Spear v. Com., 791359

• Decision Date: 10 October 1980
• Docket Number: No. 791359,791359
• Citation: 270 S.E.2d 737,221 Va. 450
• Parties: Kenneth David SPEAR v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 737

270 S.E.2d 737

221 Va. 450

Kenneth David SPEAR v. COMMONWEALTH of Virginia.

Record No. 791359.

Supreme Court of Virginia.

Oct. 10, 1980.

Gordon H. Shapiro, Jonathan S. Kurtin, Roanoke (Harvey S. Lutins, Lutins, Shapiro & Albert, Roanoke, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

HARRISON, Justice.

Kenneth David Spear was tried on an indictment which charged that he "unlawfully and feloniously did manufacture with intent to distribute a controlled substance, to wit: methamphetamine, a Schedule I controlled substance." Virginia Code § 18.2-248. He was found guilty and sentenced to serve a term of ten years in the penitentiary and to pay a fine of $10,000. The verdict returned by the jury reads, in pertinent part, as follows: "We, the jury, on the issue joined, find the defendant, Kenneth David Spear, guilty of manufacturing methamphetamine, or possession of methamphetamine with intent to manufacture methamphetamine, a Schedule II controlled drug, as charged in the indictment...." ¹

The defendant claims that the court below erred in entering judgment upon the verdict of the jury which he alleges was fatally defective, and in giving the following instruction:

INSTRUCTION NO. 1

THE COURT INSTRUCTS THE JURY that if you believe from the evidence beyond a reasonable doubt that the defendant, Kenneth David Spear, manufactured methamphetamine, a Schedule II controlled drug, or possessed methamphetamine with the intent to manufacture, then you shall find him guilty and fix his punishment at confinement in the penitentiary for a period of not less than five nor more than forty years, and by a fine of not more than $25,000.

The evidence establishes, as defendant concedes, that he illegally manufactured methamphetamine. The defendant also admits that the Commonwealth introduced sufficient evidence to sustain a conviction of the possession by him of methamphetamine with intent to manufacture. Spear contends, however, that it cannot be determined from a reading of the jury's verdict whether he was convicted of manufacturing methamphetamine or possession with intent to manufacture. He says that the jury may not have been unanimous and that he may have been convicted with some jurors finding that he was guilty of manufacturing and others finding that he was guilty of possession with the intent to manufacture.

The Commonwealth argues that the instruction did not permit the jury to convict Spear of either of two entirely separate crimes. The language of the instruction mirrors the language of Code § 18.2-248, and the punishment given was consistent only with that section. Manufacturing and possession with intent to manufacture methamphetamine are offenses prohibited by the same code section. The verdict of the jury was returned on a form supplied by the trial court, and it followed the language of the statute and the quoted instruction. The jury had before it three alternative verdict forms: (1) not guilty, (2) guilty of the possession of methamphetamine, and (3) guilty of "manufacturing methamphetamine, or possession of methamphetamine with intent to manufacture."

It is clear that the defendant was on trial for manufacturing methamphetamine. The entire thrust of the Commonwealth's case was to establish that fact. The Commonwealth's Attorney so stated in his opening statement and in his closing argument to the jury. The defendant was kept under surveillance by law enforcement officers for several months prior to the search of his home and his arrest. Large quantities of chemical shipments were sent to and received by the defendant at various addresses. Only one day prior to his arrest defendant received 2,000 grams of phenylacetone, or "P-2-P", a necessary element in the manufacturing of methamphetamine. This compound was sent to a nonexistent company but was signed for and received by a tenant of the defendant and delivered by her to Spear. Defendant had an arrangement with tenants in his apartments to receive shipments when he was not present, for which he paid them small amounts of money. One tenant related a conversation she had with Spear in which he commented "how easy it would be to make" methamphetamine. She testified that she later received a sample of the drug from defendant who advised her to try it out, and who told her that if she could get rid of it for him she could have anything in excess of $500 an ounce. When the premises of defendant were searched numerous chemicals, reagents, sales, flasks, paraphernalia, and objects normally used in laboratories were found in the kitchen area. ² The items found included books dealing with chemicals and chemical reactions. A chemist for the State Bureau of Forensic Science, who accompanied the officers during the search, testified to finding 15 grams of methamphetamine in various utensils and objects in the kitchen. The chemist also found in a cabinet notes from which he was able to produce methamphetamine. He said:

(T)he necessary components were there to make it and I found the product there. I did not find a reaction in progress at the time we entered. But I found what the normal clean-up procedures would be going on after such reaction.

The defendant claimed that his long interest in methamphetamine had been triggered by the death of his first wife, which he attributed to that drug. His explanation for the drug found in his home was that it had been given to him by a friend who desired him to analyze it to see whether it was in fact methamphetamine. The jury obviously did not accept this explanation.

Every person accused of the commission of a crime and brought into court as a defendant has the right to demand and to be told in plain language the complaint against him, and where intent is an element of the crime charged, it must be set out in the indictment. We find no fatal defect in the indictment in the instant case. Although it charged that the defendant manufactured a controlled substance with the intent to distribute, the intent of the defendant to distribute was not an element of the crime of manufacturing, and its allegation was surplusage. The court properly made no reference to an intent to distribute in either its Instruction No. 1 or the suggested form verdict which the jury followed.

In determining the validity of a jury's verdict, it is necessary to discern the true intent of the jury. A verdict must demonstrate what a jury found or intended to find, and it is always to be read in connection with the indictment. If a verdict is otherwise proper it is not rendered void simply because it may contain unnecessary language or surplusage. We disregard technical irregularities in a verdict where the jury's finding is otherwise clear. In Williams v. Commonwealth, 153 Va. 987, 994, 151 S.E. 151, 153 (1930), we stated that the court would "go far in the disregard of defects in verdicts which have been accepted by the trial courts, but from which, notwithstanding such defects, the real finding of the jury may be determined, though it may not be accurately couched in the technical language of the law." See also Jackson v. Commonwealth, 218 Va. 490, 237 S.E.2d 791 (1977).

The verdict of the jury in this case is couched in the technical language of Code § 18.2-248 and follows specifically the language of the instruction of the court. The Commonwealth introduced a great volume of evidence showing the defendant's modus operandi, his acquisition of the necessary ingredients to make the drug, his possession of the required equipment, and his arrangement for the sale of the drug after manufacture. Spear's defense was that he was not a manufacturer, but rather the innocent possessor of methamphetamine, an offense prohibited by Code § 18.2-250. The court instructed the jury that in event it entertained a reasonable doubt as to whether the defendant was guilty of the possession of methamphetamine, or was guilty of "manufacturing methamphetamine or possession with intent to manufacture," it should find him guilty of possession. Thus, the trial court treated manufacturing and possession with intent to manufacture as one and the same offense, and possession as a lesser included offense.

Code § 18.2-248 provides, in pertinent part, that "it shall be unlawful for any person to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute a controlled substance." The penalty for a violation of this section with respect to a controlled substance classified in Schedule I or II is imprisonment for not less than five nor more than forty years and a fine of not more than $25,000. Methamphetamine is a controlled substance classified in Schedule II. Code § 54-524.84:6. The acts prohibited and made unlawful by Code § 18.2-248 are the manufacture, the sale, the gift, and the distribution of such substance. The statute likewise prohibits and makes unlawful the possession of such substance with the intent to manufacture the drug, or to sell it, or to give it, or to distribute it. This statute was obviously designed to make unlawful any trafficking or dealing in controlled substances. Code § 18.2-250 makes it unlawful for any person knowingly or intentionally to possess a controlled substance. The sale, gift, distribution, or possession with intent to sell, give, or distribute marijuana is treated separately in Code § 18.2-248.1.

In Stillwell et al. v. Commonwealth, 219 Va. 214, 218-19, 247 S.E.2d 360, 363 (1978), we said:

In its enactment of The Drug Control Act the General Assembly recognized that, except in very rare and most unusual cases, there can be no lawful possession, sale or distribution of drugs by anyone, particularly of those drugs classified in Schedules I, II and III, and listed in Code §§ 54-524.84:4, -84:6, -84:8. With few exceptions,...