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Amonett v. Commonwealth

Court of Appeals of Virginia

February 19, 2019

JAMES WESLEY AMONETT, JR.
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Bruce D. White, Judge

          Alan J. Cilman for appellant.

          Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Decker, Judges Humphreys and Huff Argued at Alexandria, Virginia

          OPINION

          ROBERT J. HUMPHREYS JUDGE

         This appeal primarily involves three questions: 1) the degree to which promises of leniency made by police officers render statements by the accused "involuntary," or constitute a grant of immunity from a criminal conviction; 2) whether it is the court or a jury that makes that determination, and 3) the effect at trial of a forensic witness' failure to appear and testify at a preliminary hearing.

         James Wesley Amonett, Jr., ("Amonett") appeals the March 15, 2017 jury verdict of the Circuit Court of Fairfax County ("circuit court") convicting him of two counts of possession with intent to distribute marijuana in violation of Code § 18.2-248.1.

         I. BACKGROUND

         On July 27, 2015, Corporal Andrew Perry ("Officer Perry") of the Herndon Police Department stopped Amonett's vehicle. When Officer Perry approached the vehicle, he smelled marijuana. Officer Perry observed that Amonett appeared to be breathing heavily and was nervous. Investigating the odor of marijuana, Officer Perry searched Amonett's vehicle's center console, where he found marijuana and associated paraphernalia. Officer Perry also found a backpack on the passenger side floor containing a safe which gave off a strong odor of marijuana. Detective James Passmore ("Detective Passmore") of the Herndon Police Department arrived at the scene to assist Officer Perry. Officer Perry and Detective Passmore told Amonett that "if he cooperated further he would possibly be able to go home that night without being arrested or charged." Detective Passmore presented Amonett with a consent to search form for the safe in the backpack, which Amonett signed. Inside the safe the officers found half a pound of marijuana. The officers transported Amonett to the Herndon police station.

         At the police station, Amonett was appraised of his Miranda rights and was interviewed. During the interview, Amonett stated that he had received a two-pound parcel of marijuana from California, that the half pound found in the safe had been part of this shipment, and that the remainder of the shipment was at his residence. Amonett signed another consent to search form related to his residence where they secured the remaining marijuana along with a scale, paraphernalia, and $270 in cash.

         Amonett was released and was not arrested and charged until October 2015. Amonett filed a written motion to suppress his statements to police. A hearing on that motion was held on February 24, 2017. No transcript of that hearing or statement of facts has been provided on appeal. On March 10, 2017, Amonett filed a written motion in limine to bar the testimony of Dr. Eugene Reichenbecher ("Dr. Reichenbecher") or in the alternative to dismiss the indictment based upon Dr. Reichenbecher's failure to appear and testify at the preliminary hearing. A hearing on that motion took place immediately before trial began on March 14, 2017, and the motion was denied. Amonett was tried by a jury on March 14-15, 2017. During the trial, Amonett testified that he made purchases of marijuana from California, receiving them through the mail and distributed them, and that he had been in the process of distributing the most recent shipment when stopped by Officer Perry. Dr Reichenbecher, a forensic scientist, testified that he had chemically tested the seized material to verify that it was marijuana. The jury convicted Amonett, recommending a sentence of fourteen days in jail and a fine of $3, 000. The circuit court sentenced Amonett accordingly on July 7, 2017. This appeal follows.

         II. ANALYSIS

         A. Assignments of Error

         Although his arguments are convoluted and overlapping, Amonett assigns four errors to the circuit court. First, he asserts that the circuit court erred by failing to dismiss the indictments on the grounds that he had been granted immunity by the police; second, that the circuit court erred in failing to instruct the jury that they should acquit Amonett if they determine that the police had made a promise that he would not be prosecuted; third, that the circuit court erred in failing to suppress his statements to the police on the grounds that they were involuntary in that they were the product of an agreement that he would not be prosecuted; and fourth, that the circuit court erred in allowing the testimony of ...


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