Lockhart v. Commonwealth

Coleman, J.,

dissenting.

In my opinion, the trial judge did not abuse his discretion by allowing the Commonwealth to present evidence in order to correct the false impression that the defendant had purposefully created. See Lewis v. Commonwealth, 7 Va. App. 596, 602, 376 S.E.2d 295, 298, aff'd en banc, 8 Va. App. 574, 383 S.E.2d 736 (1989). The judge’s ruling was proper in order to prevent the defendant from misleading the jury. Although Judges Koontz and Barrow agree that the trial judge erred, they do so for different reasons. I respectfully disagree with the reasons relied upon by both of my colleagues. Accordingly, I dissent and would affirm Lockhart’s conviction.

Judge Koontz reverses because, in his view, Lockhart did not “open the door” to evidence that an informant had bought drugs from Lockhart after March 7, 1991, when his counsel asked the arresting officer on cross-examination whether he had found drugs on Lockhart after the officer had stopped him on other occasions prior to March 7, 1991. In Judge Koontz’s view, applying a narrow and complex “open the door” formula, the trial judge erred by ruling that an “open the door” rationale applied to this situation and by allowing the Commonwealth to present evidence of Lockhart’s prior drug transactions.

In my view, Lockhart “voluntarily, and with the quite manifest purpose of improving his standing with the jury, put in issue” whether he previously had possessed drugs and, therefore, he cannot “object to a full cross-examination upon those facts.” Harris *275v. Commonwealth, 129 Va. 751, 753-54, 105 S.E. 541, 542 (1921). “[T]he clear purpose of [Lockhart’s eliciting] the . . . testimony was to create an impression in his favor, which the Commonwealth was justified in rebutting.” Locke v. Commonwealth, 149 Va. 447, 451-52, 141 S.E. 118, 120 (1928). Even though the Commonwealth’s attorney perhaps should have objected to Lock-hart’s evidence, Lockhart attempted to create a false impression that, as far as the police knew, he had no prior involvement with drugs. By interjecting this issue in the case, Lockhart made material and admissible the Commonwealth’s evidence that he had sold drugs to an informant after March 7, 1991.

Furthermore, Lockhart’s effort to limit the evidence of his drug activity to before March 7, 1991, does not limit the permissible scope of the Commonwealth’s rebuttal evidence on the same subject. “Cross-examination on a part of a transaction enables the opposing party to elicit evidence on redirect examination of the whole transaction at least to the extent that it relates to the same subject.” Briley v. Commonwealth, 221 Va. 532, 540, 273 S.E.2d 48, 53 (1980), cert. denied, 451 U.S. 1031 (1981).

The Virginia cases on this subject, which Judge Koontz cites, uniformly have held that where a defendant attempts to present evidence intended to mislead the fact finder, the Commonwealth is entitled to rebut the false impression created by this evidence. See Harris, 129 Va. at 753-54, 105 S.E. at 542; Locke, 149 Va. at 451-52, 151 S.E. at 120; Harmon v. Commonwealth, 212 Va. 442, 445, 185 S.E.2d 48, 51 (1971); Wilson v. Commonwealth, 225 Va. 33, 39, 301 S.E.2d 1, 3 (1983).

Despite Judge Koontz’s effort to distinguish the Harris, Locke, Briley, and Lewis decisions from Lockhart’s situation on the basis of whether evidence that Lockhart originally introduced was admissible or inadmissible, none of the Virginia cases draw or mention any such distinction. Judge Koontz would adopt the rationale from the case of Clark v. State, 629 A.2d 1239 (Md. 1993), decided by the Maryland Court of Appeals, for the proposition that a “clear distinction [exists] between ‘opening the door’ (involving expanded relevancy) and ‘curative admissibility’ (involving fairness).” See note 2 of Judge Koontz’s opinion. I find no such dichotomy in the Virginia case law on the subject.

*276As to Judge Barrow’s reasons for reversing Lockhart’s conviction, he would hold that the trial court erred by permitting the Commonwealth to introduce impermissible character evidence of specific bad acts. I do not believe that the admissibility of character evidence was the issue before the trial judge. Thus, in my opinion, Gravely v. Commonwealth, 13 Va. App. 560, 562-64, 414 S.E.2d 190, 191-92 (1992), does not control this case. Unlike Gravely, where the defendant called character witnesses to testify and purposefully placed his good character in issue, here, Lockhart’s counsel did not introduce a character witness. Rather, on cross-examination, Lockhart questioned one of the investigating police officers about whether, at his prior encounters with Lockhart, he had ever found drugs on him. This testimony, elicited from the police officer on cross-examination, did not place Lockhart’s character in issue, but rather, it suggested to the jury that as far as this officer knew, Lockhart had not possessed drugs on other occasions. While the inquiry by Lockhart’s counsel may have been improper, Lockhart opened the door for the Commonwealth to present evidence to correct his attempt to deceive and mislead the jury.

Accordingly, I dissent.