Pubdate: Fri, 09 Nov 2007
Source: Daily Press (Newport News,VA)
Copyright: 2007 The Daily Press
Contact:  http://www.dailypress.com
Details: http://www.mapinc.org/media/585
Author: Peter Dujardin

STATE SUPREME COURT REVERSES HAMPTON DRUG CONVICTION

The state's highest court says it was wrong for a  Hampton Circuit
Court judge to allow evidence about a  separate crime into a drug
dealing case.

HAMPTON - The Virginia Supreme Court has reversed a  Hampton
conviction in a cocaine distribution case,  saying a Hampton Circuit
Court judge erred in allowing  "misleading" evidence to be introduced
at a jury trial.

The state's highest court said last week that it was  wrong for Judge
William C. Andrews to allow a  prosecutor from the Hampton
Commonwealth Attorney's  office to question a defendant about a drug
possession  incident that occurred four months after the drug  dealing
charge at issue at the trial.

"The Commonwealth cannot be allowed to essentially  smuggle into
evidence during its cross examination ...  proof of another crime not
admissible in its  case-in-chief," the state's highest court said in
the  Nov. 2 ruling.

Kyna Chanelle McGowan was found guilty and sentenced to  five years in
prison for distributing cocaine in March  2004.

While on the witness stand, McGowan testified that she  "wouldn't know
crack cocaine if she saw it." But during  a cross-examination, Deputy
Commonwealth Attorney  Matthew Hoffman attempted to question her
credibility  by bringing up a separate incident that occurred four
months later. "So when you were arrested on July 13,  2004, did you
have any crack cocaine on your person?"

Evidence of other crimes is generally not allowed at  trials. But
Andrews allowed such questioning to  proceed, reasoning that McGowan
had "opened the door"  to such questioning when she said she didn't
know what  it looked like.

Though the Virginia Court of Appeals ruled twice in  split decisions
that the line of questioning was  justified, the Virginia Supreme
Court unanimously  disagreed. Bringing up the later incident "is not
only  highly inflammatory and misleading to a jury," but also  lacking
a serious attempt to answer the issue, the  court said.

But Hoffman said Friday that the Supreme Court opinion  -- including
the statement that he "smuggled" evidence  into the case -- itself
used "inflammatory" language.  "I was surprised by the decision and
shocked by the  language," he said, adding that he also thinks the
decision was wrong legally.

He said he wasn't trying to sneak anything into  evidence, he said,
but simply attempting to show that  the method McGowan used to keep
the drugs -- storing  them in her bra -- was identical in both cases.

Evidence is typically allowed, he said, when it's  attempting to prove
an identical mode of operation. He  raised the issue, he said, to
counter McGowan's  testimony that she reached into her bra to get
money  for a hamburger.

McGowan's defense attorney, Charles Haden, said he  expected the
decision based on the high court's  previous rulings, and said he was
happy with the  result. "The fact that she may have possessed cocaine
in July of 2004 failed to show that she possessed it  four months
earlier," he said. "There's a high risk of  prejudice to bring that
extraneous issue before the  jury."

McGowan later pleaded guilty to the July possession  charge and
received a three year suspended sentence.  Hampton Commonwealth's
Attorney Linda Curtis said  McGowan will be tried again on the March
incident, but  "without the evidence that was found by the court to be
  improper."
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