McMillan v. Com.

Decision Date16 January 2009
Docket NumberRecord No. 080622.
Citation671 S.E.2d 396
PartiesWillis Alexander McMILLAN v. COMMONWEALTH of Virginia.
CourtVirginia Supreme Court

Charles E. Haden, for appellant.

Robert H. Anderson III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and RUSSELL, S.J.

OPINION BY Chief Justice LEROY ROUNTREE HASSELL, SR.

I.

In this appeal from the Court of Appeals we consider: whether the evidence is sufficient to prove beyond a reasonable doubt that a defendant possessed cocaine with the intent to distribute in violation of Code § 18.2-248; and whether a circuit court erred by permitting the Commonwealth to introduce in evidence an exhibit that purports to establish that the defendant had a prior felony conviction.

II.

The defendant, Willis Alexander McMillan, was indicted by a grand jury in the City of Hampton for the following offenses: possession of cocaine with intent to distribute in violation of Code § 18.2-248; possession of a firearm while in the possession of cocaine in violation of Code § 18.2-308.4; possession of a firearm after having previously been convicted of a felony in violation of Code § 18.2-308.2; possession of a concealed weapon in violation of Code § 18.2-308; and feloniously disregarding a visible or audible signal by a law enforcement officer in violation of Code § 46.2-817.

During a bench trial in the Circuit Court of the City of Hampton, the defendant objected to the admission of an exhibit that purported to show that he had been convicted of attempted arson when he was 14 years old, in violation of Code §§ 18.2-77 and 18.2-26. The circuit court admitted the exhibit in evidence over the defendant's objection. The defendant also asserted in the circuit court that the evidence was insufficient to establish beyond a reasonable doubt that he had possession of cocaine and, thus, he could not be convicted of possession with intent to distribute.

At the conclusion of the bench trial, the court found the defendant guilty of evading and eluding a police officer in violation of Code § 46.2-817 and fined him $100. The court convicted the defendant of possession with intent to distribute cocaine, possession of a firearm while possessing drugs, possession of a firearm by a felon, and possession of a concealed weapon.

The court fixed the defendant's punishment as follows: twelve years imprisonment for possession with intent to distribute cocaine; five years imprisonment for possession of a firearm while possessing drugs; five years imprisonment for possession of a firearm by a felon; and six months imprisonment for the possession of a concealed weapon.

The defendant appealed his convictions to the Court of Appeals. Among other things, the defendant contended that the circuit court erred by admitting in evidence the exhibit that purported to demonstrate that he had a prior felony conviction. The defendant also asserted that the evidence was insufficient to prove that he had actual or constructive possession of the cocaine. The Court of Appeals denied the defendant's petition, McMillan v. Commonwealth, Record No. 1488-07-1 (January 16, 2008), and we awarded the defendant an appeal.

III.

Applying well-established principles of appellate review, we will state the evidence in the light most favorable to the Commonwealth, the prevailing party in the circuit court. Bishop v. Commonwealth, 275 Va. 9, 11, 654 S.E.2d 906, 907 (2008); Pruitt v. Commonwealth, 274 Va. 382, 384, 650 S.E.2d 684, 684 (2007).

On June 9, 2005, Robert Bowers, a Virginia State Police Officer, was operating a radar device, designed to measure the speed of motor vehicles, in the city of Hampton on Interstate 64. Officer Bowers observed a car traveling east on Interstate 64 and a license plate was not affixed to the front of the car. The officer, whose police cruiser was situated on the shoulder of the highway, drove his cruiser onto the interstate and followed the car. Lushawn Carolina was driving the car and the defendant was a passenger.

Carolina drove the car to an exit on Interstate 64 and entered Rip Rap Road at a high rate of speed. Officer Bowers, who was following Carolina's car, activated his police cruiser's emergency lights in an attempt to stop Carolina's car. Carolina drove his car onto a residential street and he entered the driveway of a residence. Carolina got out of his car and began to walk to the front door of the residence. Officer Bowers parked his police cruiser, got out of his car, and directed Carolina to return to the car he had been driving. Carolina complied and sat in the driver's seat.

As Officer Bowers approached the driver's window of Carolina's car, he smelled an odor of "burnt" marijuana. After the officer asked Carolina for his driver's license and registration, Carolina responded that his license had been suspended, the car belonged to his brother, and Carolina did not have the vehicle registration card.

Bowers saw Carolina "lean[] forward as if he were about to open [the glove compartment], but he leaned back straight up in his seat and he didn't open the glove compartment." Carolina presented Officer Bowers with a Virginia identification card, but he did not have a driver's license.

Officer Bowers asked Carolina how did he know that the registration card was not in the glove compartment since he had not opened it to search for the card. Carolina opened the glove compartment and Officer Bowers saw the registration card on top of several traffic summonses. Officer Bowers also observed a "Crown Royal bag." The Crown Royal bag was made of purple cloth and had been used to package a bottle of Crown Royal Canadian whiskey, which was not inside the bag.

Officer Bowers directed Carolina to exit his car and sit in the police cruiser so that the officer could separate Carolina from McMillan. Officer Bowers checked to be sure that Carolina had no weapons on his person. Officer Bowers and Carolina sat in the police car for about 15 minutes while the officer prepared traffic summonses and waited for another State police officer to arrive at the scene.

As Officer Bowers conversed with Carolina in the police car, McMillan, who remained in the passenger seat of Carolina's car, began to move "around in the seat and he was looking back in [the] direction" of the police cruiser. Carolina told Bowers that he wanted McMillan to drive Carolina's car once Bowers had issued the traffic summonses.

Bowers went to Carolina's car where McMillan remained seated. Bowers obtained McMillan's driver's license and returned to his police cruiser to ascertain the status of McMillan's driver's license.

Officer Bowers told Carolina that Bowers had smelled marijuana in the car and he believed that Carolina and McMillan had "something illegal." Carolina repeatedly told Officer Bowers that the officer had no reason to search the car and could not do so.

Officer Bowers returned to Carolina's car and gave McMillan his driver's license. Officer Bowers repeatedly asked McMillan to open the glove compartment so that the officer could determine to whom the summonses had been issued. McMillan refused to open the glove compartment. McMillan told Officer Bowers that he should ask Carolina to open the glove compartment "because it wasn't his [McMillan's] car and he [McMillan] didn't have anything to do with what was in the glove compartment." Subsequently, Officer Bowers opened the glove compartment, retrieved two traffic summonses and in the process removed the "Crown Royal bag."

Officer Bowers opened the "Crown Royal bag" and saw what appeared to be "chunks of ... rock cocaine." Officer Bowers, who was standing on the passenger side of Carolina's car, glanced at his police cruiser to watch Carolina. McMillan, who was in the front passenger seat, "jumped out" of the driver's door of Carolina's car and "ran fast." The police officers were unable to apprehend him. Carolina, however, was arrested and Officer Bowers conducted a search of the car. McMillan was arrested 12 days after he fled from Officer Bowers.

During the search of Carolina's car, Officer Bowers found a loaded Smith & Wesson .40 caliber pistol under the driver's seat. He also found under the driver's seat a large plastic bag that contained a small baggie with crack cocaine residue.

Officer Bowers found a "loaded [G]lock" .40 caliber pistol under the passenger seat where McMillan had been sitting. The pistol was "fully loaded with 15 rounds in the magazine and one in the chamber." The officer also found, behind the gun under the passenger seat, a clear plastic baggie that contained "four other balled up baggies."

After Officer Bowers had searched the car, he "took a closer look inside of the Crown Royal bag that [he] had opened earlier." The "Crown Royal bag" contained a clear plastic baggie and 13 individually wrapped zip-lock baggies containing what appeared to be crack cocaine.

Officer Bowers also found a shoe box on the back floorboard area behind Carolina's seat. The shoe box contained sneakers that were the same size as the shoes that Carolina was wearing at that time. The shoe box contained 78 of the "same type zip-lock baggies that [Officer Bowers] had found the crack cocaine in. They were all empty."

Betty Jane Blankenship, a forensic scientist with the Virginia Department of Forensic Science, testified that she conducted DNA profiles on swabs that she obtained from McMillan and swabs "from the grip trigger" of the pistol that was found under the passenger seat where McMillan had been seated. The DNA profile "from the grip trigger matched perfectly the DNA profile of Willis McMillan." Blankenship gave the following testimony about the DNA profile:

"Question: And you said it was a match. And is there a certain ratio that you use in order to provide a Certificate of Analysis?

"Answer: Yes. We do a statistical analysis on the DNA...

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