Doss v. Commonwealth
| Decision Date | 10 January 2012 |
| Docket Number | Record No. 1136–10–3. |
| Citation | 719 S.E.2d 358,59 Va.App. 435 |
| Parties | Brian Heath DOSS v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
OPINION TEXT STARTS HERE
James C. Martin (Martin & Martin Law Firm, on briefs), for appellant.
John W. Blanton, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: HUMPHREYS, PETTY and HUFF, JJ.
Brian Heath Doss (“appellant”) appeals his conviction of one count of distribution of a Schedule II controlled substance, first offense, in violation of Code § 18.2–248, and one count of distribution of a Schedule II controlled substance, a second or subsequent offense, in violation of Code § 18.2–248. Following a jury trial in the Circuit Court of Pittsylvania County (“trial court”), appellant was sentenced to twenty-five years imprisonment on each count as well as a fine of $100,000 on each count, which fine the trial court suspended.
On appeal, appellant contends that the trial court erred in denying 1) appellant's motion to sever when appellant did not consent to having the charges tried together and the circumstances did not comply with the requirements of Rule 3A:10, 2) appellant's motion in limine in allowing Michael Cox (“Cox”) to testify when he had no knowledge of the alleged drug deals on November 1 and November 4, 2008, and 3) a new trial where his rights were violated when the Commonwealth's attorney and authorities failed to provide information concerning a failed urine test by informant Mark Bell (“Bell”) along with other impeachment and exculpatory material. For the following reasons, we affirm the appellant's convictions.
On appeal, “ ‘we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’ ” Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.
On October 17, 2008, Investigator William Chaney (“Chaney”), with the Pittsylvania County Sheriff's Office, and other officers with the regional Drug Task Force executed a search warrant at Bell's residence. They found cocaine and cash at the residence, and arrested Bell on four charges of possession of cocaine with the intent to distribute. Shortly after his arrest, Bell offered to cooperate with Pittsylvania County police investigations of drug distribution in an effort to avoid both federal charges and charges in other localities within the Commonwealth.
Bell informed the investigators that appellant had been his primary source of cocaine for several months. Bell stated that appellant would “front” him one ounce of cocaine at a time, which Bell then would sell and pay appellant $1,100 for the “fronted” cocaine. Bell also informed the investigators that he occasionally had purchased drugs from another dealer named Joseph Tweedy (“Tweedy”).1 Bell claimed that appellant was aware of the purchases from Tweedy and that appellant had told Bell that he was “crossing [appellant's] toes” and Bell should not buy drugs from somebody else. When appellant spoke with Bell, Bell owed appellant approximately $3,200 from prior dealings with appellant.
Bell agreed to make a controlled purchase from appellant, so Chaney provided state and county money for Bell to pay appellant the sums that Bell owed him. Under Chaney's supervision, Bell made several controlled buys from Tweedy and appellant in October outside of Pittsylvania County. As usual, appellant “fronted” Bell the cocaine, and required Bell to repay him before appellant would supply Bell with more cocaine.
On November 1, 2008, Chaney, Sergeant Ford, with the Pittsylvania County Sheriff's Office, and Special Agent Alan Ruis (“Ruis”), with the Virginia State Police, were involved with a controlled buy between Bell and appellant. The officers met with Bell, and provided him with a digital audio recorder and a wire. The officers also searched Bell and his truck prior to the controlled buy to ensure that he had no other drugs or money in his possession. In addition, Chaney provided Bell with $1,100 so that Bell could repay appellant for a prior transaction.
On that day, Bell was unable to reach appellant by telephone, so he drove to appellant's house in an attempt to find appellant. The officers followed Bell as he drove to appellant's residence, and waited nearby. When Bell arrived at appellant's house, Bell and appellant went outside to a two-car garage behind the house where appellant stored the cocaine in a black trash bag inside a five-gallon bucket. Appellant retrieved digital scales from the house, returned to the garage, and weighed out an ounce of cocaine for Bell. Bell pocketed the cocaine, and left appellant's property after he had given appellant the $1,100.
After Bell left appellant's home, Ruis followed Bell as he drove directly to the agreed upon meeting place, and Ruis never lost sight of him. Once they arrived, Ruis immediately confiscated the cocaine, searched Bell and his vehicle, and found nothing. Ruis promptly turned the cocaine over to Chaney when he arrived at the meeting place.
On November 4, 2008, Corporal Jacob Sparks (“Sparks”), along with three other officers from the Pittsylvania County Sheriff's Department, met with Bell at a predetermined location in preparation for another controlled buy between Bell and appellant. The officers searched Bell and his vehicle for any contraband or cash, and found nothing. Bell made a cellular telephone call to appellant, which was recorded, and learned that appellant was at his mother's house in Alta Vista, Virginia. Sparks gave Bell $1,100 to pay appellant for the cocaine he had obtained from appellant on November 1, 2008. Sparks also wired Bell with video recording equipment as well as audio recording equipment that was capable of broadcasting.
Bell then drove to appellant's mother's house in Alta Vista with the officers following him, and gave appellant the $1,100 in payment for the November 1, 2008 cocaine transaction. Bell subsequently rode with appellant to a local bank where appellant made a cash deposit. After returning to appellant's mother's house, appellant told Bell he would call Bell later that day because he could not give Bell any cocaine at that time since he was at his mother's house. Bell left appellant's mother's house, and went to meet the officers at the designated meeting place. After waiting for some time at the designated meeting place for appellant to call Bell, the officers and Bell relocated to the original location where they had met earlier in the day.
As Bell was driving to the original location, appellant called Bell on his cellular telephone, and told Bell he was ready to meet with Bell at appellant's house in Pittsylvania County. After being outfitted again with the audio and video recording equipment, Bell drove to appellant's house and went with appellant to the same two-car garage behind appellant's house. Appellant went to the same five-gallon bucket as before, and weighed out an ounce of cocaine for Bell. Appellant then ripped off a piece of the black plastic trash bag containing the cocaine, wrapped Bell's cocaine in the piece of plastic bag, and handed Bell the cocaine. Bell placed the cocaine in his pocket, left appellant's house, met with Sparks, and handed Sparks the cocaine. The officers searched Bell and his vehicle, and found nothing.
After the two controlled buys, Bell moved to Roanoke, Virginia, and worked construction at William Fleming High School. On January 21, 2009, Ruis paid for Bell's stay in a hotel in Roanoke. As Bell was leaving the high school on January 22, 2009, he noticed a suspicious van in which he thought he saw appellant. Bell immediately telephoned Ruis, and Ruis stated Bell sounded upset and afraid that something was going to happen to him. Bell was moved to another hotel as a result of the telephone call, and appellant was arrested on a warrant based on the November 4, 2008 cocaine sale.
Appellant was indicted on February 17, 2009, in the trial court for the sale of cocaine on November 1, 2008, and the sale of cocaine on November 4, 2008. Both were charged as a second or subsequent offense. Prior to trial, appellant filed a motion to sever the charges for separate trials, a motion to strike the indictment surplusage, and a motion in limine requesting the trial court enjoin the Commonwealth from using Cox's testimony at trial. The trial court granted the motion to strike as surplusage language “a second or subsequent offense” from the November 1, 2008 indictment, but denied the motion to strike the language from the November 4, 2008 indictment.
The trial court also denied the motion to sever on the grounds that the evidence of the November 1st transaction was necessary to prove the offense of the November 4th transaction as a second or subsequent offense. Lastly, the trial court denied the motion in limine on the grounds that Cox's testimony was relevant and that the relevance was not outweighed by the prejudicial effect. At the hearing, the Commonwealth proffered the anticipated testimony of Cox and Bell.
At the jury trial on October 15–16, 2009, Bell testified regarding his purchase of cocaine from Tweedy. Bell testified that he was the middle man, and had purchased the cocaine from Tweedy for appellant. Bell stated
Cox also testified at trial, over appellant's continuing objection, that he supplied appellant with cocaine from June 2008 until appellant's arrest in January 2009. Cox also stated that he had previously...
To continue reading
Request your trial
-
Castillo v. Commonwealth
...de novo the trial court’s application of defined legal standards to the particular facts of a case [...]." Doss v. Commonwealth, 59 Va. App. 435, 455, 719 S.E.2d 358 (2012) (alteration in original) (quoting Blue v. Commonwealth, 49 Va. App. 704, 710, 644 S.E.2d 385 (2007) ).In this case, ap......
-
Holloman v. Commonwealth
...“connection” for joinder under Rule 3A:10(c). Smith, 263 Va. at 18–19, 557 S.E.2d at 226 ; see also Doss v. Commonwealth, 59 Va.App. 435, 449–50, 719 S.E.2d 358, 365–66 (2012) (applying Smith to hold that the gradation structure of an earlier version of Code § 18.2–248 established the conne......
- Farrell v. Warren Cnty. Dep't of Soc. Servs.
-
Goodall v. Clarke
... ... for a total of 51 years. The sentencing order was entered ... April 10, 2017. Commonwealth v. Goodall ... Case Nos ... CR16F014280-01 through -04, CR16F014280-06 through -07 ... Goodall ... appealed his ... first offender as to each violation ... Mason v. Commonwealth. 430 S.E.2d 543, 544 ... (Ct. App. Va. 1993): see Doss v. Commonwealth ... 719 ... S.E.2d 358, 366 (Ct. App. Va. 2012) (same) ... [ 3 ] There is also a specific subsection ... for ... ...