Jackson v. Commonwealth
| Decision Date | 25 April 2023 |
| Docket Number | 0437-22-2 |
| Parties | ALONZO ROGER JACKSON v. COMMONWEALTH OF VIRGINIA |
| Court | Court of Appeals of Virginia |
COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF AMELIA COUNTY Joseph M. Teefey, Jr., Judge
M.G Henkle (Henkle Law Firm, on brief), for appellant.
Lucille M. Wall, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Huff and Callins Argued by videoconference
Alonzo Roger Jackson appeals his conviction for distributing a Schedule II controlled substance, second or subsequent offense, in violation of Code § 18.2-248, raising multiple assignments of error. For the reasons that follow, this Court affirms his conviction.
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party [below]." Poole v. Commonwealth, 73 Va.App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). Under that standard, this Court "discard[s] the evidence of the accused in conflict with that of the Commonwealth, and regard[s] as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn [from that evidence]." Bagley v. Commonwealth, 73 Va.App 1, 26 (2021) (third alteration in original) (quoting Cooper v. Commonwealth, 54 Va.App. 558, 562 (2009)).
In June 2020, a grand jury indicted Jackson for distributing a Schedule II controlled substance, second or subsequent offense. Before trial, Jackson objected to the Commonwealth entering into evidence an unredacted copy of a 2002 conviction and sentencing order indicating that Alonzo Roger Jackson, born August 6, 1972,[1] had pleaded guilty in the Circuit Court of Amelia County (the "trial court") to two counts of distribution of cocaine, third or subsequent offense, in violation of Code § 18.2-248. The order further indicated that three additional charges of cocaine distribution were nolle prosequied on the Commonwealth's motion. Jackson argued that the trial court should redact the order to exclude reference to the nolle prosequied charges. The trial court denied Jackson's motion, ruling that it was "not going to redact a record of the court."
During voir dire, Juror 10 stated that she knew Jackson because she "know[s] a lot of people in Amelia County." She said she "never spent time with" Jackson and further explained, Despite this, she maintained that her knowledge of Jackson would not impact her ability to judge the case fairly and impartially. She further stated that she had read about the case in the newspaper but did not remember any of the details and had not formed an opinion about the case. Jackson did not question Juror 10 any further, nor did he move to strike Juror 10 for cause[2] or use a peremptory strike to remove her from the jury. After Juror 10 was selected to sit on the jury, Jackson informed the trial court that he was satisfied with the jury composition.
Michael Holmes testified that he acted as a confidential informant for law enforcement for approximately two years and typically received $140 as compensation for each controlled buy of drugs. In March 2020, Holmes contacted law enforcement and "volunteer[ed]" to buy drugs from Jackson, from whom Holmes had purchased drugs previously. Holmes met with Amelia County Sheriff's Deputy R.W. Dunford to arrange the controlled buy. Deputy Dunford searched Holmes for drugs and gave him a cell phone with video and audio recording capability, $250 to buy drugs from Jackson, and Holmes's $140 compensation. Amelia County Sheriff's Investigators Philip Siegle and William Edwards searched Holmes's vehicle for drugs. The police did not find drugs on Holmes's person or in his car before he met with Jackson.
Holmes called Jackson and told him that he "needed to get street" or "a split," by which he meant half an eight-ball of crack cocaine. When Jackson agreed, Holmes drove to Jackson's house with Deputy Dunford following him in another vehicle.
Holmes recorded his subsequent interaction with Jackson, and the Commonwealth played the video during Holmes's trial testimony.[3] Although the video is shaky and difficult to hear at times, it shows Holmes driving to a house where he was greeted by two individuals, one of whom he later identified as Jackson. Jackson went inside and returned a few minutes later with a baggie containing a white substance that he handed to Holmes. Holmes identified the substance at trial as crack cocaine. During the transaction, Jackson asked Holmes, "[W]hy you gotta get it broke up like that? . . . You're going to smoke it all anyway."
Holmes gave the baggie to Deputy Dunford, who transported it to the Department of Forensic Science. The substance inside tested positive for cocaine.
Approximately seven months later, in October 2020, Holmes sent text messages to Deputy Dunford stating:
Holmes also called Jackson's counsel to explain that the "other bald head guy" was "Slim," also known as Roy Wilson.[4] At trial, Holmes explained that he sent the messages to Deputy Dunford and called Jackson's counsel-alleging Wilson, rather than Jackson, was the dealer-because someone was threatening to kill him or hurt him.[5] He further testified that unidentified people followed him around and "shot up" his car, causing him to move out of town for several months. He insisted that the messages were untrue and that he had, in fact, bought drugs from Jackson in March 2020, not from Wilson. Deputy Dunford, who knew Wilson, testified that Wilson was not the man in the video of Holmes's transaction with Jackson.
Holmes admitted that he had three prior felony convictions for drug offenses. At the time of trial, he also had pending charges in Amelia County for domestic assault and failure to appear, as well as four pending charges in Nottoway County, including charges of forgery of a public record and uttering a forged public record.
When Holmes was asked during cross-examination who would determine whether he would "get any consideration" in his pending Amelia County charges in return for his testimony against Jackson, Holmes responded, "The Judge decide." After additional questioning on this subject, the trial court interjected, Jackson did not object to the trial court's comments at that time. When the trial court questioned the relevance of the inquiry, Jackson's counsel moved on and questioned Holmes about the prosecutor's authority to decide to pursue charges.
At the conclusion of the Commonwealth's case, Jackson made a motion to strike, arguing primarily that Holmes's testimony was not credible. The trial court ruled that Holmes's credibility was a factual issue to be decided by the jury and denied the motion to strike. Jackson did not submit any evidence and renewed his motion to strike, which the trial court again denied.
Jury Instruction A, proposed by Jackson, stated:
The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer's testimony has been affected by interest or by prejudice against a defendant.
The Commonwealth objected, arguing that the instruction did not accurately state Virginia law. Jackson conceded that he knew of no Virginia cases supporting the instruction but directed the trial court to United States v. Luck, 611 F.3d 183 (4th Cir. 2010). The court found that, unlike Holmes's testimony, the informant's testimony in Luck was uncorroborated and Luck was therefore inapplicable. Accordingly, the trial court rejected Jury Instruction A but instructed the jury that it should consider each witness's credibility, including each witness's "interest in the outcome of the case" and "their bias."
The jury found Jackson guilty in July 2021. In October 2021, the parties appeared for sentencing but agreed to continue the case because the sentencing hearing had been set before a different judge than the judge who had presided at trial. In November 2021, Jackson, who was indigent, moved for the preparation of a trial transcript at state expense so that he could prepare a motion to set aside the jury verdict, "based in part on allegations of juror misconduct but also upon sufficiency of the evidence."[6] The parties convened again for sentencing in December 2021, approximately four months after trial. Jackson argued that he needed the trial transcript to prepare his motion to set aside the verdict and that there were "a number of arguments that [he] would like to bring before the Court."
The trial court denied the motion. First, the court found that Jackson already had an opportunity to challenge the sufficiency of the evidence in making his motion to strike that Jackson had not demonstrated that the passage of time had frustrated defense counsel's...
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