McCary v. Com., Record No. 2684-00-1.

• Docket Nº: Record No. 2684-00-1.
• Citation: 36 Va. App. 27, 548 S.E.2d 239
• Case Date: July 03, 2001
• Court: Court of Appeals of Virginia

548 S.E.2d 239
36 Va. App. 27

Clarence Edward McCARY
v.
COMMONWEALTH of Virginia

Record No. 2684-00-1.

Court of Appeals of Virginia, Chesapeake.

July 3, 2001.

548 S.E.2d 241

Charles E. Haden, Hampton, for appellant

Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HUMPHREYS, JJ.

ELDER, Judge.

Clarence Edward McCary (appellant) appeals from his bench trial convictions for possession of cocaine with intent to distribute and transporting a controlled substance into Virginia. On appeal, he contends the trial court erroneously (1) denied his motion to suppress items seized during a warrantless search of his motel room, (2) attributed to him cocaine found on the ground beneath the broken window of his motel room, and (3) concluded the evidence was sufficient to prove he acquired cocaine outside Virginia and transported it into the state.

We affirm the trial court's denial of the motion to suppress because appellant relinquished his expectation of privacy in the motel room when he effected extensive damage to the room and its furnishings, rendering him potentially both civilly and criminally liable. We also hold the trial court did not commit reversible error in attributing to appellant the cocaine found outside his room. Appellant was charged with only one count of possession with intent to distribute, and the additional cocaine found on his person and in his room was sufficient both to prove a prima facie case and to support his conviction. Finally, we hold that a police officer's testimony that appellant admitted purchasing the cocaine found on his person and in his room in North Carolina before coming to Virginia was sufficient to support his conviction for transporting cocaine into the Commonwealth. Thus, we affirm appellant's convictions.

I.

BACKGROUND

At about 9:30 a.m. on November 2, 1999, Newport News Police Officer V.D. Williams was dispatched to the Suburban Lodge. Upon his arrival, he learned from the manager that the man occupying room 225, appellant, "was making threats" to guests and employees, was "destroying property in the room" and had "stated he was not coming out of the room unless the police came in blazing with guns." The manager reported initially that a woman also was in the room. After talking to the manager and checking the records, Officer Williams "made a determination that [the woman] was not in the room," but he did not know with certainty that no one else was in the room.

Officer Williams went to room 225 with Officer A.L. Machesney. Williams identified himself as a police officer and asked appellant to come out and talk to him. Appellant responded, "I have two knives and I'm not coming gut unless you come in with guns." Officer V.D. Williams then contacted Officer Scott Williams, a member of the department's crisis intervention team,

When Officer Scott Williams arrived, appellant was "smashing things" inside the room and said he "wanted the police officers to kill him." When appellant eventually came out of the room, allowing the door to

548 S.E.2d 242

close behind him, Officer V.D. Williams pointed his weapon at appellant, and Officer Scott Williams ordered him to the ground. Appellant was "highly agitated" and a "tad bit irrational" but complied with the officers' order to lie down

Officer Scott Williams then frisked appellant for weapons and detected in his left front pants pocket a large bulge which felt like a powdery substance. He recovered a large clear plastic freezer bag containing a white powdery substance he suspected was cocaine. He then placed appellant under arrest and turned him over to Officer Machesney, who took appellant to his police car.

About a minute later, based on the complaint that appellant had damaged the room and the officers' uncertainty about whether anyone else was in the room, Officers V.D. Williams and Scott Williams opened the door and entered to conduct a visual inspection. The manager accompanied them. They discovered the room "in shambles." The rear window had been smashed and cabinets, glasses and a mirror destroyed, and there were holes in the dry wall. Upon entering, Scott Williams observed in plain view between the bedroom and bathroom areas a second clear plastic bag containing suspected cocaine. The officers continued to look through the glass in the bedroom, and five to ten minutes later, they found between the bed and the window that had been broken out a third clear plastic bag of suspected cocaine. Outside, on the ground beneath the broken window of appellant's second-floor room, Officer V.D. Williams found a fourth bag of suspected cocaine. Next to it were a white cabinet door that was "very similar" to one missing from the kitchen cabinet in appellant's room and a steak knife.

While appellant was still at the scene in Officer Machesney's custody, Vice Detective J.M. Wilson arrived, identified himself to appellant, and confirmed that appellant had been advised of his rights. Wilson said appellant appeared "as if he had been using [cocaine but was] coming down from the high." He described appellant as "very co-herent" and said "[We wasn't antsy like a normal person stoned on cocaine would be." Wilson questioned appellant about the cocaine found on appellant's person and in his room. Appellant originally claimed the cocaine was for his personal use but later admitted he was "bringing it to a guy in New York" and had obtained it in Raleigh, North Carolina.

Detective Wilson qualified as an expert and testified that the four bags of cocaine seized—which contained 81.15 grams, 125.61 grams, 124.58 grams, and 75.65 grams, respectively, for a total of almost 407 grams or about fifteen ounces—had a street value of about $40,700 and that possession of that quantity of cocaine was inconsistent with possession for personal use.

Appellant moved to suppress prior to trial, contending the warrantless search of his motel room was unreasonable.¹ The trial court denied the motion without explanation. At trial, when appellant moved to strike the Commonwealth's evidence and renewed his motion to suppress, the trial court noted it had already ruled on the motion to suppress and observed, "you have the management of a hotel calling for somebody to be removed and the activities of the defendant in this case that have been described to the Court, I think he gave up any expectations of privacy whatsoever in this hotel room."

During the trial testimony of Officer Scott Williams, the officer who collected the drugs at the scene, the Commonwealth offered into evidence the certificate of analysis for the four bags of cocaine, including the bag found on the ground beneath the broken window of appellant's second-floor motel room. Appellant's counsel stipulated to the chain of custody of the cocaine and posed no contemporaneous objection to the admission of the certificate. None of the bags of cocaine was offered into evidence. At the close of the Commonwealth's evidence, appellant's counsel "object[ed] to this Item No. 4, the bag [of cocaine] found outside the hotel. There's no indication that it came from the room ..

548 S.E.2d 243

We would ask that that certainly not be allowed in...." The trial court said

I don't think it makes any difference one way or the other in this case whether the Court excludes Item 4 or not. There's no reason to exclude Item 4. You've got a cabinet door right through the window, below there, with a bag of cocaine that is similar in nature from the standpoint of packaging and I just have no problem with it at all.... I don't see any reason to exclude it.

Appellant testified in his own behalf, denying that the officers found any cocaine on his person and denying that he told Detective Wilson he obtained the cocaine in North Carolina. He admitted that he "trashed the room" because he was "upset about something," but he denied being "stoned" and "plead[ed] the Fifth" as to "all four ... bags of cocaine."

At the close of all the evidence, appellant renewed his motion to strike and pointed out that the drugs he was accused of possessing were never admitted into...