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
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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
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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
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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
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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
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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).
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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
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Brown's conviction and remand this matter for a new trial if the
Commonwealth be so advised.
Reversed and remanded.
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