Herrington v. Commonwealth
| Decision Date | 12 November 2014 |
| Docket Number | Record No. 1083-13-4 |
| Court | Virginia Court of Appeals |
| Parties | DONALD ARTHUR HERRINGTON v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Alston, Huff and Chafin
Argued at Alexandria, Virginia
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James J. Ilijevich for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Donald Arthur Herrington ("appellant") was convicted in a jury trial of possession with intent to distribute or sell a Schedule I or II controlled substance in violation of Code § 18.2-248 and was sentenced to a term in prison of 15 years. On appeal, he challenges (1) the trial court's denial of his motion to quash the amended indictment which had been certified by the general district court as a different offense; (2) the trial court's denial of appellant's motion to waive counsel and to represent himself at his trial; (3) the trial court's denial of appellant's motion to dismiss the indictment as it was tried after the speedy trial time limit set forth in Code § 19.2-243; (4) the trial court's granting of the Commonwealth's motion to continue on February 20, 2013 when the Commonwealth did not show good cause for the continuance; (5) the trial court's failure to order a mistrial following multiple inappropriate and prejudicial comments about appellant by the Commonwealth, resulting in appellant's right to a fair trial beingprejudiced; and (6) the trial court's failure to strike the Commonwealth's evidence, and the jury's error in finding appellant guilty of possession of a Schedule I/II substance, with intent to distribute, when there was no credible evidence that appellant arranged a drug transaction and that the narcotic pills, oxycodone, found on his person were not lawfully his pills, obtained through a valid prescription.
On May 25, 2012, Deputy Kurt McBride of the Stafford County Sheriff's Department was working with an informant to arrange an undercover purchase of drugs. Using the informant's cell phone, and posing as the informant, McBride exchanged text messages sent to a person known as "Don" on another cell phone (the second phone). McBride asked "Don" to "hit [him] up" when he was nearby the next day, and asked what "number I can look forward to." McBride received a response that he would get "at least thirty."
On May 26, 2012, the informant's phone received text messages from the second phone that he had gotten "30s instead." A text advised McBride that they were leaving a "store in Woodbridge" and that "they r v." McBride responded by text asking what type of car he would be driving. The second phone called the informant's phone, and McBride observed the informant having a conversation. They agreed to meet at a McDonald's restaurant.
A series of text messages were exchanged regarding the meeting. Finally, the second phone sent a text message "I am here." The police observed appellant in the passenger seat of a green sedan that Andrea Flood was driving. The police confronted appellant and Flood. The second phone, which appellant admitted was his, was on the center console of the vehicle. The police observed two bulges near appellant's waistband. One bulge was appellant's wallet, which contained $496 in cash. The wallet also contained twenty blue oxycodone pills and six orangepills packaged in cellophane. The other bulge was an unmarked prescription drug bottle containing 109 blue oxycodone pills and five unidentified orange pills.
Earlier in the day on May 26, 2012, appellant traveled with Kim Burgess and Flood to Dr. Gupreet Bajwa's office, where Burgess obtained a prescription for 180 pills of oxycodone. They traveled to a pharmacy in Lorton, where Burgess filled the prescription.
An expert witness who examined the blue pills found on appellant indicated that they were thirty milligram tablets. They were also marked with a "V," which is indicative of a greater street value.
Appellant produced evidence that on May 7, 2012, Bajwa wrote a prescription for appellant for 180 oxycodone pills. Appellant testified that Flood, who was his girlfriend on the date of his arrest, abused pain medication. Appellant claimed that both Flood and Burgess were using his phone on May 26, 2012. He said he thought he was going to be meeting an individual to get Dilaudid pills for Flood and to repay that person a portion of a debt owed by Flood. Appellant said he did not send all the text messages that the Commonwealth had introduced into evidence. He said that he had the bottle of pills with him because the safe at his home had been broken, and he worried that one of the people living with him might take the medication when he was not home. Appellant said he made money by buying and selling various types of merchandise, but was not dealing drugs. Appellant admitted having prior felony convictions.
On appeal, appellant argues that it would have been lawful for the Commonwealth to seek both an indictment for possessing a controlled substance and a direct indictment for possessing a controlled substance with the intent to distribute. He contends, however, that because he was arrested upon a warrant charging under Code § 18.2-248 and the district court certified a charge under Code § 18.2-250, the Commonwealth could not then seek an indictmentfor a violation of Code § 18.2-248. We disagree and for the reasons that follow affirm the trial court's decision to deny appellant's motion to quash.
Generally, the decision to grant a motion to quash an indictment "rests in the sound discretion of the [trial] court." Commonwealth v. M'Caul, 3 Va. (1 Va. Cas.) 271, 301 (1812). However, because this issue requires us to interpret the principles governing preliminary hearings and the limitations they may impose on subsequent proceedings, it is a question of law which this Court is required to review de novo. See Williams v. Commonwealth, 53 Va. App. 50, 55, 669 S.E.2d 354, 356 (2008).
Appellant was initially charged by warrant with possession of a Schedule I or II controlled substance with the intent to manufacture, sell, give, or distribute, in violation of Code § 18.2-248. The general district court held a preliminary hearing on August 28, 2012. Finding no probable cause to support the possession with intent to distribute charge pursuant to Code § 18.2-248, the general district court amended the warrant to felonious possession of a Schedule I or II controlled substance in violation of Code § 18.2-250 and certified the felonious possession charge to the grand jury. Subsequently, however, the Commonwealth presented an indictment for the original charge under Code § 18.2-248 to the grand jury, which indicted appellant on that charge.
Appellant made a motion to quash or amend the indictment, contending that the grand jury had wrongly returned an indictment on an offense that had not been certified. The trial court held that, absent the district court's entry of final judgment on a lesser-included offense, the Commonwealth "was within its rights to offer" the indictment reinstating the intent element under Code § 18.2-248.
The principles governing the holding of a preliminary hearing and any limitations it might impose on a subsequent indictment are well settled.
It is well-established that when the Commonwealth seeks to prosecute an adult for a felony, it has several options how to proceed, including direct indictment, presentment, information, or arrest warrant followed by a preliminary hearing in the general district court. The preliminary hearing which attends prosecution of an arrest warrant is essentially a screening process . . . [to ascertain] whether there is reasonable ground to believe that the crime has been committed and . . . the accused is the person who committed it. Similarly, direct indictment by grand jury results from a finding of "just or probable cause" that the accused committed a specified criminal offense. Although neither a preliminary hearing nor an indictment is jurisdictional and constitutionally imposed, it is reversible error to deny such statutory rights whenever asserted by an accused.
Armel v. Commonwealth, 28 Va. App. 407, 409, 505 S.E.2d 378, 379 (1998) (alterations in original, citations and some internal quotations omitted).
A ruling in a preliminary hearing normally does not preclude the Commonwealth from obtaining a subsequent indictment. A later indictment constitutes a "new" charge, wholly "distinct from the original charge." Id. at 410, 505 S.E.2d at 380. Such a case involves "two separate prosecutions arising from the same criminal conduct," Wright v. Commonwealth, 52 Va. App. 690, 701, 667 S.E.2d 787, 792 (2008), with the first being considered an "entirely different proceeding" from the second, Duggins v. Commonwealth, 59 Va. App. 785, 793, 722 S.E.2d 663, 667 (2012). However, if a district court convicts the defendant on a warrant alleging a misdemeanor, its ruling amounts to a final judgment, which, consistent with principles of double jeopardy, prohibits the Commonwealth from thereafter prosecuting the defendant on some greater offense. See Moore v. Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187, 190 (1977) (); see also Greenwalt v. Commonwealth, 224 Va. 498, 501, 297 S.E.2d 709, 711 (1982) ().
The Commonwealth may move to nolle prosequi a pending charge in district court before seeking a direct indictment. Under settled principles, a nolle prosequi terminates a criminal prosecution...
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