Emerson v. Com., Record No. 0471-03-1.

Decision Date08 June 2004
Docket NumberRecord No. 0471-03-1.
Citation43 Va.App. 263,597 S.E.2d 242
PartiesJason Jermaine EMERSON v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

S. Clark Daugherty, Public Defender (Office of the Public Defender, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ELDER, CLEMENTS and FELTON, JJ.

CLEMENTS, Judge.

Jason Jermaine Emerson was convicted in a bench trial of possession of cocaine with intent to distribute, in violation of Code § 18.2-248. On appeal, Emerson contends the trial court erred (1) in denying his motion to suppress his statement during a custodial interrogation admitting ownership of a pair of shorts that contained cocaine and (2) in finding the evidence sufficient to sustain his conviction.1 Finding no error, we affirm the conviction.

I. BACKGROUND

"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va.App. 539, 540, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence established that, on May 9, 2002, Detective M.C. Pederson and Corporal Francis B. Mazzio, Jr., joined by other police officers of the Vice and Narcotics Division of the City of Norfolk Police Department, executed a search warrant for narcotics and weapons at 1538 East Ocean View Avenue, Apartment 10, in the City of Norfolk. Emerson was named in the search warrant. When the officers entered the small, one-room apartment, Emerson, the sole occupant, was in bed. In order "to clear the apartment" for the search, the officers handcuffed Emerson and took him outside to Mazzio. Mazzio had him sit on the front porch of the apartment, an area "like a motel room balcony," while the other officers conducted the search. Emerson, who was in public view while sitting on the porch, was wearing only boxer shorts.

Knowing that Emerson would need to be transported to police headquarters if any illegal narcotics or weapons were found in the apartment and that it was department "policy to dress the subject" before transporting him, Corporal Mazzio asked Emerson "what clothing he wanted" to wear. In response, Emerson described the specific clothes he wanted, including a particular shirt, a particular pair of shoes, and a pair of jean shorts that were on the floor beside the bed. Mazzio then "stuck [his] head through the [open] door" of the apartment and asked for the clothing.

Detective Pederson was inside the apartment preparing to start the search when she heard Mazzio "yell[ ] in" that he needed certain items of clothing from the apartment so that Emerson could get dressed, including "a pair of shorts that [were] on the floor ... beside the bed." Pederson found a pair of jean shorts lying on the floor beside the bed. She picked them up and, pursuant to department policy, searched them "[t]o make sure there's no weapons or narcotics or anything in the shorts or evidence that we may need before we release it from the apartment." Inside the pockets of the shorts, Pederson found a video-store card in Emerson's name, a "Newport cigarette box," and "some U.S. currency." Removing those items from the pockets of the shorts, Pederson took the requested shorts and other clothing outside and handed them to Mazzio.

"[A]ssum[ing]" that, pursuant to department policy, Pederson had already searched the jean shorts and other items of clothing before giving them to him, Corporal Mazzio did not search the clothes himself. He did not, however, see Pederson conduct such a search and was unaware that she had retrieved anything from the jean shorts Emerson had requested. It was only later that Mazzio was informed that Pederson had recovered various incriminating items from the shorts.

Upon receiving the jean shorts and other clothing from Pederson, Mazzio asked Emerson "if these were the ones he wanted, and he said yes." Mazzio gave the clothes to Emerson, and he put them on.

Inside the "Newport cigarette box" removed from the jean shorts, Detective Pederson discovered what she "suspected to be cocaine and marijuana."2 The cigarette pack contained seven plastic-bag corners, each containing off-white powder, which was later determined by laboratory analysis to be cocaine. In total, the cocaine weighed 4.01 grams. The cigarette pack also contained a cellophane wrapper containing 4.2 grams of plant material, which was later determined by laboratory analysis to be marijuana. The money found in the shorts amounted to $345 and consisted of fourteen $20 bills, six $10 bills, and one $5 bill. During the search of the closet in the apartment, the police found a shoebox containing a vehicle registration and bank envelopes bearing Emerson's name, thirty .38-caliber bullets, twenty-seven 9-millimeter-caliber bullets, and a gun holster. A small electronic scale was also found inside a shoe in the same closet. The police also recovered a glass pipe that had "some residue in the bottom of" it and found "marijuana seeds and residue all over the place" inside the apartment. No other "smoking devices" were found in the apartment.

Prior to trial, Emerson moved to suppress his identification of the shorts as his, arguing that his Miranda rights had been violated because he was in custody when the police asked about the shorts and he had not been advised of his rights before that questioning. Conceding Emerson was in custody when Corporal Mazzio asked him about the shorts, the Commonwealth argued that Mazzio's question whether the shorts Detective Pederson had given him were the shorts Emerson wanted was not an interrogation. The trial court denied Emerson's motion, finding that, although Emerson was in custody, Mazzio's question regarding the shorts did not constitute an interrogation requiring the giving of Miranda rights.

At trial, Detective Pederson was qualified as an expert in the investigation, use, and distribution of illegal narcotics. She testified that, based on the residue in the bottom of the glass pipe that was found in the apartment and the fact that "there was no screening in the pipe to show that it would be for cocaine use," the pipe was used exclusively "as a marijuana pipe." She further testified that the 4.01 grams of cocaine had a street value of at least $400 and that the denominations of the money found in Emerson's shorts were consistent with the sale of cocaine because dealers usually sell cocaine in $5, $10, $20, or $50 amounts. She also testified that those who buy cocaine for personal use typically purchase only $20 to $50 worth of cocaine each "time that they go to buy it," that the police typically "find weapons, ammunition, [and] holsters inside locations where narcotics are being sold," and that scales are used to "weigh out the amount of cocaine ... for resale." Pederson opined that, in light of the lack of any evidence in the apartment of cocaine use, Emerson's possession of the cocaine, cash, electronic scale, ammunition, and holster was inconsistent with personal use of the cocaine. On cross-examination, Pederson testified that a cocaine user "could consume seven packets of cocaine in a period of an hour" if he had "that bad of a habit."

At the conclusion of trial, Emerson argued the evidence was insufficient to prove he intended to distribute the cocaine. Finding the evidence sufficient, the trial court found Emerson guilty of possession of cocaine with intent to distribute, in violation of Code § 18.2-248.

This appeal followed.

II. MOTION TO SUPPRESS

On appeal, Emerson contends his statement while in custody to Corporal Mazzio that the jean shorts retrieved by Detective Pederson were "the ones he wanted" was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He asserts that his acknowledgment of ownership of the jean shorts was central to the determination that he possessed the drugs found in those shorts. He further asserts that, given the fact that Pederson had already searched the jean shorts and removed the illegal drugs from them, Mazzio's question regarding those shorts was designed to elicit an incriminating response. Thus, he argues, Mazzio's questions regarding his clothes were the functional equivalent of a custodial interrogation and should have been suppressed because the police did not advise him of his Miranda rights before questioning him.3 Hence, he contends the trial court erred in denying his motion to suppress the statement. We disagree.

On appeal from a trial court's denial of a motion to suppress, the burden is on the appellant to show that the denial of the motion constituted reversible error. See Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)

. In reviewing such a denial, "we consider the evidence adduced at both the suppression hearing and the trial." Blevins v. Commonwealth, 40 Va.App. 412, 420, 579 S.E.2d 658, 662 (2003),

aff'd on other grounds,

267 Va. 291, 590 S.E.2d 365 (2004). Moreover, we consider the evidence in the light most favorable to the Commonwealth, granting to the Commonwealth all reasonable inferences fairly deducible from the evidence. See Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). In addition, "we are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). We review de novo questions of law and the "trial court's application of defined legal standards to the particular facts of a case." Watts v. Commonwealth, 38 Va.App. 206, 213, 562 S.E.2d 699, 703 (2002).

It is well established that "`[t]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the...

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