Amonett v. Commonwealth

• Decision Date: 19 February 2019
• Docket Number: Record No. 1613-17-4
• Citation: 823 S.E.2d 504,70 Va.App. 1
• Parties: James Wesley AMONETT, Jr. v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

70 Va.App. 1

823 S.E.2d 504

James Wesley AMONETT, Jr.

v.COMMONWEALTH of Virginia

Record No. 1613-17-4

Court of Appeals of Virginia, Alexandria.

FEBRUARY 19, 2019

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

OPINION BY JUDGE ROBERT J. HUMPHREYS

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 a chemist as an expert witness in the circuit court when that witness had failed to appear pursuant to a subpoena to testify at the preliminary hearing in the general district court.

B. Whether Amonett’s Errors Were Properly Preserved

Three of Amonett’s four assignments of error concern an alleged "deal" not to prosecute between Amonett and the police. Following his indictment, Amonett made a motion to suppress the statements he made to Detective Passmore and Officer Perry as involuntarily obtained. At a pre-trial hearing regarding this motion, Amonett apparently argued, as he does on appeal, that the statements made by the police, "if he cooperated further he would possibly be able to go home that night without being arrested or charged," constituted an agreement not to prosecute.

However, while Amonett provided a transcript of the trial, he did not provide a transcript of the suppression hearing. The responsibility to provide a transcript rests with the appellant, and "[w]hen the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission shall not be considered." Rule 5A:8(b)(4)(ii). Without the benefit of a transcript or an agreed upon statement of facts, we cannot say that the circuit court erred in failing to suppress Amonett’s statements. While the statement made by the officers to Amonett was discussed at trial, at that point the issue was the admissibility of Amonett’s replies, not whether the officer’s statements constituted a grant of immunity—an issue that should have been, and presumably was, decided in the pre-trial suppression hearing. We have no way of knowing what specific legal arguments were advanced nor what additional evidence was presented at the pre-trial hearing that formed the basis for the circuit court’s decision. Moreover, although Amonett’s first assignment of error alleges error on the part of the circuit court for failing to dismiss the indictment, the written motion filed in the circuit court only seeks suppression of the statements, not dismissal of the indictment. For these reasons, in the absence of a record of the pre-trial hearing, Rule 5A:18 bars our consideration of that assignment of error.

Regarding Amonett’s third assignment of error, a fatal flaw emerges from Amonett’s argument. Amonett is correct that "cooperation/immunity agreements can be somewhat analogous to plea agreements." Lampkins v. Commonwealth, 44 Va. App. 709, 724, 607 S.E.2d 722 (2005). However, Amonett fails to recognize the fact that cooperation/immunity agreements and plea agreements are entered into by prosecutors , not the police.

Amonett does not cite any authority extending the rules governing plea bargaining or grants of immunity to interactions with the police, instead he simply conflates police with prosecutors in his argument. The respective roles of police and prosecutors are distinct, and they serve different functions and observe different restrictions.

In Rodgers v. Commonwealth, 227 Va. 605, 318 S.E.2d 298 (1984), similarly to the present case, the defendant claimed that his confession was involuntary as it had been procured by the police through a "promise of leniency." Id. at 616, 318 S.E.2d 298. Our Supreme Court noted that voluntariness must be examined through a consideration of the totality of the circumstances and whether the statement in question was "the product of an essentially free and unconstrained choice by its maker, or whether the maker’s will has been overborne and his capacity for self-determination critically impaired." Id. at 609, 318 S.E.2d 298. The Court in Rodgers further noted that "the [United States] Supreme Court [has] made clear that even an outright falsehood by a police interrogator is but another factor to be considered in evaluating the totality of the circumstances." Id. at 616, 318 S.E.2d 298 (citing Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) ). The promise of leniency our Supreme Court found no fault with in Rodgers was "[w]e're gonna [sic] submit this to the Commonwealth Attorney and then he makes the decision." Id. Here, there was no mention of the Commonwealth Attorney, but simply a statement that if Amonett cooperated he could possibly go home that night without being arrested. A statement, we note, that was strictly adhered to by the police officers who made it—Amonett did in fact go home that night without being arrested or charged.

Rodgers illustrates the fact that while police have discretion whether to make an arrest or not, it is the Commonwealth Attorney that makes the decision whether to prosecute. In the absence of clear evidence that a police officer is acting as an agent of the prosecution, an exercise of discretion by a police officer to forego an arrest does not control a prosecutor’s discretion whether to prosecute any more than an arrest by police would.

The only scenario in which the police could have granted Amonett immunity from prosecution is if they were acting as agents of the Commonwealth Attorney. Agency is "a fiduciary relationship resulting from one person’s manifestation of consent to another person that the other shall act on his behalf and subject to his control, and the other person’s manifestation...