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4 Va. App. 275

356 S.E.2d 847

3 Va.LawRep. 2625

Arnold v. Commonwealth

Court of Appeals of Virginia

Decided June 2, 1987

Court of Appeals of Virginia · decided 1987-06-02

Relies on Hubbard v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1987-06-02

How this case has been cited

Cited by 35 later decisions — most recently April 2011 · most notably Philip Morris, Inc. v. Emerson (1988), Fisher v. Commonwealth (1988)

35 state decisions

2501987199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Barrow, J.,

¶1dissenting.

¶2I do not agree that admission of the informant’s recorded summary of his meeting with the appellant was harmless error beyond a reasonable doubt. The informant’s credibility was crucial to the Commonwealth’s case, and the recorded summary served to corroborate his testimony. I cannot say that it had no impact on the jury’s decision.

¶3The appellant’s conviction of distribution of marijuana rested on the testimony of the informant. The informant’s testimony was corroborated in part by the tape recording of his conversation with the appellant when the informant allegedly made the purchase. The informant’s recorded summary of what took place, the admission of which the majority holds was harmless error, also served to corroborate his testimony. The summary corroborated elements of the informant’s testimony which were not corroborated by the tape recording of the meeting. To that extent the summary was more than cumulative and prejudicial. See Hubbard v. Commonwealth, 174 Va. 493, 494, 6 S.E.2d 760, 760 (1940).

¶4*284The recorded conversation does not reveal all that occurred at the meeting. At least seven portions of it were inaudible. Six of the inaudible portions occurred when the appellant was speaking. Much of the conversation related to matters other than the alleged marijuana purchase, and the conversation which did relate to the purchase was of limited significance. Most of that conversation was by the informant, and the few words spoken by the defendant indicated little concerning the nature of the meeting.

¶5The informant introduced the subject of the conversation by saying, “I thought I’d come by here and get an ounce from you,” to which the appellant responded, “I never did get rid of my whole bottle.”

¶6The conversation went on to other matters; after several inaudible comments, the appellant said, “I’ll be back in a minute.” At that point the informant said that the appellant went out to his automobile and went into its trunk. The recording, however, does not confirm this fact.

¶7The appellant’s next comment is inaudible but is followed by the statement, “Come on watch till noon.” Next, the informant said, “Good God, what a bag! Um, smell’s (sic) good.” The defendant responded, “Last I got ‘til next week.” Finally, the informant said: “I’m sure I’m going to knock a big hole into this. I’ve done pretty good this week. Twenty, fifty, seventy, eighty, ninety, a hundred.”

¶8The conversation between the informant and the appellant is notable for what it does not say. At no point is the word marijuana or any of its colloquial synonyms used. The informant does refer to “a bag” and something that “smell’s (sic) good.” However, in response to the informant’s inquiry about “an ounce” the defendant told him that he did not “get rid of my whole bottle.” The jury had to speculate about the nature of the substance involved. Was it marijuana, PCP, cocaine, or illegal whiskey?

¶9The informant testified at trial that it was marijuana, and, most importantly, in his summary made following the transaction, said that he gave the appellant one hundred dollars in ten dollar bills for one ounce of marijuana. He also said that the appellant went outside after being told that the informant wanted to purchase an ounce of marijuana. Thus, the summary added information not *285included in the recording of the conversation between the appellant and the informant.

¶10The informant’s credibility was a critical issue. He is a convicted felon who has served time in the Virginia correctional system for killing his wife. Character witnesses testified that his testimony was not worthy of belief. He was alone with the appellant at the time of the purchase.

¶11I cannot say, beyond a reasonable doubt, that the informant’s recorded summary, which we agree was inadmissible, did not enhance the informant’s credibility before the jury. Therefore, I would reverse the conviction and remand the proceeding for a new trial.

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