Clark v. Commonwealth, Record No. 1398-10-1
| Decision Date | 05 July 2011 |
| Docket Number | Record No. 1398-10-1 |
| Court | Virginia Court of Appeals |
| Parties | SHAVIS SHUNDALE CLARK v. COMMONWEALTH OF VIRGINIA |
Present: Judges Elder, Petty and Alston
Argued at Chesapeake, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
J. Barry McCracken, Assistant Public Defender, for appellant.
Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Appellant, Shavis Shundale Clark, was convicted in a bench trial of possession of cocaine with intent to distribute in violation of Code § 18.2-248, transporting one or more ounces of cocaine into the Commonwealth in violation of Code § 18.2-248.01, and conspiracy to distribute cocaine in violation of Code § 18.2-256. On appeal, Clark argues that the trial court abused its discretion when it (1) ruled that Clark could not argue that the police exceeded the scope of the search warrant because he had not included that challenge in his written motions and (2) ruled that it would not grant Clark another hearing if he filed another motion to suppress raising that issue. Clark also argues that the evidence was insufficient as a matter of law to support his convictions.
For the following reasons, we conclude that the trial court did not abuse its discretion by refusing to consider the new argument that was not included in Clark's written motion to suppress, and further, that Clark failed to preserve his objection to the scope of the search. We also disagree that the evidence was insufficient to support the convictions for possession of cocaine with intent to distribute and for transporting an ounce or more of cocaine into Virginia. However, we agree that the evidence was insufficient to support the conspiracy charge. Thus, we reverse and dismiss the conspiracy conviction and affirm the remaining convictions.
Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite below only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal. We view the evidence in the light most favorable to the Commonwealth, and grant to it all reasonable inferences fairly deducible from that evidence. Brown v. Commonwealth, 56 Va. App. 178, 180, 692 S.E.2d 271, 272 (2010).
Clark first assigns error to two trial court actions relating to his objection to the seizure of certain evidence during a search pursuant to a warrant. Clark filed two motions to suppress prior to trial. The first motion asked the trial court to suppress the evidence seized by police during the search of Clark's apartment due to an alleged lack of probable cause to issue the warrant. The second motion asked the trial court to suppress statements Clark made to police. At the hearing, Clark's trial counsel attempted to expand his argument challenging the search by alleging that the police exceeded the scope of the search warrant by seizing items that were not included in the warrant. In response to the Commonwealth's objection to the new argument,Clark stated, "I can file another motion." The trial court sustained the Commonwealth's objection, concluding that Clark had failed to give written notice that he would present the new argument. The trial court also said, Thereafter, Clark asked the court to allow him to argue the issue at the current hearing, explaining that there was no need for an additional hearing. The trial court denied the request, reiterating that the Commonwealth had not received proper notice. Clark later filed a written motion to suppress that embodied the argument he wished to make at the previous hearing. He never requested either a hearing or a ruling on the written motion.
Clark now appeals the trial court's refusal to consider his challenge to the scope of the search. We conclude that the trial court did not abuse its discretion by refusing to consider the new argument at the hearing because it was not included in the pending written motion to suppress. We further conclude that Clark waived his subsequent written motion to suppress because he failed to ask the trial court to rule on that written motion.
"In Virginia, the conduct of a trial is committed to the discretion of the trial court." Frye v. Commonwealth, 231 Va. 370, 381, 345 S.E.2d 267, 276 (1986) (citing Watkins v. Commonwealth, 229 Va. 469, 484, 331 S.E.2d 422, 433 (1985)). Part of the conduct of a trial includes pre-trial matters before the court, including motions to suppress. See Code § 19.2-60 (); Code § 19.2-266.2 (); Rule 3A:9 (). Under Code § 19.2-266.2, a defendant that wishes to move the courtto suppress evidence must do so in writing. Further, under Rule 3A:9(b)(3), the written motion must "state with particularity the ground or grounds on which it is based."
Here, the trial court did not abuse its discretion by refusing to allow Clark to interject additional objections to the lawfulness of the seizure of evidence. At the time of the hearing, his written motion to suppress pertaining to the search alleged only that there was no probable cause to justify the issuance of the search warrant. He did not allege that the police exceeded the scope of the search warrant by seizing items not listed in the warrant. Accordingly, Clark's written motion failed to state the issue he wished to argue with the particularity required by Rule 3A:9. Therefore, the trial court was within its discretion to limit the scope of the suppression hearing to only those issues raised by Clark in his written motions.
Regarding Clark's assignment of error related to his subsequent motion to suppress, we conclude that Clark's actions below failed to adequately preserve this issue for appeal. Under Rule 5A:18,2 "No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling . . . ." The purpose of this Rule "is to afford the trial court an opportunity to rule" on the motion. Williams v. Commonwealth, 57 Va. App. 341, 347, 702 S.E.2d 260, 263 (2010). A party that brings a motion to the attention of the trial court, but then disclaims any desire to receive a ruling from the court, has failed to afford the trial court the opportunity to rule on the motion and has thereby failed to preserve any issues raised in the motion for appeal. See Nusbaum v. Berlin, 273 Va. 385, 396-97, 405-06, 641 S.E.2d 494, 499-500, 505-06 (2007) ().3
Here, Clark never asked the trial court for a ruling on his motion once he had filed it.4 The only time Clark's trial counsel ever brought the filed motion to the attention of the trial court was just before the trial began. At that time, counsel disclaimed his desire for a ruling, stating that he filed the motion not to contravene the previous ruling of the court, "but rather to make the record for [his] client." Accordingly, he did not ask for an actual ruling on the motion at that time. Thus, whether the police exceeded the scope of the search warrant is an issue he failed to preserve for appeal.
Clark also assigns error to the trial court's ruling that the evidence was sufficient to support all of the charges against him. We disagree with respect to the charges of possession of cocaine with intent to distribute and transporting one ounce or more of cocaine into the Commonwealth. We conclude that the evidence, taken with reasonable inferences, was sufficient to prove that Clark had arranged for a second person to sell him cocaine. Thus, the evidence was sufficient to prove that he knew the unopened FedEx box he received contained cocaine and that he was a principal in the second degree to the transportation of cocaine into theCommonwealth. However, we agree with Clark that the evidence was insufficient to prove that Clark conspired with the second person to distribute cocaine because the evidence failed to demonstrate anything beyond a mere sale of drugs, which is legally insufficient to support the charge.
The relevant evidence shows that the police intercepted a package at a FedEx distribution facility in Norfolk that they suspected of containing contraband. The package was addressed to Jason Thomas, 1626 Lovitt Avenue, Apt. 4, Norfolk, Virginia. The package had a return address of Marie Thomas, 470 Northeast 123 Street, Miami, Florida. It was marked for overnight delivery. After a drug dog indicated the presence of illegal drugs in the package, the police obtained a search warrant for the package, opened it, and discovered about 124 grams of cocaine inside, along with other items, including dryer sheets. Because the dog had damaged the package, the police placed the contents of the package inside a new, identical FedEx package, with the exception that they only put about 1.5 grams of the cocaine inside the new package. They also transferred the "air bill" that indicated the recipient and return addresses onto the new package.
The police then obtained an "anticipatory" search warrant predicated on the successful delivery of the package to 1626 Lovitt Avenue, Apt. 4, in Norfolk. A police officer...
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