Corsaro v. Commonwealth, Record No. 1269-05-2 (Va. App. 11/6/2007)
| Decision Date | 06 November 2007 |
| Docket Number | Record No. 1269-05-2. |
| Court | Virginia Court of Appeals |
| Parties | APRIL NICOLE CORSARO, Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee. |
Appeal from the Circuit Court of Madison County, Circuit Court Nos. CR4146 and CR4147, Herman A. Whisenant, Jr., Judge Designate.
Kevin E. Smith (Smith & Greene, P.L.L.C., on brief), for appellant.
Alice T. Armstrong, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey, McClanahan, Haley, Petty and Beales, Benton.
A jury convicted April Nicole Corsaro (appellant) of possession of cocaine and conspiracy to distribute the same. Appellant asserts the trial court erred 1) in violating her constitutional right to confront witnesses and 2) in denying her motion to strike the evidence on the conspiracy charge. Agreeing with appellant on her second assignment of error, a divided panel of this Court reversed appellant's conviction for conspiracy to distribute cocaine. Corsaro v. Commonwealth, No. 1269-05-2 (Va. Ct. App. Nov. 14, 2006). Upon granting the Commonwealth's petition for a rehearing en banc, we stayed the mandate of the panel decision. After consideration from the full Court and for the reasons that follow, we affirm appellant's conviction.
"Applying well-established principles of appellate review, we must consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party below." Walker v. Commonwealth, 272 Va. 511, 513, 636 S.E.2d 476, 477 (2006). "That principle requires us to discard the evidence of the accused in conflict with that of the Commonwealth and to regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Guda v. Commonwealth, 42 Va. App. 453, 455, 592 S.E.2d 748, 749 (2004).
On April 14, 2004, Investigator Garry W. Harvey, a lieutenant with the Madison County Sheriff's Office and member of the Blue Ridge Narcotics Task Force, received a tip from a confidential informant about an impending drug transaction. Based on this information, officers from the task force proceeded to a 7-Eleven store off Route 29 in Madison County and awaited the arrival of a maroon Chevy Blazer, purportedly driven by a white female named April. Fauquier County Detective Timothy Chilton, a task force member, testified that he was familiar with both this woman, April Corsaro, and this particular maroon Blazer, since "[t]he individual that owned the vehicle had actually cooperated with the task force before on numerous occasions."
At approximately 10:00 p.m., a maroon Chevy Blazer arrived in the parking lot of the 7-Eleven. Officers surrounded the vehicle and detained the driver, whom Harvey and Chilton identified at trial as appellant. According to Harvey, appellant Harvey advised her to remain quiet and administered the Miranda warnings.
Thereafter, according to Officer Harvey, appellant Harvey testified that, through his "connection with the [narcotics] task force," he knew of a Jason Washington in Culpeper County who used the name "J-Rock." Harvey also recounted that officers found a beer can with ashes inside the Blazer and that appellant "advised [him] that she had smoked crack out of that can prior to arriving to 7-Eleven." A certificate of analysis introduced at trial confirmed the substance in the can was crack cocaine.
At trial, appellant interposed an objection during Harvey's testimony "to information he simply received from another individual." Appellant further argued that, "unless that individual's here to testify, I would object to the hearsay evidence." The trial court noted that the testimony would not be considered for its truth, but it would be admitted to show how Harvey proceeded.
At the close of the Commonwealth's case, appellant moved to strike the evidence on the conspiracy charge, arguing that there was "absolutely no evidence, whatsoever, that she met with, talked to, agreed with anybody about anything as far as any kind of drug transaction . . . other than a confession." The trial court denied the motion, stating
there is sufficient corroboration that has been shown by the mere fact that, not only did she arrive in the vehicle at the time, the location, as was going to be indicated, but she had drugs in the car at that particular time, and she also stated that the drugs were there and she's used the drugs — smoked the drugs from the can prior to coming there.
In her first question presented, appellant contends "the trial court violated [her] Constitutional right to confront witnesses against her in allowing prosecution witnesses to testify about information that was provided to them by a confidential informant who was not present and did not testify at the trial . . . ." Appellant, though, only offered a general hearsay objection to testimony concerning the confidential informant. That testimony was admitted for the limited purpose of describing the progression of events and the police officers' subsequent actions.
Appellant at no point during her trial alleged a violation of the Confrontation Clause. Pursuant to Rule 5A:18, `"The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.'" Peake v. Commonwealth, 46 Va. App. 35, 42-43, 614 S.E.2d 672, 676 (2005) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)).1 For that reason, our consideration of this issue is procedurally barred.2
Appellant framed her second question presented as follows: "Whether the trial court erred in denying [her] motion to strike the Commonwealth's evidence as to the conspiracy charge when it ruled that Appellant's confession was corroborated by the hearsay evidence of the confidential informant." At oral argument, appellant conceded that her statement to police constituted a full confession to the crime of conspiracy to distribute cocaine, and, consequently, only slight corroborative evidence was necessary to establish that confession's veracity. See Powell v. Commonwealth, 267 Va. 107, 145, 590 S.E.2d 537, 560 (2004) . Following this concession, appellant urged us to hold that the record contains absolutely no evidence that could corroborate her confession.
Appellant, in her question presented on this issue, challenges only the trial court's reliance upon hearsay evidence that described information supplied by the confidential informant. We agree with appellant that the trial court improperly considered this evidence, which was admitted not for its truth, but instead to show the progression of events. However, appellant failed, in her questions presented, to challenge the trial court's alternate holding on the corroboration issue, namely that appellant "had drugs in the car at that particular time, and she also stated that the drugs were there and she's used the drugs — smoked the drugs from the can prior to coming there." In other words, appellant did not allege in her questions presented to this Court that the trial court erred in finding that the physical evidence seized from appellant's vehicle provided the slight evidence necessary to corroborate the veracity of her full confession, nor did she dispute that either Officer Harvey's prior knowledge of "J-Rock" as Jason Washington of Culpeper County or Officer Chilton's familiarity with her and the vehicle she was driving could supply the slight corroboration needed.
We hold that "appellant's `failure to address one of the [trial court's alternate] holdings results in a waiver of any claim of error with respect to the court's decision on that issue.'" Johnson v. Commonwealth, 45 Va. App. 113, 116, 609 S.E.2d 58, 60 (2005) (quoting United States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001)). See also Rule 5A:12(c) (). "That said, we still must satisfy ourselves that the alternative holding is indeed one that (when properly applied to the facts of a given case) would legally constitute a freestanding basis in support of the trial court's decision." Id. Given that only slight evidence is needed to establish the veracity of appellant's full confession, we find that the trial court's alternate holding could independently satisfy that legal standard. Consequently, we find appellant's failure to assign error to the trial court's alternate holding in her question presented, or even to include a general allegation that the record does not contain the slight evidence necessary to corroborate her confession, is dispositive of this issue.
IV.
For the foregoing reasons, appellant's conviction is affirmed.
Affirmed.
On November 28, 2006 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on November 14, 2006, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is...
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