Opinion
Record No. 1958-92-2
May 3, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND ROBERT W. DULING, JUDGE
John W. Luxton; Anthony G. Spencer (Morchower, Luxton Whaley, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010, this opinion is not designated for publication.
Appellant, Donald Lee Singleton, alleges error by the trial court in certain evidentiary rulings relating to witnesses and their testimony. He also contends that the evidence was insufficient to prove: (1) an intent to distribute and (2) that there was over five pounds of marijuana involved. For the reasons stated herein, we affirm.
I. BACKGROUND
Based on an informant's tip, Postal Inspector Sherwin Green got a warrant to search a package addressed to "Mark Wilson" at 2226 Floyd Avenue in Richmond. The package contained four bags which were field tested and determined to be marijuana. The largest bag, weighing 2,500 grams, was placed back in the package and the three smaller bags of drugs were removed and discarded. Postal receipts were substituted in their place along with a radio transmitter and fluorescent powder ("pixie dust").
Dressed as a mailman, Green delivered the package to the Floyd Avenue address on February 3, 1992. Appellant answered the door, and, when Green told appellant that he had a package for Mark Wilson, appellant said "He's not here right know [sic] he's in class, but I'll accept it for him." Appellant asked Green why the package was so late, explaining that it should have been delivered several days earlier. Appellant signed for the package using his own name.
Shortly after Green delivered the package, a vehicle pulled in and parked behind appellant's residence. The driver ("Carl") went into the house, and, five minutes later, appellant and Carl left the house with the package and entered the vehicle. Postal Inspector David Sussen observed the departure. When asked if he remembered who carried the package to the vehicle, Sussen stated that he "believe[d] it was the defendant." Appellant drove the vehicle from the house while officers attempted to follow. Appellant drove "in somewhat of an erratic manner . . . in excess of the posted speed limit and continuously made left and right hand turns" causing the officers to lose the vehicle in traffic within ten or fifteen minutes.
Later that afternoon, appellant returned to the house. He was stopped in the rear alley of the house by Investigator Louis Panebianco who advised him of his Miranda rights. During the conversation, "a small wooden pipe . . . used to ingest marijuana" and which had "residue on it" fell from appellant's jacket pocket. Panebianco asked appellant if he had smoked marijuana earlier that day, and appellant did not answer. Panebianco then told appellant, "It's no big deal, it's only marijuana," whereupon appellant immediately responded, "That's right, marijuana should be legalized."
Defense counsel objected, explaining that he had asked for all statements made by defendant and that the Commonwealth had failed to furnish this one. The Commonwealth's attorney responded that he "did not have those in my possession at the time and certainly they were available to Mr. Boatwright." The trial judge allowed the statement based on the prosecutor's representation. However, the judge found that the defense was entitled to a continuance should it need one. No continuance was requested.
The Commonwealth called Ronald Wright to the stand, handing defense counsel a copy of Wright's criminal record. Defense counsel objected, arguing that he had earlier requested criminal records "of any witness who will testify on behalf of the Commonwealth at trial," but Wright's name was never brought up. The Commonwealth asserted that defense counsel "is not entitled to know the names of my witnesses nor their criminal records." However, defense counsel was given Wright's criminal record prior to his testimony. The trial judge denied the motion to exclude Wright's testimony.
Wright, who knew appellant socially and saw him at a party shortly after appellant's release from jail, testified about statements made by appellant, in the presence of a group of people, suggesting that appellant and another person were expecting a package containing 20 pounds of marijuana. Wright testified that "they" had mentioned "pixie dust sprayed" on the "outside of the package," and that the remaining bags were filled with "postal receipts." Appellant indicated to Wright an intent to testify that "Carl" lived with him and had the package sent from his former residence. Appellant told Wright that "they took it [the package] out the back door of the apartment" because the other person (Carl) had seen two people standing outside the house. According to Wright, appellant told him that "[a]s soon as the package arrived they opened it, found that it was short, that it was filled with postal receipts and they took it out the back door." Appellant discussed the "pixie dust" in the package "that would show on your hands under special lights" and "he was worried about it on his hands." Although Wright could not say that appellant ever mentioned that marijuana was in (or was to be in) the package, appellant did indicate to Wright "that the package was supposed to contain 20 pounds and it had only contained five." Appellant and Carl "knew that it [the package] was way short." Appellant told Wright that "they were waiting for it, a package to get there."
Appellant testified that he had been living at the Floyd Avenue address for three weeks prior to February 3, 1992, and that, a week after he moved in, "Mark Wilson" became a roommate. Wilson had recently moved to Richmond from California, and on a recommendation from a friend (Carl), appellant let Wilson stay at the house. Wilson told him that he was expecting a package from California containing personal belongings. After the package was delivered, Carl told appellant that Wilson wanted appellant to deliver the package to Wilson at a gas station in Gum Springs where he worked. Appellant drove Carl (in Carl's truck) to a restaurant, changing direction when Carl chose another place to eat. After dropping Carl off, appellant drove to Gum Springs, "met Mark Wilson there and handed the package over [to him]." Appellant admitted being at the party with Wright and discussing the incident. However, he indicated that his statements were based on information learned after his arrest.
On cross-examination, and over defense counsel's objection, appellant admitted telling Detective Farmer that he "suspected there might be drugs within that package" because Wilson was from California and they "smoked marijuana together" when they first met.
Green was recalled and testified that he did not tell anyone else that postal receipts were put in the package.
The trial judge found that appellant's demeanor left "much to be desired during [his] testimony." The court then found appellant guilty of possessing over five pounds of marijuana with intent to distribute and not guilty of the conspiracy charge.
II. EVIDENTIARY RULINGS
On appeal, appellant contends that the Commonwealth's attorney violated his duty to see that defendant received a fair trial. Although appellant's arguments on appeal are couched in constitutional language, viz., the Sixth Amendment right to a fair trial, no such constitutional arguments were raised below. The Court of Appeals will not consider an argument on appeal which was not presented to the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). Consequently, we will address the following issues as matters of procedure and evidence.
A. Wright's Testimony
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), appellant filed a motion for discovery requesting exculpatory evidence, including the criminal arrest and conviction record of any witness who was going to testify for the Commonwealth.
Before Wright took the stand, the Commonwealth's attorney handed defense counsel a copy of Wright's arrest and conviction record. Appellant contends that this late compliance did not meet the requirements of Brady and such untimely disclosure of Wright's record prevented defense counsel from interviewing Wright or otherwise preparing for his testimony. He does not, however, point to anything that defense counsel would or could have done to enhance his case or produce a different result had the material been given to counsel earlier. In effect, appellant argues that the belated disclosure was per se prejudicial.
Resolution of this issue is controlled by Moreno v. Commonwealth, 10 Va. App. 408, 392 S.E.2d 836 (1990). InMoreno, the Commonwealth decided mid-trial to call a witness who it had earlier planned not to use. Thus, the witness's criminal record was not provided to defense counsel pursuant to aBrady request. Instead, it was provided just prior to the witness's testimony. Unable to point to any actual prejudice, Moreno alternatively argued that the "late disclosure should be deemed per se prejudicial." Id. at 411, 392 S.E.2d at 839. Ruling against the defendant, this Court explained:
Late disclosure does not take on constitutional proportions unless an accused is prejudiced by the discovery violations depriving him of a fair trial. So long as exculpatory evidence is obtained in time to show that it can be used effectively by the defendant, and there is no showing that an accused has been prejudiced, there is no due process violation. It is defendant's ability to utilize the evidence at trial, and not the timing of the disclosure that is determinative of prejudice.
Id. at 417, 392 S.E.2d at 842.
"[W]here an accused receives information before or at trial and is able to use it effectively, and is not otherwise able to demonstrate prejudice from the late disclosure, the discovery violation has not deprived him of a fair trial." Id. at 419, 392 S.E.2d at 843.
Here, defense counsel cross-examined Wright and, in his testimony, Wright freely disclosed his record regarding several felony convictions. On appeal, appellant is unable to demonstrate any actual prejudice from the late disclosure. Because we refuse to accept the theory of per se prejudice,see Moreno, 10 Va. App. at 417, 392 S.E.2d at 842, the trial court did not err in refusing to exclude Wright's testimony.
After the request for Brady material was made, the Commonwealth's attorney should have produced Wright's criminal record as soon as he received it, and it was improper of him not to do so. See id. at 416, 392 S.E.2d at 842 (discussing professional standards of ethical conduct applicable to Commonwealth's attorney). Clearly, the Commonwealth's attorney received this information before calling Wright to the stand and offering it to defense counsel in the midst of trial. However, the appellant has shown no prejudice; thus, the late disclosure is not reversible error.
Appellant also contends that the Commonwealth's attorney failed to comply with Code § 19.2-267 when he issued a summons for Ronald Wright. This issue was never presented to the trial court; thus, appellant is precluded under Rule 5A:18 from bringing it up for the first time on appeal.
B. The Statement to Investigator Panebianco
Investigator Louis Panebianco testified that he approached appellant in the rear alley of 2228 Floyd Avenue. He identified himself to appellant and advised him of his Miranda rights. Appellant voluntarily spoke with the officer about a variety of topics. At first, Panebianco noticed that Singleton had his hands inside his jacket, and he asked appellant to slowly remove them. When appellant voluntarily did so, he pulled a small wooden pipe used to ingest marijuana from his pocket. The following colloquy then took place:
PROSECUTOR: Did you ask him any questions concerning this pipe?
PANEBIANCO: Yes, sir, I did. I asked him if he had smoked marijuana earlier that day. Mr. Singleton hesitated and did not respond at which time I made the statement that it's no big deal, it's only marijuana, at which time Mr. Singleton immediately responded that's right, marijuana should be legalized.
Defense counsel objected to this statement to Panebianco for two reasons. He asserted that the statement was irrelevant. He also contended that the Commonwealth never advised him of the statement when he requested discovery, and thus, the first time he heard of it was during Panebianco's testimony. Although he objected, defense counsel did not request a cautionary instruction or move for a mistrial.
As to the failure to disclose appellant's statement to Panebianco during discovery, the trial court offered to grant a continuance, but defense counsel advised the court that he would wait and see how the trial developed before deciding upon a continuance. The subject was never brought up again; thus, this objection was waived.
We do not need to decide whether the statement concerning legalizing marijuana was relevant evidence and admissible. For the sake of argument, however, we will assume, without deciding, that the statement should not have been admitted.
Appellant took the stand in his own behalf and, on cross-examination by the Commonwealth's attorney, without objection, gave the following testimony:
PROSECUTOR: That's just what he told you. And you agree that you told Inspector Panebianco that marijuana should be legalized?
DEFENDANT: I didn't say marijuana — I said I just recently attended a rally at VCU for the legalization of marijuana.
PROSECUTOR: And so, you used marijuana?
DEFENDANT: I have on occasion, yes.
PROSECUTOR: So, you're not inclined to necessarily — obviously if you've used it in the past you may use it in the future?
DEFENDANT: Yes.
PROSECUTOR: So, you would not necessarily run away from an item that was marijuana?
DEFENDANT: No.
PROSECUTOR: Because in fact you would advocate it ought to be legalized?
DEFENDANT: Yes.
"In Virginia, non-constitutional error is harmless 'when itplainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.'" Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (citation omitted). "'[A] fair trial on the merits and substantial justice' are not achieved if an error at trial has affected the verdict. . . . An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact-finding function, that, had the error not occurred, the verdict would have been the same." Id.; see also Hanson v. Commonwealth, 14 Va. App. 173, 416 S.E.2d 14 (1992) (finding harmless error in improperly admitting statements by victim).
In view of the testimony, without objection by appellant, we find that the admission of his statement to Panebianco constituted harmless error. Under the circumstances of this case, if the statement had not been made, the verdict would have been the same. We find that it plainly appears from the record that the statement to Panebianco had no impact upon the defendant's conviction and he received a fair trial on the merits and substantial justice has been done.
C. The Statement to Detective Farmer
Appellant contends that he had an agreement that a conversation he had with Detective Farmer would not be used in court. Except in argument of counsel, the record contains no evidence or proof of such an agreement. The Commonwealth expressly denied any such agreement at trial. The record contains no proffer of the terms of such an agreement. Therefore, this Court will not consider this assignment of error. See Speller v. Commonwealth, 2 Va. App. 437, 440, 345 S.E.2d 542, 545 (1986).
III. INSUFFICIENT EVIDENCE THAT APPELLANT POSSESSED MORE THAN FIVE POUNDS OF MARIJUANA
Because appellant never brought to the trial court's attention the issues of the weight or character of the substance, Rule 5A:18 bars our consideration of this question on appeal.Jacques, 12 Va. App. at 593, 405 S.E.2d at 631. Moreover, based on Postal Inspector Green's testimony that the contents of the package field tested positive for marijuana and that the large bag of marijuana placed back in the package weighed 2,500 grams (5.51 lbs.), the record does not reflect any reason to invoke the good cause or ends of justice exception to Rule 5A:18.
IV. INSUFFICIENT EVIDENCE OF INTENT TO DISTRIBUTE
In closing argument defense counsel stated, "I renew the motion to strike on the possession with intent charge for the grounds briefly stated to the record." The record on appeal, however, contains no specific argument regarding any such motion.
"[A] challenge to the sufficiency of the Commonwealth's evidence is waived if not raised with some specificity in the trial court." Mounce v. Commonwealth, 4 Va. App. 433, 435, 357 S.E.2d 742, 744 (1987). Accordingly, consideration of this question on appeal is barred. Moreover, based on the amount of marijuana involved and the other facts brought out at trial, including evidence that appellant signed for, received and left his residence with the package addressed to an ostensibly fictitious person, the record does not reflect any reason to invoke the good cause or ends of justice exception to Rule 5A:18.
For the reasons stated, appellant's conviction is affirmed.
Affirmed.
The defendant's statement that he thought marijuana should be legalized was not material to the charge for which he was on trial and should not have been admitted into evidence. A fact is not relevant unless it "tends to establish the probability or improbability of a fact in issue." Harrell v. Woodson, 233 Va. 117, 122, 353 S.E.2d 770, 773 (1987).
Whether marijuana should be legalized was not an issue in the defendant's trial. The defendant's opinion on this question did not tend to prove that he possessed the marijuana with which he was charged, his motive, or his knowledge of the character or presence of the marijuana in the package.
The error in admitting it is presumed to be prejudicial.Lavinder v. Commonwealth, 12 Va. App. 1003, 1008, 407 S.E.2d 910, 913 (1991) (en banc). If, as the prosecution argued, the defendant's statement was admissible to show his attitude about marijuana and the trier of fact considered his attitude to determine the defendant's guilt, the error would have affected the verdict. Therefore, we cannot say that the error was harmless. See id. at 1005, 407 S.E.2d at 911.
For these reasons, I would reverse the judgment of conviction and remand this proceeding for a new trial.