Gagelonia v. Com.

• Decision Date: 03 June 2008
• Docket Number: Record No. 2343-06-2.
• Citation: 661 S.E.2d 502,52 Va. App. 99
• Parties: Gregory L. GAGELONIA, a/k/a Jerome White v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

661 S.E.2d 502

52 Va. App. 99

Gregory L. GAGELONIA, a/k/a Jerome White v. COMMONWEALTH of Virginia.

Record No. 2343-06-2.

Court of Appeals of Virginia, Richmond.

June 3, 2008.

Anthony G. Spencer, for appellant.

Richard B. Smith, Special Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HUMPHREYS and McCLANAHAN, JJ., and BUMGARDNER, Senior Judge.

ROBERT J. HUMPHREYS, Judge.

Gregory Gagelonia, a/k/a Jerome White ("White"), appeals his convictions of possession with intent to distribute more than five pounds of marijuana, transporting controlled substances into the Commonwealth, and possession of a firearm while in possession of a controlled substance with the intent to distribute, in violation of Code §§ 18.2-248.1, 18.2-248.01, and 18.2-308.4, respectively. White argues that the Commonwealth withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and asks us to reverse his convictions and order a new trial. For the reasons that follow, we affirm his convictions.

BACKGROUND

A. "The Delivery"

In mid-July of 2005, United States Postal Inspector Evelyn Cross ("Cross") received information that a suspicious package had arrived in Richmond's airmail facility from Peoria, Arizona. The package listed the sender's name as "Karen Russell," and the recipient's name and address as "Simone Russell, 2807 Hartman Street," an address in Henrico County. Cross went to the facility and took possession of the package, which weighed 23 pounds, 4.4 ounces, and had an expected delivery date of July 16, 2005. Recognizing the characteristics of illegal drug packaging, Cross contacted a Henrico County canine unit to further inspect the package. Based on the canine unit's results, Cross obtained a federal search warrant for the package. When Cross opened the package, she found a ball of green leafy material wrapped in hardened Styrofoam and cellophane. She again contacted the Henrico police and, together, they made arrangements to conduct a "controlled delivery" of the material, which they repackaged using a similar box and the original packing labels. Henrico police also obtained a search warrant for 2807 Hartman Street, the intended destination of the package.

On July 16, 2005, Henrico Police Investigator Shawn Diasperra ("Diasperra") of the Technical Support Unit arrived in the area of 2807 Hartman Street at 7:00 a.m. and began video surveillance of the home. Investigator Paul Ronson ("Ronson"), the lead investigator in the case, arrived slightly prior to 8:00 a.m., but did not begin directly watching the house until approximately 10:00 a.m.

At some point in the morning, Diasperra observed a postal carrier drive by 2807 Hartman Street without stopping. White, who had previously been sitting on the stoop of the house, got into a gray Pontiac and began driving in the same direction as the postal vehicle. After White had been gone "three or four minutes," he returned to the house. The mail carrier verified that a man had approached him and asked if he had a package for 2807 Hartman Street, but was unable to identify the man.¹ Approximately twenty to thirty minutes after White returned, Cross drove past the house in another mail truck without stopping. Cross noticed White sitting on the stoop, and opined that White's behavior was consistent with "a person expecting a package." Cross continued down the street, turned around, parked the vehicle, retrieved the package, and approached White. White remarked that Cross was not "the regular carrier," and Cross informed White that the package was addressed to "Ms. Russell." White nodded, and signed the delivery receipt as "J. Russell." Cross then returned to her vehicle and returned to the post office. White entered the house with the package a few minutes later.

Ronson and the "entry team" entered the house at 11:19 a.m. and executed the search warrant. The entry team found the package unopened in the front room of the house and secured White, who denied any knowledge of the contents of the package. Also present in the house were Canice Butcher ("Butcher") and her four-year-old child.

White initially identified himself as Gregory Gagelonia ("Gagelonia") and said he was a resident of the house, but was unable to provide supporting identification. He then said that he was at the house waiting for someone named "Todd," and was helping with the mail, "because the female that was at the house was pregnant at the time." White also said that he had been living on Dove Street in Richmond until he had been shot there, and had since moved to a residential hotel. A search of White revealed $859 in cash, a cell phone, and a small Bible containing an address in Texas. A subsequent search of White's car revealed a .357 revolver, medical documents, and mailing receipts, all bearing Gagelonia's name. White acknowledged ownership of the gun.

Todd Bradley ("Bradley") lived at 2807 Hartman Street with Butcher, his girlfriend, at the time of the delivery. There was no resident of the house named "Russell." White, whom Bradley knew as "Tony," had asked Bradley if he could use his address to receive packages. Bradley agreed, and White had received at least three packages at Bradley's address during the previous one to two months, but Bradley had not known what was in the packages. White had called Bradley the morning of the delivery and informed him that a package would be arriving that day, but did not tell him what was in that package. Bradley had purchased marijuana from White in the past, which they had smoked together.

Ronson and his team contacted Bradley after they executed the search warrant at his house and told him to come home. When he arrived, Bradley denied knowledge of the contents of the package and told police he only knew that defendant was expecting a package.

Bradley told Ronson that he had seen White at a hotel in Chesterfield County about two weeks before the delivery, and brought Ronson to this hotel. Ronson went to Room 314 of the Inn Town Suites in Chesterfield County later that afternoon based on what he had learned from Bradley. There, he encountered Debbie Fletcher ("Fletcher"), the renter of the Pontiac, and Fletcher and the defendant's child. After speaking with Fletcher, Ronson searched the hotel room, in which he found $1,000 in cash, numerous shipping documents, and "O sheets," or an accounting ledger used to represent the inflow-outflow of drugs and money. Police also found a digital scale in the room that contained marijuana residue. White admitted that he had purchased the scale because he thought it was a "good deal." White also admitted to Ronson that he had been staying in Room 314 of the Inn Town Suites, but made no statements regarding the documents found in the room.

Postal Inspector Cross later assembled a postal tracking history for 2807 Hartman Street, and discovered that five packages from Texas had been delivered to that address in May-June 2005. The packages weighed 11 pounds 3 ounces, 1 pound 8 ounces, 9 pounds 14 ounces, 35 pounds 7 ounces, and 15 pounds 13 ounces, respectively.

An analysis at the Department of Forensic Science revealed that the "green leafy" substance delivered in the package on July 16, 2005 was 190.97 ounces of marijuana. The gun found in the Pontiac was in working condition.

B. Preliminary Hearing

The General District Court of Henrico County ("GDC") held a preliminary hearing on December 7, 2005 styled Commonwealth of Virginia v. Gregory Leonard Gagelonia. Ronson was the only witness, and over White's objections, was allowed to testify to a number of facts that were not within his personal knowledge.² Among other things, Ronson testified that White had gotten into his car during the surveillance, drove after the mail carrier's truck, and had a conversation with the mail carrier. The GDC certified charges for possession with intent to distribute, transporting a controlled substance into the Commonwealth, and possessing a firearm while attempting to distribute marijuana.

C. Trial

On January 9, 2006, a grand jury returned indictments based on the charges certified by the GDC. On April 11, 2006, White appeared for a bench trial in the Circuit Court of Henrico County ("trial court").

In addition to presenting the evidence outlined above, the Commonwealth also asked the court to qualify Ronson as an expert in illegal drug distribution, which it did. Ronson then opined that the Styrofoam and cellophane materials surrounding the marijuana in the box were intended to disguise the scent of the marijuana during shipping. Ronson also testified that in his opinion, the amount of marijuana in the box was inconsistent with personal use and would have a street value of over $61,000.

Bradley also testified as a witness against White, and acknowledged that he had been charged with conspiracy to distribute marijuana as a result of the delivery on July 16, but stated that the Commonwealth had not made him any promises of leniency. During cross-examination, White's counsel asked him if he expected to get any favorable treatment with his charge as a result of his testimony. Bradley responded: "Well, I leave that to my attorney to advise me. I hope for a fair trial, and my attorney is going to do the rest."³

White then took the stand on his own behalf and testified that his real name is Jerome Leslie White, but he had given the police the name of an old friend, "Greg Gagelonia," because he had once been fingerprinted while using that alias. He admitted that he used to live in Texas, but denied knowing anyone in Peoria, Arizona. White also testified that when Cross had delivered the package, he had "signed what she told me to sign. She said Russell, so I signed Russell." He said he then went inside to tell Butcher about the box, and after she told him that no one named Russell lived there, he had intended to give the box back to the...