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Bennett v. Commonwealth

Court of Appeals of Virginia

November 20, 2018



          Gregory W. Smith for appellant.

          Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Huff, Judges Beales and Decker Argued at Salem, Virginia



         Mitchell Larnell Bennett appeals his conviction for drug distribution, a third or subsequent offense, in violation of Code § 18.2-248. He contends that the admission of video and audio recordings reflecting the drug sale violated his constitutional right of confrontation. He also challenges the sufficiency of the evidence to prove that he was the seller of the illegal drugs. We hold that admission of the recordings did not violate his constitutional right to confront the witnesses against him. We further conclude that the evidence proves the charged offense. Consequently, we affirm the conviction.

         I. BACKGROUND[1]

         The challenged conviction arises out of a controlled purchase of illegal drugs made by an informant on April 28, 2016. The informant died prior to the appellant's trial. Subsequent to the informant's death, the appellant made a motion to exclude video and audio recordings depicting the controlled purchase, as well as photographs made from the video. The court heard evidence and argument on the motion and denied it.[2] After taking additional evidence, the court found the appellant guilty.

         A. Testimony Regarding the Controlled Purchase

         Investigators Brandon Hurt, Jason Staton, and James Begley of the Amherst County Sheriff's Office oversaw the controlled purchase. The investigators used a "live" audio feed, which they monitored as the sale occurred. They also made separate audio and video recordings of the transaction, which they were able to review only afterward. All three investigators knew the appellant personally and identified his voice on the audio feed and audio recording. Investigators Hurt and Staton also identified the appellant in the video and photographs made from the video. Additionally, Investigator Begley had known the informant for several years and was "[v]ery familiar" with his "prior work" with law enforcement.

         Immediately before the transaction, Investigators Hurt and Staton searched the informant, his cigarette pack, and his motorcycle, and found no contraband. The investigators then equipped him with an audio and video recording device, which was "essentially . . . a cell phone." They listened as the informant made a telephone call in which he spoke to the appellant.

         Investigator Hurt confirmed that during the phone conversation between the appellant and the informant, the informant made "reference" to "two funny sticks." Hurt, a narcotics investigator familiar with "lingo" in "the drug trade," explained that this term "referr[ed] to tobacco cigarettes dipped in PCP." He testified further that the informant also mentioned "the whole 3.5," which, in context, meant "an eight ball or three and a half grams of crack cocaine."

         The investigator indicated that based on the conversation, these were the items that he expected the informant to purchase from the appellant. When the phone call ended, Hurt gave the informant $270 with which to buy the drugs.

         The informant then rode his motorcycle to a second location. The investigators followed him and confirmed visually that he did not "stop anywhere or do anything" on the way. From the new location, the informant engaged in a second telephone conversation, in which the appellant told the informant where to meet him. The officers followed the informant to the specified location, maintaining visual surveillance until he drove into an apartment complex.

         Hurt activated the video recording device remotely. The investigators positioned themselves at the sole entrance and exit to the apartment complex and continued to monitor the live audio feed. Once they heard the informant's motorcycle stop, they noted the informant's and appellant's voices on the audio feed, as well as other unidentified voices.

         When Investigator Hurt heard the informant leaving the apartment complex, he remotely stopped the video recording. The investigators then followed the informant to another location, where they took possession of the recording device and two plastic bags containing suspected illegal drugs. The informant also returned $40 to Hurt because he obtained less cocaine than he had sought. After the informant handed over these items, Staton searched him and his motorcycle and found no other drugs or money.

         B. Silent Video Recording of the Drug Transaction

         The video recording depicting the in-person transaction was played for the trial court at the motion hearing.[3] It depicts the inside of a residence. A working television is visible as it displays a person moving on the screen. The video further shows the informant encountering two different people inside the residence. Fleetingly at the beginning of the video, a woman is visible in the living room. Thereafter, only two men are visible throughout the remainder of the video-the informant and a second man, identified by two of the investigators as the appellant. The video and some of the photographs include the appellant's face and show him holding at least one plastic sandwich bag and two slightly discolored cigarettes.

         C. Audio Recording of the Telephone Calls and Drug Transaction

         The audio recording, which encompasses two telephone calls between the appellant and the informant as well as the subsequent in-person transaction, was also played for the trial court at the motion hearing.

         In the first conversation, the informant tells the appellant that he has "money now" and "want[s] two of them funny sticks" and "a whole three and a half." The appellant responds, "O.k.," to each of the two specific requests for drugs and concludes with, "I gotcha." The two then discuss where to meet. The appellant instructs the informant to give him five to ten minutes, after which the appellant says he will tell the informant where to go. In a second conversation, the appellant says something unintelligible, and the informant responds, "Alright, I'll be right there." The informant then tells the investigators where he is going.

         Following the sound of a motorcycle, the informant can be heard in the next portion of the audio greeting another person whose voice the investigators identified as the appellant's. Additional voices or other noises can be heard in the background but not in a way that clearly indicates either any interaction with the informant or appellant, or the presence of people other than as heard through a television. Only portions of the recording of the approximately five-minute exchange are intelligible. Most of what is intelligible appears to be in the informant's voice. The majority of ...

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