McBride v. Commonwealth

• Decision Date: 04 October 2022
• Docket Number: Record No. 1354-21-4
• Parties: Danjuan Antonio MCBRIDE v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 556

878 S.E.2d 44

Danjuan Antonio MCBRIDE

v.COMMONWEALTH of Virginia

Record No. 1354-21-4

Court of Appeals of Virginia.

October 4, 2022

Donna L. Biderman (Law Office of Donna L. Biderman, PLLC, on briefs), Fairfax, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges O'Brien, Lorish and Senior Judge Annunziata

OPINION BY JUDGE LISA M. LORISH

After granting Danjuan McBride's motion to strike—ruling that the evidence presented in the Commonwealth's case-in-chief was insufficient—the trial court allowed the Commonwealth to reopen its case and submit additional evidence. Based on that added evidence, the court "reversed" itself and ruled that the cumulative evidence was now sufficient and overruled McBride's motion to strike. Only this later order was reduced to writing. We find the trial court erred under Rule 3A:15(c) by not entering an order of acquittal after the court elected to grant the motion to strike based on the evidence presented in the Commonwealth's case-in-chief. Under Rule 3A:15 and our prior caselaw, a trial judge has broad discretion over whether to grant a defendant's motion to strike. But once a court grants such a motion, ruling that the evidence presented was insufficient, the court may not then allow additional evidence to be presented and change its ruling based on that added evidence.

BACKGROUND

McBride was tried by jury in the Circuit Court of Fairfax County on two counts of possessing a controlled substance with the intent to distribute ("PWID") under Code § 18.2-248. The indictment alleged that McBride was previously convicted of a substantially similar offense on two prior occasions. A charge of PWID, third offense, carries significant mandatory penalties under Code § 18.2-248.

Before trial, the Commonwealth filed a motion in limine asking the court to "[p]ermit the admission of two certified prior convictions from Baltimore City Circuit Court for possession with intent to distribute ... cocaine." The court took up this motion in limine the morning of trial and confirmed that the Commonwealth was asking for "some kind of decision or declaration now that these [documents related to the prior convictions] are admissible." The Commonwealth agreed, adding that "this is not an issue for the Jury," and explaining that the court should decide the issue before voir dire and opening arguments because if the documents were "not admitted, then the charge is not a third or subsequent [distribution] and that shouldn't be mentioned" to the jury.

McBride objected to the admissibility of the documents, arguing that they were not "certified or ... authentic cop[ies] of an order or of a conviction," and instead appeared to be from a later probation violation. The Commonwealth argued that the document was a sentencing order and admissible under Code §§ 8.01-389 and 8.01-390.¹ As the argument progressed, the court noted differences in names and aliases on some of the documents. McBride also pointed out a discrepancy in birth years, as well as a lack of case numbers tying the various records together.²

The court took two recesses during this pretrial hearing, considering additional records offered by the Commonwealth as well as the Maryland code sections pertaining to the drug offenses. During this lengthy hearing, the Commonwealth voiced its concern that it was "not comfortable starting trial and having jeopardy attached if there's an issue with these priors."

Ultimately, the court ruled that it would admit the documents because they were authentic and admissible as records of a judicial proceeding under Code § 8.01-389. The court explained, "I'm satisfied that these documents are what they purport to be, and are therefore probative." After detailing the documents for the record, the court explained again that the documents were "probative of whether the Defendant has been previously convicted."

After the ruling, the Commonwealth said:

[I]f there is a question about the date of birth that's list[ed] on here, I have the Defendant's criminal record, but there are also those documents in the file. I just want to make sure that I can introduce additional documents to the Jury if there's a question about this being a different person. I don't know if that's going to be raised to the Jury or if that was just an argument for Court in this ... pre-trial motion.

The court responded, "I guess we will see what comes up."

During the trial, the Commonwealth presented evidence about the stop and arrest of McBride from several police officers, who testified that they found McBride in possession of individually packaged vials of cocaine and heroin containing furanyl fentanyl. The Commonwealth also called as a witness the lab technician who tested the recovered drugs. Finally, the Commonwealth introduced the documents from Maryland that the court had ruled were admissible in the motion in limine hearing earlier that day. Then the Commonwealth rested, and the jury was dismissed for the evening.

The next morning, outside the presence of the jury, McBride moved to strike the Commonwealth's evidence as insufficient to establish that the two prior convictions were, in fact, McBride's. McBride argued the Commonwealth had thus failed to establish a necessary element of either PWID, third offense. In support, McBride pointed to the fact that the records were from a Maryland court, for someone (sometimes) identified as "McBride" (but also as Tony Brown) who had a Maryland address, but that there had been no evidence that McBride had any connection to Maryland at all—let alone that he had ever lived there and was the same "McBride"/"Tony Brown." McBride noted that none of the Commonwealth's testimonial or documentary evidence tied the McBride on trial to the person referenced in the Maryland documents through a birth date, social security number, DMV records, photos, fingerprints, or any other identifying information.

The Commonwealth responded that there was no question "that this is the same individual in these priors" and expressed concern "about the argument being raised" because "it's an appropriate argument for the Court," but not "an appropriate argument for the jury." The Commonwealth continued that the "Court is the gatekeeper of his priors, and his priors would not be admissible if it wasn't the same Defendant," and the records involved someone with the same "somewhat unique name." The Commonwealth also proffered that McBride had the same date of birth as the person in the Maryland records³ and that McBride did, in fact, live in Baltimore. The court then ruled:

I'm going to grant the motion to strike in part and deny it in part. I'm going to grant it as to the Commonwealth having proven that the Defendant has two prior convictions. I agree with [McBride's counsel] that there would have to be some more evidence on the record tying this Defendant, other than by the same name. We had no evidence, as [McBride's counsel] points out, as to the date of birth, photograph, mug shot, fingerprint, something tying them together. So I'll grant the motion to strike with regard to the two priors.⁴

The Commonwealth immediately noted an exception to the ruling and argued that "the Commonwealth relied on the Court's pretrial ruling that these [records are] connected to the Defendant," which is why it had not "put on any evidence about the Defendant's identity[ ] [b]ecause this is an issue for the trial court and not for the jury [and] [i]t is the Commonwealth's understanding that this is a legal issue and not a factual issue." The court responded, "I admitted them because I found them to be authentic. And they appeared to be tied to this Defendant. But I think the burden was on the Commonwealth to then tie them to the Defendant ... by showing some kind of identification for this gentleman that this was him." The Commonwealth replied that it thought the court had ruled that "these were admissible as Mr. McBride's priors[ ] [a ]nd that the jury was being informed that these were the Defendant's priors. " (Emphasis added).

The court then said, "I concluded that they were authentic, and they appeared to be related to this Defendant. But I think the burden is on you now. Do you still have the officers here?" After the Commonwealth confirmed a detective was still there, the court concluded, "Well, since it was a misunderstanding I'm going to allow you to reopen to call one witness."

McBride's counsel immediately objected, arguing that:

I wouldn't have made the whole argument that I made if I had known that [the Commonwealth] could call somebody afterwards. That's what the motion to strike is.... This isn't even a jurisdictional, or venue, or something like that. This is one of the elements of [the] offense, and now I've told [the Commonwealth] how it is that [it] failed to do [prove] of the elements of [the] offense, and then [the Commonwealth] gets a chance to come up and correct it.

The Commonwealth again responded that "in introducing certified priors ... it's a legal determination from the Court that these are authentic, that they apply to the Defendant, and that's an issue for the Court to decide; not for the jury." The Commonwealth further argued it was "prejudiced by this misunderstanding of the Court's ruling."

The parties and court continued to debate what additional evidence the Commonwealth could introduce to solve the problem, with McBride's counsel objecting to each suggestion. McBride's counsel argued that "I object because that's what the motion to strike, that's what you do. You do a motion to strike, if the Judge says, ‘Okay. Yes. I grant the motion to strike ’," that it was then improper for the court to allow the Commonwealth to "call different witnesses and put in different evidence" to correct the error. (Emphasis added). The court agreed McBride was "ordinarily right" but found that "there was apparently a genuine misunderstanding,...