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Mills v. Commonwealth3/25/1997
Argued at Salem, Virginia
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
In this appeal from conviction of multiple traffic infractions and other misdemeanors, we hold that the trial Judge's admonition for the jury to disregard a portion of the arresting officer's testimony did not remove the prejudice caused by the officer's introduction of incompetent evidence. The police officer, who gave a totally unresponsive answer to a question posed to him, purposefully interjected that the defendant, when arrested, had "needle marks on his arm" and that he had "photographs to prove it." The officer's testimony had the inevitable, if not intended, consequence of portraying the defendant as a drug addict, thereby inflaming the passions of the jury against the defendant. Although the trial Judge's admonition to the jury was prompt and precise, in the context of this case, it could not overcome the prejudice to the defendant caused by the officer's statements. Accordingly, we reverse the convictions and remand the case to the trial court.
Following an eight to ten mile high-speed chase that began in Abingdon and continued into Washington County, the defendant drove his car behind a private residence in an effort to evade the state trooper. In doing so, the defendant wrecked his car and attempted to flee on foot but was apprehended when his pants fell to his knees. During the chase, the defendant refused to stop for the trooper's siren and blue light and he also attempted to wreck the trooper's patrol car. After apprehending the defendant, the officer determined that the license plate on defendant's vehicle was not registered to it and that the defendant's operator's license had been suspended.
Upon arresting the defendant for speeding, improper registration, driving on a suspended license, resisting arrest, and disregarding an officer's light and siren, the trooper observed an odor of alcohol coming from the defendant and noticed that he slurred his words. Thus, the officer also charged the defendant with driving under the influence of alcohol or drugs. The resulting blood test showed that the defendant had a blood alcohol content of .08 percent and tested positive for marijuana. Incidental to the arrest, another officer inventoried the defendant's vehicle and discovered more than nine cartons of cigarettes which had been recently stolen from a local store. The defendant was then charged with petit larceny.
At trial, the following exchange occurred between defense counsel and the state trooper:
"Q. Okay. And you said you noticed an odor of alcohol about him?"
"A. Yes, I did."
"Q. Did he say anything?"
"A. I don't recall what he said at this time. The field sobriety test was made available to him and he was arrested. And it appeared from his arms that he had needle marks."
"[DEFENSE COUNSEL]: We object to that, if your honor please, and move for a mistrial."
"WITNESS: I've got a photograph here showing the condition of his arms if you'd like to introduce it."
"THE COURT: Objection sustained. Strike the last comment, members of the Jury, and disregard the last comment made by the witness. Motion for mistrial denied."
The trooper was a veteran officer with the Virginia State Police for ten and one-half years, had been with the Division of Motor Vehicles for fifteen years, and had been a truck weight enforcement officer with the State Police for two and one-half years.
The jury convicted the defendant of each charged offense and recommended the following sentences and fines: petit larceny (one y
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