Donahue v. Com., 820469

• Decision Date: 11 March 1983
• Docket Number: No. 820469,820469
• Citation: 225 Va. 145,300 S.E.2d 768
• Parties: Tammy DONAHUE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 768

300 S.E.2d 768

225 Va. 145

Tammy DONAHUE v. COMMONWEALTH of Virginia.

Record No. 820469.

Supreme Court of Virginia.

March 11, 1983.

Charles Joseph Zauzig, III, Woodbridge, for appellant.

Richard B. Smith, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., COCHRAN, POFF, COMPTON, THOMPSON ^* and STEPHENSON, JJ., and HARRISON, Retired Justice.

THOMPSON, Justice.

Tammy Childers Donahue was charged in separate indictments with possession with intent to distribute phencyclidine (PCP) and more than one-half ounce but not more than five pounds of marijuana. Tried by a jury, Donahue was convicted and her punishment fixed at imprisonment for thirteen years and a fine of $10,000 on the PCP charge and imprisonment for two years on the marijuana charge. The trial judge sentenced Donahue in accordance with the jury's verdict, except that he suspended payment of the fine.

On July 1, 1981, at approximately 3:00 p.m., Detective Steve Kincheloe and other police officers with the Arlington County Police Department executed a search warrant at a residence at 2910 South 2nd Street in Arlington County. When they knocked, the front door was opened quickly by Donahue, who made no effort to conceal anything. Kincheloe identified himself, served the search warrant, inquired of the defendant's name and whether she lived there, and advised her of her Miranda rights. Donahue, in turn, identified herself, responded that only she and her "husband" David Donahue lived in the house, and then let the police in. Up until that time, Donahue had been the only person in the house which was leased to David Donahue.

An extensive room-by-room search began in a spare bedroom upstairs. Some papers addressed to a Douglas Halverson were found there. When asked who Halverson was and whether he still lived there, Donahue explained that "we" had rented a room to him previously, but that he had since moved out and had not resided in the house for approximately three months. Called as a defense witness at trial, Halverson confirmed what Donahue had said and added that he had a key to the house; that he kept some belongings there; that he still paid rent to Tammy Donahue; and that he would go by several times a week to pick up his mail. Halverson stated that none of the controlled substances seized belonged to him.

In the upstairs master bedroom which Donahue indicated that she and David shared, the following handwritten note was found lying on the bed:

Tammy,

Here's $10.00; Steve came by and bought a O.Z. Call Starr first and try to set something up for 11.

Love, David

Put 5 in the Z

the rest to get in.

The note was admitted into evidence, over Donahue's objection, and read to the jury. Kincheloe testified that David drove a Chevrolet Camaro Z-28 automobile; that "O.Z." was a term used in the drug world for an ounce of a controlled substance such as marijuana, PCP, or cocaine; and that the $10 was never found.

Adjacent to the bed, atop an electronic amplifier belonging to David, was a plastic baggie containing individual aluminum foil packages, which, when combined, contained 1.285 grams of green plant material with a PCP concentration of 4%. Beneath the PCP was a small booklet of "love coupons" which Tammy had signed and given to David several days earlier. Based on his experience as a detective with expertise concerning the packaging and distribution of drugs, Kincheloe testified that these foil packets of PCP were packaged for distribution "on the street." On a nearby dresser, cigarette papers which could be used to roll marijuana or PCP into cigarette form were discovered.

Moving downstairs into the dining room and adjoining spare bedroom, the police found sixteen 35 mm. film canisters. No 35 mm. camera was ever located. According to Kincheloe, PCP is frequently distributed in such containers.

Next to the canisters in the spare bedroom, which was being used for storage, was a bucket that had a peculiar odor which Kincheloe said smelled like PCP. A forensic chemist testified that he was unable to detect a controlled substance in the bucket, explaining that none was there or the quantity was too minute to render a positive test. In the same room the police found three plastic baggies, containing approximately 27 ounces of marijuana, inside a paper bag in a wicker basket. Kincheloe testified that this quantity of marijuana was more than one person would normally keep for personal use.

In the kitchen downstairs, in open view, the police discovered a set of weighing scales, a weighing pan containing traces of brown plant material, two jars of parsley, and several boxes of plastic bags. Kincheloe explained that each of these items was commonly used in the distribution of PCP and marijuana: the parsley was treated with PCP and then smoked, the plastic sandwich baggies were utilized in the sale of marijuana, and the sealable plastic freezer bags were frequently used in the distribution of PCP which tends to deteriorate in potency when exposed to air. There was no indication that anyone had been preparing food in the kitchen.

Donahue was then arrested. Upon leaving the house, Kincheloe asked about the ownership of a jacket that was hanging on the back of the front door. Donahue said the jacket was hers. When the police searched it, they found a single hand-rolled marijuana cigarette.

On the personal history sheet Donahue filled out after her arrest, she stated that she was married and listed her present address and the address of her "husband," David, as 2910 South 2nd Street, Arlington.

Over Donahue's objection, the Commonwealth called, during its case-in-chief, Officer Joseph Peralta, an Arlington County detective, and examined him extensively as to his earlier arrest of Donahue on drug-related charges. Peralta testified that on May 20, 1981, exactly one month and eleven days before her arrest on these charges, he observed Donahue and several men together in an automobile at a local convenience store; that she was handling PCP; that during a subsequent frisk of her clothing a plastic bag containing PCP was discovered; that she was then arrested; and that sometime later Donahue confessed that she had been selling the PCP. The trial court, at that point, instructed the jury ¹ :

THE COURT: Members of the jury, I'll give you an instruction on the subject at this point rather than waiting until the general instructions. This evidence has been admitted for a limited purpose. The evidence of prior criminal activity is never admissible in a case to show that the defendant is guilty of the crime for which she is now on trial.

That's another case. That's if you should find her guilty of the cases for which ... she's charged under these indictments that you have before you today, you should not consider it to enhance her punishment or should you consider that she should be punished more seriously because of the other activity.

It's admissible only for this reason. The Commonwealth has the burden of proving intent to distribute and they in the course of doing so wish to offer such evidence as they can ... [to negate] the thought that she might not have known what the substance was or she might have been unaware of its presence or she might have no intent to distribute, and this of course is not conclusive.

It's simply circumstantial evidence that you can consider along with all the other evidence in this case for whatever weight you want to give it insofar as it may shed light on those elements for intent, motive, knowledge, etc.

When she later took the stand on her own behalf, Donahue was cross-examined about this prior offense. Although she admitted familiarity with how PCP and marijuana were packaged, and having pled guilty to an accommodation sale in the earlier offense, she vehemently denied the present charges and any involvement with David in the distribution of drugs.

Donahue explained that she had spent the night before the search in the master bedroom; that she had left David asleep in bed when she left for work that morning; and that he had telephoned and asked her over for lunch. She left work, arriving at the house at approximately 2:15 p.m. She then let the dog out, fixed a sandwich in the kitchen, and waited for David to arrive. Donahue denied seeing the weighing scales in the kitchen, the handwritten note from David upstairs, or any of the illegal drugs seized. As to the presence of the plastic bags in the kitchen, she explained that she used them for fixing lunches and freezing various foods. Donahue added that, since it was July, she had not worn for some time the leather jacket in which the marijuana cigarette was found. In her estimation, she had been in the house for some 30-35 minutes before the police arrived.

Donahue added that she and David had lived together for approximately eight years; that she regarded their relationship as a "common law marriage"; that they had argued over his involvement with drugs; that she subsequently moved out and rented an apartment nearby; and that she split her time between the two locations. She admitted that she paid the utility bills for the house, kept clothing there, and still had a key.

David Donahue was also charged, but has never appeared.

On appeal, Donahue alleges that the trial court erred on the following evidentiary points: (1) admission of the handwritten note from David, and (2) admission of Officer Peralta's testimony pertaining to her prior arrest and conviction. ²

I. Handwritten Note.

In admitting the note into evidence over Donahue's objection, the trial court agreed with the Commonwealth's assertion that the note was not hearsay because it was being offered simply to prove the fact of utterance, a "verbal act."

Donahue contends now, as she did below, that the note was hearsay and that despite assurances to the contrary the Commonwealth used it throughout the trial to prove that she had knowledge of...