. We held the evidence was relevant to prove that Wymer knowingly possessed the cocaine in her house and the cocaine residue found in her purse. In explaining the relevance of admitting evidence of the possession of uncharged drugs to prove knowing possession of the cocaine, the panel said,
The bent straw with cocaine residue found in her purse along with the paraphernalia used to consume marijuana are sufficiently related to the items found in or on appellant's dresser and are additional facts which permitted the fact finder to infer that appellant knew of the presence of cocaine. . . . All the evidence admitted [which included marijuana and paraphernalia for using it] tends to prove appellant's awareness of the cocaine found in her purse and house, and was admissible to prove an essential issue before the trial court.
"Where a course of criminal conduct is continuous and interwoven, consisting of a series of related crimes, the perpetrator has no right to have the evidence 'sanitized' so as to deny the jury knowledge of all but the immediate crime for which he is on trial . . . even though [it] may show the defendant guilty of other offenses."
Id. at 301, 403 S.E.2d at 707 (quoting Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984)) (emphasis added).
The rule enunciated in Wymer, that the presence of other drugs is admissible as a factor tending to show knowledge of the presence of the charged drug, is clearly the rule followed in most jurisdictions. See, e.g., State v. Scott, 400 S.E.2d 784, 786 (S.C.Ct.App. 1991) (marijuana found by police in defendant's residence following his arrest admissible to prove the defendant knowingly possessed cocaine on his person); Elliott v. State, 310 S.E.2d 758, 763 (Ga.Ct.App. 1983) (evidence of marijuana found in defendant's home was admissible where defendant was charged with possession of other controlled substances); United States v. Noibi, 780 F.2d 1419, 1421-22 (8th Cir. 1986) (possession of marijuana and other drug paraphernalia admissible to show knowing possession of heroin); United States v. Brooks, 670 F.2d 625, 628-29 (5th Cir. 1982) (evidence that defendant knew he possessed marijuana was admissible to show knowing possession of cocaine).
The evidence in Hayer's case showed that when the officers searched her residence and found the marijuana and cocaine, she admitted that the marijuana and pipe were hers. She denied, however, knowing about the cocaine. Hayer's acknowledgment that cocaine had been seized in the search, combined with her admission that she possessed the marijuana and pipe, were highly relevant facts that tend to establish that she knowingly possessed the cocaine that had been found at various places in her residence. Her admission that the marijuana was hers was particularly relevant because part of the marijuana she admitted possessing had been found in the master bedroom where a metal spoon containing cocaine residue and a plastic syringe were lying on the dresser, and a second spoon with residue, a cotton ball, and six plastic syringes in a box were in the dresser drawer. The presence and location of multiple drugs and paraphernalia throughout the house are relevant facts to prove whether an occupant, who admitted possessing one drug, knowingly possessed some or all of the other drugs. Although I would not find the majority's factual distinction between this case and Wymer to be controlling, I disagree with the majority that the marijuana and cocaine were in different locations.
I respectfully disagree with the majority that this decision is controlled by the Donahue/Eccles/Boyd trilogy of cases. Those cases hold that prior unrelated drug offenses are inadmissible to prove an element of the charged offense. In those cases, no common thread tied the two drug offenses together so that the facts in one had no meaningful relevance to proving a material fact in the charged offense. Here, the two offenses are not "unrelated." The cocaine and marijuana were located in close proximity. The residence was occupied by the accused, her spouse, and her child. The offenses are not unrelated because the cocaine and marijuana were located throughout the same residence and in some of the same locations. It is for these reasons that admitted or proven possession of one drug has some tendency to prove knowing possession of the other drug, especially when the two are located in close proximity to one another. To exclude the evidence that the officers found Hayer's marijuana and paraphernalia for using it at various places throughout the house and in close proximity to where cocaine and paraphernalia for using it were found would deprive the jury of meaningful evidence as to whether Hayer knowingly possessed cocaine. To exclude evidence that Hayer admitted possessing the marijuana and marijuana pipe would paint an inaccurate and misleading picture of the evidence that tends to show she knowingly possessed the cocaine.
Accordingly, I would uphold the ruling of the trial judge admitting into evidence that marijuana and paraphernalia were seized and that Sandra Hayer admitted that they belonged to her. Because the majority's decision will require a remand and retrial, I find it unnecessary to address the remaining issues raised by the appellant other than to note that the only issue that raises any concern to me is whether the appellant knowingly and intelligently waived counsel. That issue will become moot upon remand.