Hetmeyer v. Com.

• Decision Date: 04 October 1994
• Docket Number: No. 2315-92-1,2315-92-1
• Citation: 19 Va.App. 103,448 S.E.2d 894
• Court: Virginia Court of Appeals
• Parties: Gregory Orson HETMEYER v. COMMONWEALTH of Virginia. Record

Page 894

448 S.E.2d 894

19 Va.App. 103

Gregory Orson HETMEYER v. COMMONWEALTH of Virginia.

Record No. 2315-92-1.

Court of Appeals of Virginia.

Oct. 4, 1994.

Mitchell D. Broudy, Virginia Beach, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and BRAY, JJ.

BRAY, Judge.

Gregory Orson Hetmeyer (defendant) was convicted by a jury of possession of cocaine and heroin with the intent to distribute. On appeal, he complains that the trial court erroneously admitted evidence of a dog's response to currency discovered in defendant's motel room and challenges the sufficiency of the evidence to support the convictions. We find no error and affirm the convictions.

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Traverso v. Commonwealth, 6 Va.App. 172, 176, 366 S.E.2d 719, 721 (1988). The jury's verdict will not be disturbed unless plainly wrong or without evidence to support it. Id. The credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters solely for the fact finder's determination. Long v. Commonwealth, 8 Va.App. 194, 199, 379 S.E.2d 473, 476 (1989).

Similarly, in reviewing a trial court's ruling on a suppression motion, we consider the evidence in the "light most favorable to ... the prevailing party below," the Commonwealth in this instance, and the decision of the trial judge will be disturbed only if plainly wrong. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). The record before us includes evidence adduced at both the trial and any suppression hearings. DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 542-43 (1987), cert. denied, 488 U.S. 985, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988). To prevail on appeal, the defendant must "show ... that the denial of [his] motion ... constitue[d] reversible error." Motley v. Commonwealth, --- Va.App. ----, ----, 437 S.E.2d 232, 233 (1993).

While investigating illicit drug activity in the City of Virginia Beach, Detective Neal Thompson undertook surveillance of a local motel room. For several hours, no one was observed in or about the room, and Thompson, accompanied by Detective John Tosloskie and Thomas Sochor, an agent with the Immigration Service, decided to approach and knock at the door. In response, the closed curtains adjoining the door of the room "parted," defendant "looked out," and Thompson displayed his badge and identified himself as a police officer. "[H]olding the curtain open," defendant moved his hand rapidly "from the dead bolt to the handle ... as if he was having a problem with the locks." Meanwhile, Thompson noticed two males "inside the motel room just running back and forth" and "around ... one of the beds."

After several minutes, defendant opened the door and admitted the officers. Defendant acknowledged that he had engaged the room and produced identification which indicated that he resided in a neighboring city. Detective Thompson advised the three occupants that he was conducting a narcotics investigation, and each agreed to a search of the room.

On the "first bed," Thompson found a "bright yellow" AM/FM cassette player with seven "individual little plastic bags" and two "large chunks" of crack cocaine and ten "packets" of heroin hidden in its battery compartment. Without objection, Thompson, an "expert in the area of narcotics investigation distribution," testified that the cocaine was packaged in a manner and quantity indicative of distribution "on the street" and opined that the "large chunks of crack cocaine" were "not really something you'd try to sell on the street. It's just too much." ¹ Thompson also noted that he had never seen anyone possess more than "[o]ne or two" packets of heroin "for themselves."

A suitcase was also resting on the bed and contained property belonging to all three men and a "bundle" of $2900. The money was separated into two $1,000 lots and one $900 lot and tightly bound with rubber bands. According to Thompson, this packaging was consistent with the "usual" practice of drug dealers. The suitcase also contained a "razor knife[,] which drug dealers use to cut up big chunks [of cocaine] ... into smaller little rocks for sale," and an A.C. "adaptor" compatible with the cassette player. In addition, a "set of hand scales" and three digital pagers, all items Thompson related to drug distribution, were discovered in the room.

During questioning by Thompson, defendant described the suitcase as "mine," "everybody's," a "community type" bag and claimed "some property" found in the case, including approximately $1500 of the cash which he attributed to "savings." Defendant also claimed one of the pagers but denied knowledge of the drugs, stating that the cassette player was owned by "a guy[ ]" "not in the room," although he was unable to recall the man's name.

Thompson retained possession of the cash and, upon arrival at police headquarters, arranged with Officer George Ball, a "narcotics dog handler," to provide a "drug dog ... to come up ... to run on the money." Detective Tosloskie agreed to assist in this procedure and Thompson passed him the "bundle." Tosloskie, as instructed by Ball, obtained five new interdepartmental envelopes, "stuffed paper towels in four envelopes," placed the money in the fifth, and "laid them [all] in the hallway." Ball then entered the hall with his dog, Doc, who, after walking past "at least three of the envelopes[,] ... immediately upon reaching the envelope with the money in it[,] ... attacked it with his paws and ... teeth."

Prior to trial, defendant moved the court to suppress the evidence of Doc's reaction at the currency "lineup." During the attendant hearing, Ball, an officer in the police K-9 Unit for over 24 years, testified that Doc was a "narcotics dog," certified by the Virginia State Police following extensive joint training with Ball in 1988 and recertified annually thereafter in the detection of cocaine, heroin, marijuana, and "derivative" odors. Additionally, Doc was trained monthly by Ball in the aromatic search of "various items" under diverse circumstances, and the two had investigated "over 447 cases" together. Ball could recall only a single "false alert" in the dog's history, and Doc had established a detection accuracy of ninety-five to ninety-eight percent.

Ball estimated that the "majority" of his actual investigations with Doc during recent years involved the examination of currency for suspect odors, or "currency runs." In such instances, Ball, as here, instructs persons assisting in the "run" to fill "at least four ... envelopes" with "anything" to "make it look like it's U.S. currency" and a fifth envelope with the "contaminated currency." The envelopes are then placed "in the middle of the floor either in a line or a checkerboard pattern," and Doc is released in a "find mode." If he detects a targeted scent, Doc makes "a hit" and will "tear at the package."

Ball and Doc have been recognized as "expert witness[es] in narcotics detection" by both state and federal courts, including courts of this Commonwealth. Without objection, Ball was offered and accepted by the trial court as an "expert in the area of dog handling and as a [sic] interpreter of his dog, Doc."

During argument in support of his motion to suppress, defendant complained that the reliability of the currency "lineup" was compromised because the "control" envelopes did not contain substances with odors like those commonly "used in making ... cocaine" ² and that evidence of the dog's response would "unduly prejudice" him. The trial judge concluded, however, that these considerations "go[ ] to the weight of the evidence, not as to [its] admissibility," and overruled defendant's motion.

THE DOG

"It is well settled in Virginia that the opinion of an expert witness is admissible 'where the jury, ... is confronted with issues' that 'cannot be determined intelligently merely from the deductions made and inferences drawn on the basis of ordinary knowledge, common sense, and practical experience....' " Schooler v. Commonwealth, 14 Va.App. 418, 420, 417 S.E.2d 110, 111 (1992) (quoting Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749, 755-56 (1979)). The "expert's testimony is admissible not only when scientific knowledge is required, but when experience and observation in a special calling give the expert knowledge of a subject beyond ... common intelligence and ordinary experience." Hubbard v. Commonwealth, 12 Va.App. 250, 254, 403 S.E.2d 708, 710 (1991), aff'd, 243 Va. 1, 413 S.E.2d 875 (1992) (quoting Neblett, Adm'r v. Hunter, 207 Va. 335, 339, 150 S.E.2d 115, 118 (1966)). Manifestly, a jury of lay persons required the assistance of an expert to properly interpret and give appropriate probative value to Doc's behavior in this instance.

It is equally "well established that the admissibility of expert testimony is within the sound discretion of the trial court, and that court's decision will not be disturbed absent an abuse of discretion." Patterson v. Commonwealth, 3 Va.App. 1, 11, 348 S.E.2d 285, 291 (1986). See also Toro v. City of Norfolk, 14 Va.App. 244, 252, 416 S.E.2d 29, 33 (1992). A challenge to an "expert's ... methods and determinations ..., even by other experts, does not render inadmissible expert opinion based on those ... methods and computations" but goes to the "weight of the evidence," raising "factual questions to be determined by the jury." Hubbard, 12 Va.App. at 255, 403 S.E.2d at 710.

A dog's response to particular stimuli and the interpretations of such response by an expert was approved by the Supreme Court as substantive evidence against an accused in Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982). There, as here, the...