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Gregory v. Commonwealth

Court of Appeals of Virginia

November 25, 2014



Patricia Palmer Nagel for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Frank, Beales and Senior Judge Clements.


Page 733


Appellant Charlene Lanette Gregory (appellant) was convicted by a jury in the Circuit Court of the City of Richmond of (1) possession of a firearm by a convicted felon under Code § 18.2-308.2 and (2) possession with intent to distribute marijuana under Code § 18.2-248.1. On appeal to this Court, appellant argues that the trial court erred by denying appellant's motion to suppress her statements to the police, contending that " law enforcement conducted a custodial interrogation of appellant without availing her of her Miranda rights and after appellant gave the Commonwealth proper notice of appellant's claims" as required by Code § 19.2-266.2. Appellant also argues on appeal that the trial court erred by allowing an expert witness, Detective O'Connell, to " testify as to intent," which appellant contends was " the ultimate issue of fact" pertaining to her charge for possession with intent to distribute marijuana.[1] For the following reasons, we affirm appellant's convictions.

I. Background

Applying the established standard of review on appeal, we consider the evidence at trial " 'in the light most favorable to the Commonwealth, as we must since it was the prevailing party'" in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, [64 Va.App. 90] 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). On February 16, 2012, Richmond police responded to the Hillside Court area of Richmond upon the report of shots fired. As they were investigating this report, they saw a woman running in the area of appellant's apartment so they approached the apartment and knocked on the door. Appellant answered the door. Office Butler testified that he asked appellant if he and the other officers could " come inside and talk to [her]" and that appellant replied that they could. Once inside her apartment, Butler noticed in plain view " an ashtray with four marijuana blunts inside." Butler asked appellant about those, and noted that " she said she had been smoking weed." Butler also told appellant that he " smelled both burnt and unburnt marijuana." Appellant then produced a small bag of marijuana from the top of a kitchen cabinet and a larger quantity of marijuana in plastic bags. She also produced some cash from a fruit snack box.

Officer Butler asked for appellant's " consent to search the rest of the residence to make sure there's nothing else illegal in the house," and he testified that she " said yes." (i.e. that she would consent). At about the same time, another officer, Officer Spann, came back downstairs from the upstairs, where he had taken appellant's children, and reported that " there's some ammunition upstairs" -- causing concern among the officers that there might be a gun in the house. The officers inquired about whether she had a firearm, and, according to Butler, appellant " eventually directed Officer Spann to the closet that was downstairs by the kitchen," where a revolver was found.

Page 734

While Officer Spann was not called as a witness at the suppression hearing, he did testify at the trial which immediately followed the suppression hearing. He stated that, when he asked appellant why she would keep a loaded firearm in a place where children could find and take it, she indicated that she needed the gun for protection because " she said she was selling weed." Appellant was arrested and taken into custody.

[64 Va.App. 91] Thirteen days prior to trial, appellant's trial counsel filed, as required by Code § 19.2-266.2, a written motion to suppress " all evidence seized and all statements made incident to or as a result of an illegal entry into and warrantless search of her residence and interrogation," claiming that " such evidence was obtained in violation of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States, and Article I, § § 8, 10 and 11 of the Constitution of Virginia." As support for the motion to suppress, appellant's counsel focused on arguing that the police executed an unlawful, warrantless search and seizure of appellant's home without having any exigent circumstances and without appellant's consent.[2] The written motion to suppress did not specifically allege that appellant's incriminating statements to the police were the product of an unlawful custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). While the written motion to suppress characterized Gregory's incriminating statements as " fruit of the poisonous tree," the written motion did not develop an argument pertaining to a Fifth Amendment violation under Miranda although it referred generally to the Fourth, Fifth, and Fourteenth Amendments. The trial judge denied the motion to suppress, stating that " failure to give Miranda warnings [is] not before the court in this motion." He explained, " The motion deals with unlawful entry, warrantless search. The boilerplate language in the introductory paragraph is not enough to put the Commonwealth on notice that failure to give Miranda warnings at a particular time is fatal to the use of statements that were made."

Appellant's jury trial immediately followed the denial of her motion to suppress. The Commonwealth introduced (during the direct examination of a Department of Forensic Science analyst) a certificate of analysis that the analyst prepared indicating that 4.9 ounces of marijuana were obtained from [64 Va.App. 92] appellant's residence. In addition, there was evidence admitted that a digital scale and $250 in cash were seized from appellant's residence. The prosecutor asked Richmond Police Detective Daniel O'Connell, who was received as an expert in the street-level distribution of marijuana, whether he had drawn " a conclusion" whether " this marijuana that was seized was consistent or inconsistent with personal use." Appellant's attorney objected to this question on the ground that the question pointed to " the ultimate issue for the jury." The trial judge disagreed and overruled the objection.

When O'Connell testified that the circumstances were " inconsistent with personal use," the prosecutor asked O'Connell to explain what " factors went into your analysis." O'Connell then testified, " The first factor is drug dealing is very -- it's a business. It's a big business. And the defendant in this case in my opinion was running it as a business." Appellant's counsel objected, stating specifically, " That goes beyond what he's here to testify to, whether it's inconsistent or consistent with personal use or distribution." Defense counsel added, " Concluding that my client is running a business is not proper testimony for his expertise." The prosecutor responded that, if O'Connell could reasonably " extrapolate" from the circumstances that " it was some kind of business enterprise," then the testimony was appropriate.

The trial judge allowed the testimony to be admitted, making the specific finding that Detective O'Connell's opinion testimony that appellant was running a business was " within [O'Connell's] expertise." The trial judge did not expressly rule on whether this particular testimony was improper " ultimate issue" testimony from an ...

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