Grier v. Com.

• Decision Date: 29 May 2001
• Docket Number: Record No. 0421-00-1.
• Citation: 546 S.E.2d 743,35 Va. App. 560
• Court: Virginia Court of Appeals
• Parties: Derrick GRIER v. COMMONWEALTH of Virginia.

546 S.E.2d 743

35 Va. App. 560

Derrick GRIER v. COMMONWEALTH of Virginia.

Record No. 0421-00-1.

Court of Appeals of Virginia, Chesapeake.

May 29, 2001.

S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant.

Stephen R. McCullough, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BRAY and BUMGARDNER, JJ., and HODGES, Senior Judge.

BRAY, Judge.

Derrick Grier (defendant) was convicted in a bench trial for possession of heroin with the intent to distribute, possession of a firearm while in possession of the heroin, and possession of a firearm by a convicted felon. On appeal, defendant contends the conviction for heroin possession was based upon an indictment that did not set forth a crime and was, therefore, void. He also challenges the sufficiency of the evidence to prove the two firearm offenses. Finding no error, we affirm the convictions.

In accordance with well established principles, we consider the evidence most favorably to the Commonwealth, the prevailing party below. Boney v. Commonwealth, 29 Va.App. 795, 798, 514 S.E.2d 810, 811 (1999).

I.

Portsmouth Police Officer P.J. Grover, while conducting a "spotting operation" in the 1700 block of Chestnut Street, observed a black Oldsmobile "pull into the area" and "stop[ ] in the road." A woman was operating the vehicle and a man, later identified as defendant, occupied the front passenger seat. Aided by binoculars, Grover watched two men approach the passenger window of the car and exchange cash for a "small item.... Then a ... female pulled up in a small vehicle[,] ... got out[,] ... yelled in the direction of the black Oldsmobile, `I didn't think there was any dope out here,'" and purchased a "small item" at the "driver's side" of the vehicle. After witnessing several similar transactions, including the purchase of a "capsule" at the "driver's window," which Grover "could see" and "suspected to be ... heroin," Grover summoned a "takedown" team of officers. While awaiting arrival of the team, Grover observed another cash for "capsule" transaction at the passenger window.

Portsmouth Police Sergeant B.K. Abdul-Ali, accompanied by Officer James Lewis, responded to Grover's radio message and "fell in behind" the Oldsmobile as the vehicle "pulled out." Abdul-Ali "activated emergency equipment on the police car" and, "[a]s the vehicle ... began to stop," noticed defendant, still in the front passenger seat, "lean[ ] forward and [sit] back real fast." Abdul-Ali and Lewis approached the car, opened the passenger door, "had [defendant] step out. . . [and] patted him down for weapons." Abdul-Ali then "reached down in the front of the [passenger] seat area," beneath "where defendant was sitting" when he "leaned forward," and discovered a plastic bag containing 44 capsules of heroin, "on top of a 9mm semi-automatic handgun, the offending drugs and weapon.

Defendant was arraigned in the trial court on a three-count indictment, Count 1 of which alleged he "did knowingly and intentionally possess an imitation controlled substance represented to be Heroin, a controlled substance listed in Schedule I of the Drug Control Act. An Unclassified felony, in violation of 18.2-248 ...."¹ Immediately following arraignment and conclusion of the pretrial colloquy between defendant and the court, the prosecutor advised the court that the indictment referenced "an imitation controlled substance," although "[t]his is possession with intent to distribute a controlled substance case, not ... an imitation controlled substance." The court, noting the indictment correctly recited "the code section," inquired of defendant's counsel if "that create[d] any problem[,]" and he responded, "No." The court then ordered Count 1 of the indictment "amend[ed] ... to delete the word `imitation,'" provided "there is no objection and no difficulty." Neither defendant nor his counsel voiced objection and, later, at the suggestion of the court, both joined the prosecutor and initialed the amended language on the face of the indictment.

Trial proceeded and defendant was convicted of the subject offenses, all without any objection by defendant or his counsel with respect to the indictment.

II.

On appeal, however, defendant first complains that Count 1 of the original indictment did "not state an offense" and, therefore, was "invalid" and not properly subject to amendment. Accordingly, defendant contends the attendant conviction is void and subject to challenge "for the first time on appeal." Article I, Section 8, of the Constitution of Virginia, requires, inter alia, "[t]hat in criminal prosecutions a man hath a right to demand the cause and nature of his accusation...."² However, "`[w]hile the Constitution guarantees every man [such] right..., it does not prescribe the manner" of compliance, and the legislature may satisfy the constitutional imperative by presentment, information, indictment or "'any other manner.'" Forester v. Commonwealth, 210 Va. 764, 766, 173 S.E.2d 851, 853 (1970) (citation omitted). Significantly, " the right guaranteed by the Constitution is the right to demand the cause and nature of [the] accusation.... It is a right [an accused] may waive if he chooses, and which he will be held to have waived unless he asserts it.'" Id. (emphasis added).

In compliance with the mandate of Article I, Section 8, Code § 19.2-217 provides, in pertinent part, that "no person shall be put upon trial for any felony, unless an indictment or presentment shall have first been found or made by a grand jury...." See Code § 19.2-216 (defining "indictment" "presentment"). Code §§ 19.2-220, 221, and Rule 3A:6 specify the format and contents of an indictment, including the requisite "`notice of the nature and character of the accusations against'" an accused. Sims v. Commonwealth, 28 Va.App. 611, 619, 507 S.E.2d 648, 652 (1998) (citation omitted). However, "`Where is no constitutional requirement in Virginia that felony prosecutions be by indictment. The [indictment] requirement is only statutory and may [also] be waived.'" Forester, 210 Va. at 766, 173 S.E.2d at 853 (citation omitted) (emphasis added); see Code §§ 19.2-217, 227; see also Triplett v. Commonwealth, 212 Va. 649, 651, 186 S.E.2d 16, 17 (1972)

("requirement for indictment is not jurisdictional and constitutionally imposed but ... only statutory and procedural").

Thus, with the constitutional guarantee of a particularized accusation and the legislative and judicial responses subject to waiver, "it seems clear that [an accused's] constitutional rights are not violated by requiring that if he questions the validity of an indictment that ... he shall do so before he goes to trial on a plea of not guilty and is convicted." Forester, 210 Va. at 766, 173 S.E.2d at 853 (citation omitted). Accordingly, the failure "to question the form or validity of the indictment, or any defect or omission therein, before the verdict," constitutes a waiver "to be more fully advised of the cause and nature of [the] accusation.'" McDougal v. Commonwealth, 212 Va. 547, 549, 186 S.E.2d 18, 20 (1972); accord Washington v. Commonwealth, 216 Va. 185, 192, 217 S.E.2d 815, 822 (1975)

; Forester, 210 Va. at 767,

173 S.E.2d at 854.

Integrating the constitutional and statutory rights of an accused to be informed of the criminal conduct alleged and the attendant doctrines of waiver, Code § 19.2-227, the statute of jeofails, provides that "[j]udgment in any criminal case shall not be arrested or reversed upon any exception or objection made after a verdict to the indictment or accusation, unless it be so defective as to be in violation of the Constitution." Similarly, Rule 3A:9 requires, inter alia, that "(b) [d]efenses and objections based on defects in the institution of the prosecution or the written charge upon which the accused is to be tried, other than that it fails to ... charge an offense, must be raised by motion made ... (c) ... at least 7 days before the day fixed for trial." However, in deference to the constitutional prerequisite of notice, the Rule, like the statute of preserves the right of an accused to challenge "the failure of the written charge ... to state an offense... at any time during . . . the proceeding." Rule 3A:9(b) (emphasis added).

Thus, by statute, Rule of Court, and case law, the constitutional right of an accused "to demand the cause and nature of his accusation" is well established. However, failure to timely assert such protection constitutes a waiver both of exception or objection to any constitutional and procedural infirmities.

The Constitution gives to the accused the right to demand the cause and nature of his accusation, and this right cannot b taken away from him, but there is n inhibition on the legislature to fix a stage of the procedure beyond which he cannot go in the assertion of his constitutional right. He must be given a full and fair opportunity of asserting his right, but after this has been afforded him and he has failed to avail himself of it, he cannot complain.

Flanary v. Commonwealth, 133 Va. 665, 667-68, 112 S.E. 604, 604 (1922).

Here, the issue is not the absence of an indictment but, rather, failure of the original instrument to set forth a crime. However, defendant neither timely asserted his right to demand a proper allegation, by objection or otherwise, nor protested amendment of the indictment correcting the deficiency. To the contrary, with the court, the Commonwealth and defendant all fully aware of the precise offense contemplated by the indictment, defendant acknowledged, in open court, that the original indictment presented no "problem" and joined in an amendment correctly charging the crime. Now, after suffering conviction, defendant, for the first time on appeal, challenges the procedural course followed by the trial court with his acquiescence and complicity.

Under such circumstances, defendant clearly waived...