Opinion
Record No. 1509-92-1
Decided: August 30, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, John E. Clarkson, Judge
Affirmed
B. Thomas Reed for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton, Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Lawrence Wright (appellant) appeals from a judgment of the Circuit Court of the City of Norfolk (trial court) that approved a jury verdict convicting him for possession of cocaine with the intent to distribute. 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 hearsay evidence. All the hearsay evidence was contained in an affidavit which was the basis for obtaining a search warrant that led to the discovery of the evidence that supports his conviction. Finding no error, we affirm the judgment of the trial court.
On October 29 and 30, 1991, using an informant, Norfolk City Police Officer James N. Stevens (Stevens) directed controlled purchases of cocaine at 2405 Jamaica Avenue in that city. Stevens 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 shown in the affidavit to have been given by the informant to Stevens after the controlled purchases were made.
Those purchases are not at issue here. The conviction from which this appeal emanates is from the cocaine and related items found when the Jamaica Avenue residence was searched. Appellant does not contest the sufficiency of the evidence to support the conviction.
For an understanding of the trial court's ruling, it is necessary to review the relevant parts of Stevens's affidavit, which are as follows:
The affidavit is contained in the trial court's record but was not made an exhibit, nor was it shown to the jury.
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 Wright at 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.
The CI then told me that the following occured [sic] while inside 2405 Jamaica Avenue. That the CI was admitted to the residence by Lawrence Wright. That the CI told Wright that he/she wanted to purchase a quantity of suspected cocaine. Wright went to the kitchen and produced a quantity of cocaine cut up into smaller pieces. Wright selected one of the pieces and gave it to the CI in exchange for the United States Currency with prerecorded serial numbers. The CI then left the residence and returned to me. The CI is a [sic] admitted user of cocaine and is familiar with cocaine's appearance, price, packaging, and effects. The CI has told me that he/she has purchased cocaine from Lawrence Wright on numerous occasions in the past and that Lawrence Wright always has cocaine to sell. The CI has told me that the cocaine provided by Wright in the past has always provided the desired effects. The CI has also told me that in the past that Wright has gone upstairs to get cocaine to sell, and that Wright has also had the cocaine in a brown plastic pill type bottle. The CI has also told me that on occasion the CI has observed Wright with the cocaine on his person.
Pursuant to that affidavit, a search warrant was issued on October 31, 1991, and the contraband was found. In addition, $608 in paper money was found on appellant's person. Included in that $608 were the four ten-dollar bills Stevens had given the informant with which to buy the cocaine.
Discovered in appellant's presence or in the house were five small bags of cocaine, eleven other bags containing cocaine residue, a gun, ammunition, scales, a test tube as described in the affidavit, and 515 small plastic bags.
At the first trial of appellant on the charge, a mistrial was declared because the jury could not reach unanimous agreement. At that trial, the court had permitted the jury to hear the hearsay evidence contained in the affidavit. At the trial from which this appeal emanates, pursuant to a motion by the Commonwealth, the trial court ruled that appellant "may not present evidence regarding the identity of the person from whom the confidential informant purchased cocaine during the seventy two (72) hours preceding execution of the search warrant" nor could he "present evidence regarding the description of the above-described person provided by the confidential informant as received by Investigator J.N. Stevens in his affidavit for search warrant." In explaining the reason for that ruling, the trial court stated:
THE COURT: 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.
Without objection from appellant, 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. That testimony matched the statements contained in the affidavit. When Stevens was asked to relate what he was looking for under the terms of the search warrant, he replied:
A. We were looking for cocaine which is a Schedule II controlled substance, papers, books and ledgers, bearing written records of money spent to buy cocaine for resale, money taken in from the sale of cocaine and money owed for cocaine sold on credit, scales to weigh cocaine for resale, money from the sale of cocaine to include United States currency bearing Serial Numbers G36388880D, H31564150A, L58970160A, and G87268747A.
Appellant made no objection or motion to exclude that testimony as it was being related.
Stevens testified 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 also advised appellant that "he was named in the affidavit for the search warrant as the person who was selling drugs. . . ." No objection was made by appellant to that testimony. Thereafter, the Commonwealth tendered the four ten-dollar bills into evidence. They were admitted as Exhibit 13. No objection was made by appellant.
Although Stevens's testimony included hearsay references to the affidavit and, if objected to, may have been excluded, no timely objection was made as the testimony was offered. After the Commonwealth concluded its examination of Stevens, but prior to appellant's cross-examination of Stevens, appellant argued that Stevens's 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 response was that a contemporaneous objectionable would have emphasized the objectionable evidence to the jury. The trial court responded, "[I] was waiting for an objection." None was made. Counsel for appellant then stated, "[I] don't want a mistrial in this case," only the right "to show that the confidential informant described a person that Jim Stevens knows was selling drugs as being clean-shaven."
We first hold that the trial court correctly ruled that appellant could not ask Stevens to state the description the informant gave Stevens of the person from whom the informant had purchased cocaine. The response to that question would constitute inadmissible hearsay evidence. Appellant has not met his burden to show an exception to that rule. See Clark v. Commonwealth, 3 Va. App. 474, 480-81, 351 S.E.2d 42, 45 (1986), aff'd, 235 Va. 287, 367 S.E.2d 483 (1988).
We further hold that hearsay testimony admitted into evidence without objection may be considered by the fact finder as probative as any admissible evidence. See Baughan v. Commonwealth, 206 Va. 28, 30-31, 141 S.E.2d 750, 753 (1965).
Appellant specifically advised the trial court that he did not want a mistrial declared, and the hearsay evidence stated by Stevens did not itself require the trial court sua sponte to declare one.
Finally, a party who fails to make a timely objection to inadmissible hearsay evidence may not thereafter have other inadmissible hearsay admitted over the objection of his opposition. See King v. Commonwealth, ___ Va. App. ___ ___, 441 S.E.2d 704, 705 (1994).
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.
After the Commonwealth proved on direct examination of its witness that Lawrence Wright was named in the search warrant affidavit as the person who sold the cocaine, the trial judge erred in refusing to allow Wright's counsel to cross-examine that same witness to prove that the physical description of the seller of cocaine, which also was stated in the affidavit, was inconsistent with Wright's physical characteristics. The trial judge's ruling was fundamentally unfair, was contrary to rules of evidence, and was reversible error.
The record at the suppression hearing established that a police informant purchased cocaine at a residence on Jamaica Avenue on October 29 and 30. The informant described the man who sold drugs to be "clean shaven" with "light brown skin." Based upon the informant's description of the seller, Police Officer Stevens prepared an affidavit and obtained a warrant to search the residence. The day following the sale, the police searched the residence and arrested Wright. Wright was photographed on the day of his arrest, October 31. He was neither clean shaven nor light skinned.
Wright was tried for possession of cocaine with intent to distribute. Wright's defense at the trial included the claim that the description of the person who possessed and sold cocaine was consistent with his brother's physical characteristics. His brother lived at the residence where the informant purchased cocaine. The jury that considered the evidence at the first trial was unable to agree upon a verdict.
Prior to the retrial, the Commonwealth filed a written motion in limine requesting the trial judge to bar at trial Wright 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;
In its motion, the Commonwealth asserted as reasons the following:
1. the issue of the property of the search was resolved against [Wright] following a hearing on his Motion to Suppress on March 12, 1992;
2. the issues regarding identity are actually questions of law to be resolved by the judge rather than questions of fact to be resolved by the jury;
3. [Wright] is not charged with having made the sales in question; therefore, [Wright's] tactic requires the Commonwealth to prove uncharged misconduct. If the Commonwealth were to seek to prove uncharged misconduct, [Wright] would object. Fundamental fairness therefore requires that this motion be granted.
At the hearing on the motion, the Commonwealth also argued that the description contained in the warrant was hearsay. The trial judge granted the motion in limine and barred Wright from presenting evidence as requested by the Commonwealth.
At the commencement of the trial, the Commonwealth again raised the issue and asked the trial judge to enter an order. Wright's counsel again objected and stated:
My cross-examination of Investigator Stevens would simply be: "What is in your affidavit? Did you not put in your affidavit the words clean-shaven."
The trial judge ruled that the evidence was hearsay and entered an order barring the evidence.
During the trial, the Commonwealth proved by the testimony of Stevens that the police gave the informant money after recording the serial numbers and directed the informant to enter the residence on Jamaica Avenue for the purpose of purchasing cocaine. Stevens testified that following the "controlled buy," he executed an affidavit for a search warrant, went to the residence several hours later, and searched the residence for cocaine. Stevens further testified that he questioned Wright during the search. In response to the question, "What was the nature of your discussion in the bathroom," Stevens testified that he told Wright "that he 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."
Before Wright's counsel began cross-examination, he again raised the issue of the limitation on cross-examination and argued that the Commonwealth "opened the door" to permit him to question Stevens concerning the affidavit's recitation that the seller was clean shaven and light skinned. In opposing the motion, the Commonwealth's attorney did not assert that Stevens's direct testimony was inadvertent but, instead, argued that Wright's counsel failed to object that the officer's testimony was hearsay and that the remedy for that failure was not to allow further hearsay. The trial judge stated, "I don't know that there's any hearsay," and ruled that Wright's counsel was barred from examining Stevens concerning the description of the seller contained in the affidavit.
On appeal, Wright contends that because the Commonwealth proved by hearsay evidence that Wright was named in the affidavit, the trial judge erred in refusing to allow his counsel to cross-examine that same witness concerning the description of the seller contained in the affidavit. The Commonwealth argues on this appeal that Stevens's testimony that he told Wright that Wright was named in the affidavit was not hearsay. However, the Commonwealth also argues that Stevens's testimony concerning the description that he wrote in the affidavit of the seller would have been hearsay.
"Under the 'curative admissibility' doctrine, the introduction of inadmissible or irrelevant evidence by one party justifies or 'opens the door to' admission of otherwise inadmissible evidence." U.S. v. Brown, 921 F.2d 1304, 1307 (D.C. Cir. 1990). The doctrine of " 'curative admissibility' . . . allows otherwise irrelevant and incompetent evidence to repair the damage caused by previously admitted incompetent inadmissible evidence." Clark v. State, 629 A.2d 1239, 1244 (Md. 1993) (quoting 1 Wigmore on Evidence Sec. 15 (3rd ed. 1940)).
Citing King v. Commonwealth, ___ Va. App. ___ 441 S.E.2d 704 (1994), the majority states that "a party who fails to timely object to inadmissible hearsay evidence may not thereafter have other inadmissible hearsay admitted over the objection of his opposition." Nothing in King supports that proposition. In pertinent part the King opinion states that "no principle of law prevents a party from objecting to inadmissible evidence because the party has previously introduced similar, but admissible, evidence." Id. at ___, 441 S.E.2d at 705 (emphasis added). Nothing in King is contrary to the doctrine of "curative admissibility." Moreover, this Court did not sanction in King a trial practice that allowed one party to prove hearsay evidence in contravention of a trial judge's order that explicitly barred the opposing party from proving the same evidence. In addition, nothing in that case suggests that one party may use hearsay evidence and then complain when the other party requests to use that same evidence on cross-examination to impeach the witness's testimony. "It is not error to admit hearsay evidence when it serves to clarify other hearsay evidence elicited by the opposition." Martinez v. State, 749 S.W.2d 556, 559 (Tex.Crim.App. 1988).
Although the trial judge ruled, at the insistence of the Commonwealth, that Wright's counsel could not ask Stevens about the description of the drug seller contained in the affidavit, the Commonwealth proved on its direct examination of Stevens the hearsay statements "I pointed out that [Wright] was named in the affidavit for the search warrant as the person who was selling drugs." The Commonwealth does not dispute that those events occurred. To the extent necessary to remove the prejudice to Wright that flowed from the introduction of that hearsay testimony, Wright's counsel should have been allowed to prove that the description of the person identified in the affidavit was inconsistent with Wright's appearance. In refusing Wright's counsel the right to cross-examine Stevens on the inconsistent description, the trial judge denied Wright the opportunity to rebut a misleading impression that flowed from the inadmissible evidence.
Furthermore, the Commonwealth on its direct examination of Stevens put at issue the contents of the affidavit. When that was done, Wright was entitled to put on evidence to complete the context in which the document named the person who sold cocaine and described that person. It is fundamental that " '[w]hen part of a . . . transaction is put into evidence, the opposite party may rightfully call for the whole of it, although the evidence was in the first place illegal.' " Stockard v. State, 391 So.2d 1060, 1064 (Ala. 1980) (citation omitted). The evidence is clear that the officer's selective recitation of part of the affidavit had the potential to mislead because of the lack of context that arose by excluding the descriptions of "clean shaven" and "light skinned," neither of which was descriptive of Wright. See Henderson v. United States, 632 A.2d 419, 426 (D.C. 1993).
For these reasons, I would reverse the conviction and remand for a new trial.