Michael Edward Mills v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
MICHAEL EDWARD MILLS OPINION BY
v. 	Record No. 2926-95-3 	JUDGE SAM W. COLEMAN III
MARCH 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
William P. Sheffield for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief) for appellee.
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

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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.

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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 larceny1
(one year and a $1,000 fine); speeding ($200.00 fine); improper
1 Because we reverse and remand all the convictions, we do
not address whether the trial court erred by reassembling the
jury to correct the sentence of "one year" for the petit larceny
conviction.

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registration ($200.00 fine); driving while under the influence of
alcohol and drugs (12 months and a $2500 fine); driving on a
suspended license (6 months and a $1,000 fine); resisting arrest
(6 months and a $1,000 fine); and disregarding a signal to stop
by a law-enforcement officer (12 months and a $2,500 fine).
The sole issue is whether the trial court erred by refusing
to grant a mistrial after the Commonwealth's principal witness
interjected incompetent and inadmissible evidence into the trial
during cross-examination. 	Generally, a trial court may cure
errors arising from inadmissible evidence being improperly
presented by promptly instructing the jury to disregard the
inadmissible evidence. 	LeVasseur v. Commonwealth, 225 Va. 564,
589, 304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063
(1984); Lewis v. Commonwealth, 211 Va. 80, 83, 175 S.E.2d 236,
238 (1970). 	Juries are presumed to follow prompt, explicit,
curative instructions from the trial judge. 	LeVasseur, 225 Va.
at 589, 304 S.E.2d at 657.
"Whether improper evidence is so prejudicial as to require a
mistrial is a question of fact to be resolved by the trial court
in each particular case." 	Beavers v. Commonwealth, 245 Va. 268,
280, 427 S.E.2d 411, 420 cert. denied, 510 U.S. 859 (1993).
Thus, a trial court's denial of a motion for a mistrial will not
be reversed on appeal unless there exists a manifest probability
as a matter of law that the improper evidence prejudiced the
accused. 	See e.g., id.; Coffey v. Commonwealth, 188 Va. 629,

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636, 51 S.E.2d 215, 218 (1949). 	"The exception to this rule is
that the admission of incompetent evidence is reversible error
notwithstanding the fact that the trial court, after its
admission, instructed the jury to disregard it, if such illegal
evidence was so impressive that it probably remained on the minds
of the jury and influenced their verdict." 	Asbury v.
Commonwealth, 211 Va. 101, 106, 175 S.E.2d 239, 241 (1970).
"[I]f the prejudicial effect of the impropriety cannot be removed
by the instructions of the trial court, the defendant is entitled
to a new trial." 	Lewis, 211 Va. at 83, 175 S.E.2d at 238.
Whether a manifest probability exists that the improper
evidence prejudiced the accused despite the cautionary
instruction depends upon the nature of the incompetent evidence
when considered in relation to the nature of the charges, the
other evidence in the case, and manner in which the prejudicial
evidence was presented. 	Here, the trooper's testimony concerning
the "needle marks" was totally unresponsive to the question asked
him and was irrelevant and highly prejudicial. 	The statement
that the defendant had "needle marks" on his arm was particularly
prejudicial in relation to the charges of driving while under the
influence of alcohol and drugs, resisting arrest, and
disregarding the signal to stop by a law-enforcement officer.
The obvious import of the officer's testimony was to cast the
defendant as a hard drug user or addict, which would in the minds
of the jury render more egregious the competent evidence against

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the defendant. 	Merely instructing the jury to disregard the
trooper's statements could not erase the prejudicial effects the
remarks had on the jury. 	Moreover, it is apparent in light of
the state trooper's experience, that when defense counsel
objected, the trooper intentionally or otherwise compounded the
prejudice by immediately interjecting that he had photographs
showing the needle marks.
Nothing in the record suggests that the Commonwealth's
attorney anticipated or countenanced the state trooper's actions.
Nevertheless, the prejudice was caused by the Commonwealth's
principal witness, and no matter how outrageous the defendant's
criminal conduct may have been, the prejudice could not be
harmless. 	Although evidence of the defendant's guilt was
overwhelming, we cannot say that the prejudicial evidence did not
affect the length of the sentences or the amount of fines that
the jury recommended and the judge imposed. 	Thus, the error was
not harmless.
In summary, we hold that the trial judge's admonition to the
jury did not cure or erase the prejudice that was caused by the
trooper's incompetent evidence. 	Accordingly, we reverse and
remand to the trial court for such further action as the
Commonwealth deems appropriate.
Reversed and remanded.