Maxwell v. Commonwealth, Record No. 2648-05-2 (Va. App. 4/3/2007)
| Decision Date | 03 April 2007 |
| Docket Number | Record No. 2648-05-2. |
| Parties | JAYSON FRANKLIN MAXWELL, Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee. |
| Court | Virginia Court of Appeals |
Appeal from the Circuit Court of Prince Edward County, Richard S. Blanton, Judge, Circuit Court Nos. CR03000237-00 and CR03000242-00.
Upon a Petition for Rehearing En Banc.
A. Pierre Jackson for appellant.
Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General; Deana A. Malek, Assistant Attorney General, on brief), for appellee.
Before Chief Judge Felton, Judges Benton, Elder, Frank, Humphreys, Clements, Kelsey, McClanahan, Haley, Petty and Beales.
By memorandum opinion dated November 21, 2006, a panel of this Court reversed the judgment of the trial court. We stayed the mandate of that decision and granted rehearing en banc. Upon reconsideration, the November 21, 2006 mandate of this Court is vacated, and we affirm the trial court for the reasons stated by the dissent in Maxwell v. Commonwealth, No. 2648-05-2, slip op. 12-15, (Va. Ct. App. Nov. 21, 2006), adopting the dissenting opinion as our own. The appellant shall pay to the Commonwealth of Virginia thirty dollars damages.
Judges Benton, Elder, and Clements would reverse the trial court for the reasons stated in the panel majority opinion.
It is ordered that the trial court allow counsel for the appellant a total fee of $925 for services rendered the appellant on this appeal, in addition to counsel's costs and necessary direct out-of-pocket expenses.
The Commonwealth shall recover of the appellant the amount paid court-appointed counsel to represent him in this proceeding, counsel's costs and necessary direct out-of-pocket expenses, and the fees and costs to be assessed by the clerk of this Court and the clerk of the trial court.
This order shall be certified to the trial court.
On December 4, 2006 came the appellee, by the Attorney General of Virginia, and filed a petition praying that the Court set aside the judgment rendered herein on November 21, 2006, and grant a rehearing thereof.
On consideration whereof, the petition for rehearing is granted, the mandate entered herein on is stayed pending the decision of the Court, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
Jayson Franklin Maxwell (appellant) was convicted in a jury trial of possession of cocaine with the intent to distribute, third or subsequent offense, in violation of Code § 18.2-248, and possession of marijuana, in violation of Code § 18.2-250.1. On appeal, he contends the evidence was insufficient to support his convictions. We agree and reverse his convictions.
As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
The evidence relevant to this appeal is not in dispute. On March 25, 2003, Farmville Police Officer Bill Hogan drove his unmarked police vehicle to the Farmville Shopping Center, seeking to speak with appellant about an unrelated matter involving a check. Arriving at the shopping center shortly after 11:00 a.m., Officer Hogan saw appellant standing outside with another person. Displaying his badge of authority and sidearm, Officer Hogan approached appellant and said he needed to talk to him about the check. Appellant agreed to speak with the officer. As they spoke, Officer Hogan observed that appellant kept both of his hands "not in his pockets, but . . . down the front of his pants." Concerned for "officer safety" because he "couldn't see [appellant's] hands" and "it was a place for something to be hidden," Officer Hogan asked appellant to remove his hands and told him they "needed to go to the police department" to resolve the check matter. The officer explained he needed to pat appellant down "to see if he had anything on him" before putting him in the police car. Keeping his hands down his pants, appellant stepped back and told Officer Hogan several times he had nothing on him. When the officer reiterated his need to pat appellant down before transporting him to the police station, appellant fled.
After pursuing appellant on foot for a short distance, Officer Hogan returned to his vehicle to continue the pursuit. Officer Hogan proceeded down the large alley behind the shopping center in the direction he had seen appellant run. As he drove past a lumberyard behind the shopping center, Officer Hogan observed appellant "walk[ing] out from behind" several stacks of plywood located between the alley and a chain-link fence that enclosed the lumberyard. Officer Hogan took appellant, who was not wearing gloves, into custody and placed him in the vehicle of Virginia State Trooper Sean Givens, who had responded to the scene. The officers found $460 in cash on appellant's person. Officer Hogan then checked the area for contraband that appellant might have hidden or thrown. Finding nothing, he called for a drug-sniffing dog based at the local jail.
At approximately 11:15 a.m., K-9 Officer Robert Goldman responded to the scene with a drug-sniffing dog. The dog "alerted on" one of the stacks of plywood. Officer Goldman reached into the stack of plywood and retrieved a clear plastic bag that subsequent laboratory analysis revealed contained eight individually wrapped rocks of crack cocaine. The bag was located on the side of the stack next to the fence. After finding the bag, Officer Goldman rewarded the dog and ceased the search.
Trooper Givens engaged appellant in conversation during the search. He observed appellant's demeanor change from "talkative and cooperative" to "less talkative and distant" once the cocaine was discovered. Trooper Givens then transported appellant "to the police department for processing."
Coy Sams testified he was working at the lumberyard on the morning of March 25, 2003. He explained that he unloaded the fourteen units of plywood from a tractor-trailer truck around 8:30 that morning and stacked them outside the lumberyard fence in the location they were in when the police found the cocaine. He also testified that, after unloading the plywood, he spent the remainder of the morning working at the lumberyard, "going in and out of the warehouse and back and forth to the yard to retrieve products and materials for customers." He stated he saw no one near the stacks of plywood that morning until he saw the police in the area, but admitted he had not been "outside guarding the plywood the entire morning." Sams further testified he did not place the cocaine in the plywood.
Mac Robinson, Jr., testified he was employed by the lumberyard on March 25, 2003, and arrived to work that day at 9:30 a.m. He explained that he and three to six other employees were filling customer orders that morning, which required them to get the items asked for by the customers from the warehouse or the yard outside depending on where the items were stored. Robinson testified he did not see anybody around the stacks of plywood that morning, but acknowledged he was in and out of the warehouse all morning and was not near the plywood the entire time.
Robinson also testified that, later that day, he used a forklift to begin moving the stacks of plywood inside the fenced portion of the lumberyard. He explained that the area outside the fence was where delivered materials were unloaded from tractor-trailer trucks and the area inside the fence was where the materials were subsequently "stored and secured." He stated that, after removing the upper unit of plywood from one of the stacks, he discovered two clear plastic bags "of stuff" on top of the bottom unit in that stack. Robinson notified Sams, who called the police.
Officer Hogan returned to the lumberyard at approximately 1:45 p.m. and retrieved the two plastic bags. Subsequent laboratory analysis revealed the first bag contained twelve individually wrapped rocks of crack cocaine and the second bag contained marijuana. A single latent fingerprint of value for identification purposes was discovered on the plastic bag containing the twelve rocks of crack cocaine. Analysis of the fingerprint revealed it did not match appellant's fingerprints. No latent fingerprints of value for identification purposes were found on the other bags of drugs retrieved from the stacks of plywood.
Testifying for the Commonwealth, Robin Young of the fingerprint comparison section of the Division of Forensic Science explained that "circumstances have to be just right for a print to be left on a particular surface" and "not everything that is touched can . . . develop a print." Young further explained that fingerprints are "very fragile in nature" and may be destroyed "if you were to just wipe across [it] or if it comes into contact with your clothing or another item." Thus, Young stated, "[just] because there is no print of someone's on [an object] doesn't mean that person didn't touch it."
The Commonwealth introduced three photographs depicting (1) the alley behind the shopping center and the adjacent area outside the lumberyard's fence where the stacks of plywood were located on the morning of March 25, 2003, (2) the lumberyard's fenced-in yard behind the warehouse, and (3) the view from inside the warehouse of the area where the stacks of plywood were located. Collectively, the photographs showed that the area where the plywood was located was visible from only certain areas of the lumberyard warehouse and yard; that, in addition to the shopping center, there were several houses and commercial buildings in the vicinity of the lumberyard; the area where the plywood was located was unfenced and immediately accessible to the public from...
To continue reading
Request your trial