Battle v. Com., 1106-89-2

• Citation: 12 Va.App. 624,406 S.E.2d 195
• Decision Date: 11 June 1991
• Docket Number: No. 1106-89-2,1106-89-2
• Parties: Victor Damon BATTLE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 195

406 S.E.2d 195

12 Va.App. 624

Victor Damon BATTLE v. COMMONWEALTH of Virginia.

Record No. 1106-89-2.

Court of Appeals of Virginia.

June 11, 1991.

John B. Boatwright, III (Boatwright & Linka, on briefs) Richmond, for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for Com.

Present: KOONTZ, C.J., and BARROW and BENTON, JJ.

BENTON, Judge.

Victor D. Battle was convicted by a jury for possessing cocaine and for possessing paraphernalia. On this appeal, he raises the questions whether balance scales are controlled paraphernalia as defined by Code § 54.1-3466 and whether the trial judge erred in refusing to dismiss indictments of enhanced offenses that were obtained after the trial judge granted the Commonwealth's motion to nolle prosequi. We conclude that Code § 54.1-3466 does not include scales in its definition of controlled paraphernalia, reverse the conviction, and dismiss the misdemeanor charge. Further, we conclude that, under the circumstances of the case, the trial court erred in refusing to dismiss the indictments charging more serious offenses following the nolle prosequi.

POSSESSION OF PARAPHERNALIA

The Commonwealth charged Battle with "unlawfully ... [having] in his possession and under his control certain drug paraphernalia to wit: scales." At trial, Officer Wade testified that he stopped the car Battle was driving for failing to dim the car's high beams. After learning the car was stolen, Wade ordered the occupants to exit the car and searched Battle. He found in Battle's pocket a set of scales containing dust of cocaine residue.

Code § 54.1-3466 makes it a misdemeanor to possess "controlled paraphernalia." The statute under which Battle was prosecuted defines controlled paraphernalia as follows:

a hypodermic syringe, needle or other instrument or implement or combination thereof adapted for the administration of controlled dangerous substances by hypodermic injections under circumstances which reasonably indicate an intention to use such controlled paraphernalia for purposes of illegally administering any controlled drug, or gelatin capsules, glassine envelopes or any other container suitable for the packaging of individual quantities of controlled drugs in sufficient quantity to and under circumstances which reasonably indicate an intention to use any such item for the illegal manufacture, distribution, or dispensing of any such controlled drug. Evidence of such circumstances shall include, but not be limited to, close proximity of any such controlled paraphernalia to any adulterants or equipment commonly used in the illegal manufacture and distribution of controlled drugs including, but not limited to, scales,....

Compare Code §§ 18.2-265.1(5) and 18.2-265.3.

We agree with Battle's contention that scales are not controlled paraphernalia under Code § 54.1-3466. We quote the familiar maxim concerning the construction of penal statutes:

Criminal statutes are to be "strictly construed against the Commonwealth and in favor of [a] citizen's liberty." Strict construction, however, does not justify nullification of the evident purpose and meaning of a statute. A penal statute must be construed so as to proscribe only conduct which the legislature clearly intended to be within the statute's ambit.

King v. Commonwealth, 6 Va.App. 351, 354-55, 368 S.E.2d 704, 706 (1988) (citations omitted).

Code § 54.1-3466 expressly identifies those objects the General Assembly intended to include within the ambit of "controlled paraphernalia." The legislature identified hypodermic needles, syringes, and other instruments adapted to facilitate hypodermic injections. It included packaging products possessed in such quantity to indicate an intent to use in conjunction with manufacturing, dispensing, or distributing controlled drugs. Scales, however, were expressly identified only as equipment, the possession of which may circumstantially prove an accused's intention to use other specified paraphernalia in illegal pursuits. A reading of this statute's plain language compels the conclusion that scales were not intended to be controlled paraphernalia for purposes of prosecutions brought pursuant to Code § 54.1-3466.

MOTION TO DISMISS THE INDICTMENTS

In addition to the paraphernalia charge, Battle was originally charged with possessing cocaine, simultaneously possessing a firearm and cocaine, and grand larceny of the car. At the preliminary hearing the judge granted the Commonwealth's motion to nolle prosequi the larceny charge. When Battle appeared with counsel for the April 19, 1990, trial, Battle's counsel became aware for the first time that the police recovered a notebook from Battle during his arrest. Battle's counsel moved to suppress the notebook, arguing that the Commonwealth had not during the discovery process informed him of the book and that the notebook was irrelevant to the possession charge. In the alternative, he requested a continuance to consider the impact of the notebook on the case.

The trial judge denied Battle's request for a continuance but agreed to bar the use of the evidence, stating: "In view of the Motion for Discovery having been filed with the Court April 5th and today is April 19th and I am not going to allow the notebook." The Commonwealth's attorney retorted: "I will tell you quite frankly, the Commonwealth is thinking about nol-prossing the case and bringing up a Motion for Distribution." The trial judge then told Battle's counsel that Battle had the choice of withdrawing his objection to the notebook's introduction in evidence or suffering the nolle pros with the risk of the Commonwealth later bringing more severe charges. The Commonwealth's attorney then stated: "We will continue it and just do simple possession, [or] nol-pross it, [and] return the larger charge." When Battle refused to forego the ruling barring the notebook, the trial judge over Battle's objection granted the motion to nolle pros the charges.

One month later, the Commonwealth obtained indictments against Battle for possessing cocaine with the intent to distribute, possessing a firearm while possessing cocaine, possessing a concealed weapon, grand larceny of the car, and the unauthorized use of the car. Prior to trial, the Commonwealth's attorney was granted a nolle pros on the charge of unauthorized use of the car. For the second time, the Commonwealth's attorney sought and was granted a nolle pros on the grand larceny charge. Battle's counsel moved to dismiss the indictments on the grounds that the bringing of more serious charges represented prosecutorial vindictiveness, and he recited the events surrounding the nolle pros one month earlier. The trial judge denied the motion, ruling that it was not improper to nolle pros the prior charges and that the Commonwealth was privileged to seek indictments for more serious offenses. We conclude that the trial judge erred.

It is now well established that the "imposition of a penalty upon the defendant for having successfully pursued a statutory right ... or collateral remedy would be ... a violation of due process of law." North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). ¹

To punish a person because he has done what the law plainly allows him to do is a due process violation "of the most basic sort." ... For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.

United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982) (citation omitted).

In Goodwin, the Court held that no presumption of vindictiveness arose where the prosecution sought and obtained greater charges after plea negotiations failed and after the defendant moved for a jury trial. "[T]he timing of the prosecutor's action in this case," Justice Stevens wrote, "suggests that a presumption of vindictiveness is not warranted." Id. at 381, 102 S.Ct. at 2492. However, the opinion further instructed that

[i]n declining to apply a presumption of vindictiveness, we of course do not foreclose the possibility that a defendant in an appropriate case might prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do.

Goodwin, 457 U.S. at 384, 102 S.Ct. at 2494.

The record in this case unequivocally establishes that the enhanced charges brought against Battle were in direct response to Battle's successful suppression motion. At the April pretrial hearing, when Battle objected to the surprise appearance of evidence that he had earlier sought to discover, the trial judge refused a continuance. Instead, the trial judge cured the problem of the discovery violation by barring the Commonwealth's use of the notebook. The record establishes that the...