Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
KYNA CHANELLE McGOWAN
OPINION BY
v. Record No. 062482 JUSTICE LAWRENCE L. KOONTZ, JR.
November 2, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, the sole issue we consider is whether the
trial court erred in admitting evidence of a subsequent crime
committed by the criminal defendant for the purpose of
impeaching the credibility of the defendant’s testimony during
cross-examination.
BACKGROUND
Kyna Chanelle McGowan (McGowan) was indicted, as a
principal in the second degree, for unlawfully and feloniously
distributing cocaine on March 4, 2004 in the City of Hampton.
Thereafter, she was tried and found guilty of that offense in
a jury trial conducted in the Circuit Court of the City of
Hampton, and sentenced to five years imprisonment with a
$5,000 fine.
We state the evidence taken at trial in the light most
favorable to the Commonwealth, the prevailing party below.
Teleguz v. Commonwealth, 273 Va. 458, 467, 643 S.E.2d 708, 714
(2007). On March 4, 2004, James McCoy (McCoy), a confidential
informant working for the Hampton Police Department’s Special
Investigations Unit, conducted a controlled buy of crack
cocaine as part of a local drug interdiction program. After
driving to a particular shopping center known to be in a
“high-drug area,” McCoy was approached by Saroyal Booker
(Booker), who asked McCoy whether “he was looking.” McCoy
responded that he wanted a “20 rock.” Booker then instructed
McCoy to follow her because her “girl [was] across the street
at McDonald’s.”
Upon arriving at the McDonald’s parking lot, McCoy
watched as Booker approached and spoke with McGowan. McCoy
continued his observation as McGowan reached under her shirt
and handed something to Booker. Booker then returned to McCoy
and handed him two rocks of crack cocaine in exchange for
twenty dollars. Booker then walked over to McGowan, and
again, a transaction occurred.
On July 13, 2004, McGowan was arrested pursuant to the
indictment charging her for distribution of cocaine on March
4, 2004. At that time, Hampton Police Detective Christine
Saunders conducted a search incident to arrest, during which
McGowan “turned her back, reached down into her bra and handed
[the Detective] two items . . . wrapped in small pieces of
plastic.” Detective Saunders believed these items to be crack
cocaine.
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Prior to trial, the Commonwealth moved the trial court in
limine to allow it to introduce evidence of the suspected
crack cocaine found in McGowan’s possession on the day of her
arrest. The court denied the motion with respect to the
introduction of the evidence in the Commonwealth’s case-in-
chief. However, the court expressly reserved ruling as to
whether the Commonwealth could introduce that evidence in
rebuttal.
McGowan chose to take the stand during the ensuing jury
trial, denying any knowledge of, and participation in, the
March 4, 2004 drug sale. McGowan maintained that she had
removed money from her bra and given it to Booker, her friend,
to buy a meal at the McDonald’s restaurant. During cross-
examination, McGowan testified that she “wouldn’t know crack
cocaine if [she] saw it.” In an attempt to impeach McGowan’s
statement, the Commonwealth then asked “[s]o when you were
arrested on July 13, 2004, did you have any crack cocaine on
your person?” Over defense counsel’s objection, the trial
court allowed similar questioning to proceed, to which McGowan
denied possessing crack cocaine on July 13, 2004. The court
reasoned that, because McGowan had not objected to initial
questions concerning her lack of knowledge of crack cocaine,
she had thus “opened the door” to the evidence of her later
possession of the drug on July 13, 2004. The Commonwealth
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then elicited the testimony of Detective Saunders regarding
the arrest and search of McGowan on July 13, 2004, for the
purpose of rebutting McGowan’s testimony.
At the conclusion of the introduction of the evidence,
the trial court gave a limiting instruction directing the jury
to consider the July 13, 2004 incident “only as evidence of
the defendant’s intent, opportunity or as evidence of the
absence of mistake or accident on the part of the defendant in
connection with the offense for which she is on trial.” When
the proceedings in the trial court were concluded, McGowan
pursued an appeal of her conviction in the Court of Appeals.
The Court of Appeals affirmed McGowan’s conviction in a
divided en banc decision, holding that “[t]he trial court
properly admitted the evidence of McGowan’s subsequent
possession of cocaine in order to prove her knowledge of
cocaine, as well as to impeach her credibility.” McGowan v.
Commonwealth, 48 Va. App. 333, 344, 630 S.E.2d 758, 764
(2006). This appeal followed.
DISCUSSION
The thrust of the Commonwealth’s position is that McGowan
“opened the door” to evidence of other crimes when she
testified during cross-examination that she had no knowledge
of cocaine. See Satcher v. Commonwealth, 244 Va. 220, 251-52,
421 S.E.2d 821, 840 (1992) (denial of complicity in crime by
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witness opens the door for questions on cross-examination
relevant to issue of guilt or innocence). The Commonwealth
does not contend that the evidence of McGowan’s possession of
crack cocaine when she was arrested on July 13, 2004 was
admissible in its case-in-chief to prove that McGowan had the
requisite knowledge of cocaine on March 4, 2004 as charged in
the indictment.
Indeed, in accord with this Court’s well-established
precedent addressing the inadmissibility of evidence of other
crimes to prove the crime presently charged, there is no
challenge to the trial court’s denial of the Commonwealth’s
motion in limine with regard to that issue. See generally,
Kirkpatrick v. Commonwealth, 211 Va. 269, 176 S.E.2d 802
(1970). Likewise, there is no dispute that in order to
convict McGowan of the charged offense, the Commonwealth had
the burden of proving that McGowan had knowledge of the nature
and character of the substance involved in the alleged
distribution on March 4, 2004. See Burton v. Commonwealth,
215 Va. 711, 713, 213 S.E.2d 757, 759 (1975) (Commonwealth
must prove that defendant possessed drug with knowledge of its
nature and character). Thus, the sole focus of our analysis
here is whether, under the particular circumstances of this
case, the Commonwealth was properly permitted to introduce
evidence of another crime during its cross-examination of
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McGowan and during rebuttal testimony in order to establish an
essential element of the crime charged.
In Guill v. Commonwealth, 255 Va. 134, 495 S.E.2d 489
(1998), we held that:
Evidence that shows or tends to show a defendant has
committed a prior crime generally is inadmissible to
prove the crime charged. Such evidence implicating
an accused in other crimes unrelated to the charged
offense is inadmissible because it may confuse the
issues being tried and cause undue prejudice to the
defendant.
Id. at 138, 495 S.E.2d at 491 (internal citations omitted).
There are several exceptions to this rule. “Evidence of
‘other crimes’ is relevant and admissible if it tends to prove
any element of the offense charged. Thus, evidence of other
crimes is allowed when it tends to prove motive, intent, or
knowledge of the defendant.” Id. (citing Kirkpatrick, 211 Va.
at 272, 176 S.E.2d at 805) (emphasis omitted).
However, in order for evidence of the defendant’s other
crimes to be admissible under the “knowledge of the defendant”
exception, its tendency to produce prejudice must not outweigh
its probative value. See Coe v. Commonwealth, 231 Va. 83, 87,
340 S.E.2d 820, 823 (1986). We have held in this regard that
“[e]vidence of collateral facts or those incapable of
affording any reasonable presumption or inference on matters
in issue, because [they are] too remote or irrelevant, cannot
be accepted in evidence.” Bunting v. Commonwealth, 208 Va.
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309, 314, 157 S.E.2d 204, 208 (1967). Accordingly, “ ‘[t]he
test as to whether a matter is material or collateral, in the
matter of impeachment of a witness, is whether . . . the
cross-examining party would be entitled to prove it in support
of his case.’ ” Stottlemyer v. Ghramm, 268 Va. 7, 12, 597
S.E.2d 191, 193 (2004) (quoting Allen v. Commonwealth, 122 Va.
834, 842, 94 S.E. 783, 786 (1918)). Therefore, when “ ‘the
circumstances [of the other event] have no intimate connection
with the main fact; if they constitute no link in the chain of
evidence . . . they ought to be excluded.’ ” Guill, 255 Va.
at 139, 495 S.E.2d at 492 (quoting Walker v. Commonwealth, 28
Va. (1 Leigh) 574, 577 (1829)). Evidence that relates to a
separate offense for which the defendant is not currently
standing trial, and which cannot be used for any purpose other
than for impeachment of the defendant, is certainly collateral
to the main issue. Cf. Seilheimer v. Melville, 224 Va. 323,
327, 295 S.E.2d 896, 898 (1982).
Notwithstanding these principles, it is well settled
that, “[e]very criminal defendant is privileged to testify
in his own defense, or to refuse to do so. But that
privilege cannot be construed to include the right to commit
perjury.” Harris v. New York, 401 U.S. 222, 225 (1971).
Clearly, a criminal defendant such as McGowan cannot expect
to make a misleading statement to the jury without also
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“open[ing] the door to cross-examination for the purpose of
attacking [her] credibility.” Santmier v. Commonwealth, 217
Va. 318, 319-20, 228 S.E.2d 681, 682 (1976). Under our
jurisprudence however, the cross-examiner is bound by the
answer given, and cannot introduce any extrinsic evidence to
otherwise contradict the witness. Allen, 122 Va. at 841, 94
S.E. at 785. Thus, “the answer of the witness will be
conclusive; [she] cannot be asked as to any collateral
independent fact merely with a view to contradict [her]
afterwards by calling another witness.” Id. at 842, 94 S.E.
at 786.
Applying these principles to the facts in this case, we
are of opinion that the trial court erred in permitting the
Commonwealth to introduce evidence of McGowan’s alleged
possession of crack cocaine on July 13, 2004, during the
trial for the March 4, 2004 distribution of cocaine.
Assuming, as we must from the record, that the substance
recovered during the search of McGowan on July 13, 2004 was
in fact crack cocaine, evidence of McGowan’s possession of
that substance was evidence of another crime. The July 13,
2004 crime was committed subsequent to the crime charged,
and had little, if any, tendency to prove that McGowan had
knowledge of cocaine on March 4, 2004. This evidence was
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therefore unduly prejudicial and inadmissible in the
Commonwealth’s case-in-chief.
Moreover, while the Commonwealth had the right to
cross-examine McGowan with regard to her knowledge of crack
cocaine after she chose to testify on her own behalf, the
Commonwealth was not permitted through the testimony of
Detective Saunders to offer clearly prejudicial evidence of
another crime to rebut McGowan’s testimony. The
Commonwealth cannot be allowed to essentially smuggle into
evidence during its cross-examination of a defendant proof
of another crime not admissible in its case-in-chief, which
is not only highly inflammatory and misleading to a jury,
but lacking in serious probative value as well. To hold
otherwise would, as the dissent in the Court of Appeals
aptly noted, allow the exception to swallow the rule
prohibiting evidence of other crimes in drug-related cases.
McGowan, 48 Va. App. at 347, 630 S.E.2d at 765 (Frank, J.,
dissenting).
CONCLUSION
For these reasons, we conclude that the Court of Appeals
erred in holding that the trial court properly admitted the
evidence of McGowan’s subsequent possession of cocaine in
order to prove her knowledge of cocaine on March 4, 2004, as
well as to impeach her credibility. Accordingly, we will
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reverse the judgment of the Court of Appeals and remand this
case to that Court with instructions that the case be remanded
to the trial court for a new trial, if the Commonwealth be so
advised.
Reversed and remanded.
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