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.