Shilling v. Com.

• Decision Date: 04 August 1987
• Docket Number: No. 1191-85,1191-85
• Citation: 4 Va.App. 500,359 S.E.2d 311
• Parties: Larry Winfred SHILLING, a/k/a Larry Wayne Shilling v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 311

359 S.E.2d 311

4 Va.App. 500

Larry Winfred SHILLING, a/k/a Larry Wayne Shilling v. COMMONWEALTH of Virginia.

Record No. 1191-85.

Court of Appeals of Virginia.

Aug. 4, 1987.

William B. Moffitt; John A. Keats (Thomas Rawles Jones, Jr.; Lisa Bondareff Kemler; William F. Krebs; Moffitt & Jones; Keats, Krebs & Leckey, Alexandria, on briefs), for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, KEENAN and MOON, JJ.

JOSEPH E. BAKER, Judge.

Larry Winfred Shilling (appellant) appeals from judgments of the Circuit Court of Prince William County (trial court) which approved jury verdicts convicting him of separate offenses of unlawful distribution of methamphetamine on December 2, 1983 and January 12, 1984, and of conspiracy to distribute methamphetamine between November 22, 1982 and May 15, 1984. Although in his petition for appeal appellant alleged several errors we limited this appeal to the following issues: 1) whether the trial court erred when it denied appellant's motion to dismiss pursuant to Code § 19.2-294; and 2) whether under the indictments and facts proved in support of the conspiracy charge, Code § 18.2-23.1 is a bar to the prosecution of that charge.

Commonwealth of Virginia (State) proceedings began when State police authorities joined with Federal officers to investigate illegal drug activities in the Roanoke, Virginia area. As a result of initial investigations, Roanoke city police obtained a State court order on March 17, 1983 to view the toll records of appellant's home telephone. This was followed by a further State court order on May 28, 1983 authorizing the installation of a pen register on that telephone. On July 7, 1983, another State court order was obtained to view the telephone toll records for a second residence of appellant, and on October 4, 1984 a State order was obtained to install a pen register at appellant's second residence. As a result of these records and telephone taps, undercover agents were able to purchase controlled substances from appellant which led to appellant's State indictment and arrest on May 14, 1984. Appellant was charged with having illegally distributed methamphetamine on December 2, 1983 and January 12, 1984, and for conspiracy to distribute methamphetamine between those dates. Subsequently, without notice to appellant and in an ex parte hearing, the conspiracy indictment was amended to cover the dates November 22, 1982 through May 15, 1984.

In April 1984, Federal and State prosecutors agreed that the matters covered by the May 14, 1984 State indictments would be prosecuted by the State and the proceedings would be instituted by the Roanoke Commonwealth Attorney in a State court. It was further agreed that Federal agents would obtain a search warrant for appellant's residence and prosecute for any Federal violations discovered, as well as for any tax violation arising out of the several investigations. In the following month, on May 11, 1984, a Federal search warrant for appellant's residence was obtained and a search was made on May 14, 1984, simultaneously with appellant's arrest pursuant to the State indictments.

On June 21, 1984, appellant was indicted by a Federal grand jury for possession of methamphetamine with intent to distribute on May 14, 1984; however, that matter was dismissed in August 1984, without a trial.

On January 29, 1985, the State conspiracy indictment returned on May 14, 1984, was quashed. On February 4, 1985, the matter was again presented to a State grand jury which returned a new indictment charging appellant with conspiracy to distribute methamphetamine from November 22, 1982 through May 15, 1984. This charge and the two distribution charges were transferred from Roanoke to Henrico County where on April 16, 1985, the prosecutions ended in a mistrial. The matters were then transferred to Prince William County where all three charges were heard by a jury beginning July 29, 1985. Appellant's convictions on all charges give rise to this appeal.

I.

Appellant asserts that the issuance of a Federal search warrant on May 11, 1985, was a "proceeding" within the meaning of Code § 19.2-294, and that section thereafter barred any State prosecution for offenses which occurred prior to the issuance of the search warrant. The pertinent portion of Code § 19.2-294 on which he relies reads that "if the same act be in violation of both a state and a federal statute a prosecution or proceeding under the federal statute shall be a bar to a prosecution or proceeding under the state statute." (emphasis added). ¹ We do not agree that under the facts of this case Code § 19.2-294 constitutes a bar to appellant's prosecution under State law.

The initial investigations were conducted jointly by Federal and State authorities. Thereafter, in April 1984, Federal and State authorities agreed that the State would prosecute for specific events which occurred prior to the agreement and Federal authorities would prosecute for matters discovered by a subsequently obtained search warrant, and for any federal tax violations which may have occurred. Federal authorities did not intend to and have not prosecuted or proceeded against appellant for conspiracy or distribution of methamphetamine on the dates encompassed by the State charges.

Using the same pertinent language of Code § 19.2-294, the appellant in Owens v. Commonwealth, 129 Va. 757, 105 S.E. 531 (1921) claimed immunity from prosecution. After briefly reviewing the history of the section the Supreme Court of Virginia affirmed the conviction and said:

It is claimed for the accused that this statute creates an absolute bar, which may be invoked by persons prosecuted in the State courts at any time before conviction, without any reference to the time when either prosecution was commenced.... A construction which would thus enervate, impede and paralyze the administration of the criminal laws of the State should not be adopted unless the legislative intent to produce such a result is clearly indicated.

Bearing in mind that the general rule has always been that where courts have concurrent jurisdiction, the court which first takes jurisdiction always has priority and the right to conclude the specific litigation, we assume that the legislature did not intend by the ambiguous language used to change this general and salutary rule. We, indeed, have no doubt, in view of these considerations, that the legislature only intended by the amendment to provide that if, when a prosecution under a State law was commenced, the accused could show that before that time there had been a prosecution or proceeding against him under a Federal statute for the same act, then that the prosecution in the State court should be barred, thus requiring as a matter of law what had theretofore rested within the discretion of the courts as a rule of comity. Thus construed, the statute imposes no undue restraint upon prosecutions either under the Federal or the State law, and at the same time effectuates the true legislative purpose sufficiently manifested by the act.

Id. at 760-62, 105 S.E. at 532 (emphasis added).

Even if we considered the procurement of a Federal search warrant as a "proceeding" within the meaning of Code § 19.2-294, the facts here disclose that it was not procured "for the same act" but rather for possible subsequent violations. The prosecutors clearly delineated the acts to be prosecuted by the State and those reserved for Federal action. Procuring the warrant on May 11, 1984 was not an act of prosecution or a proceeding related to the offenses for which appellant was indicted on May 14, 1984. The agreement clearly defined separate acts. The Court in Owens recognized that such agreements were the general practice of prosecutors for different jurisdictions. Id. at 759-60, 105 S.E. at 531. In the case before us it is clear that no Federal prosecution or proceeding was begun for the same acts charged in the May 14, 1985 State indictments and, therefore, the State was the first and only sovereign to prosecute the charges constituting the basis for this appeal.

Appellant suggests that Sigmon v. Commonwealth, 200 Va. 258, 105 S.E.2d 171 (1958), requires reversal of appellant's convictions and constitutes a bar to further prosecution. We disagree. Sigmon was arrested as a result of joint Federal and State investigatory efforts. Contrary to the agreement in the case before us, in Sigmon the Federal and State prosecutors agreed that the charges against Sigmon would be disposed of "under federal statutes, in the United States District Court." Id. at 259, 105 S.E.2d at 173. Although charged and indicted by the United States for offenses alleged to have occurred in the counties of Floyd, Franklin and Appomattox, only the Floyd and Franklin charges were pursued. However, at sentencing the district judge was made aware of the Appomattox offense. When State officials became dissatisfied with the punishment inflicted on Sigmon, they obtained a State indictment for the offenses which occurred in Appomattox. In reversing Sigmon's conviction the Supreme Court of Virginia said:

The provisions of the statute cannot be rendered ineffective merely because some State or Federal officer may be disappointed or disgruntled over the action taken by the court first assuming jurisdiction. The test is not whether the accused be convicted...