Stamper v. Com.

• Decision Date: 18 January 1985
• Docket Number: No. 832043,832043
• Parties: Walter R.C. STAMPER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 682

324 S.E.2d 682

228 Va. 707

Walter R.C. STAMPER v. COMMONWEALTH of Virginia.

Record No. 832043.

Supreme Court of Virginia.

Jan. 18, 1985.

Emmitt F. Yeary, Abingdon, Nancyjean Bradford, Emoru (Yeary & Tate, P.C., Abingdon, on briefs), for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: All the Justices.

RUSSELL, Justice.

In a bench trial, Walter R.C. Stamper was convicted of possession of 3.88 pounds of marijuana with intent to distribute, and was sentenced to six years' confinement. His appeal raises questions concerning a variance between the indictment and the proof, the refusal of the trial judge to recuse himself, entrapment, the admissibility of evidence to prove the defendant's mental state, the sufficiency of the evidence to prove intent to distribute, and alleged errors in sentencing.

The facts are undisputed. At the time in question, the defendant was an attorney practicing law in Southwest Virginia. Agents of the Commonwealth suspected him of receiving controlled substances in payment of fees from defendants charged with drug offenses. The Commonwealth's Attorney of Smyth County and several law enforcement officers made an agreement with a suspect named Joseph B. Lacy McClanahan, owner of an auto body shop at Glade Springs, in Washington County, that McClanahan wouldn't "get any time" as a result of a drug charge pending against him in Smyth County if he would help the Commonwealth obtain evidence against other suspects. Among other things, the officials asked McClanahan to "find out what Mr. Stamper was into."

McClanahan called the defendant, told him he had been recommended by a client of the defendant, and said that he "needed a lawyer and wanted to talk to him." Stamper agreed to go to McClanahan's shop at Glade Springs on the afternoon of March 4, 1983. Before Stamper's arrival, a Virginia state trooper and an investigator for the Washington County Sheriff's Department gave McClanahan a white plastic bag containing 3.88 pounds of marijuana which had been confiscated in another case. They also "wired" McClanahan with a microphone and a radio transmitter concealed under his clothing. The officers hid themselves in a house adjacent to McClanahan's shop, where they had equipment which would receive McClanahan's conversations and record them on tape. With respect to the marijuana, McClanahan testified that the officers told him: " 'Don't you offer him nothing. You talk with him. You tell him you got it, don't offer it to him.' And I didn't."

The defendant drove to McClanahan's shop about 5:00 p.m. on March 4, 1983, accompanied by a man named Henderson. Stamper entered the shop while Henderson remained in Stamper's car, seated on the passenger side of the front seat. The officers overheard and recorded the conversation between Stamper and McClanahan, which was transcribed and admitted into evidence. In it, after discussing the details of McClanahan's "case," McClanahan said "I don't have much money right now, I've got some other stuff that I could get rid of...." Stamper asked if he had any guns to trade. McClanahan said "No. I got about five pounds of pot." Stamper asked if it was "good pot" and "[h]ow much is it going for a pound?" McClanahan said he had never sold it by the pound. Stamper asked how much he was getting for an "O.Z." McClanahan said "forty bucks." Stamper examined it and agreed that it didn't "smell too bad." Stamper then said that his fee would be $5,000.00 to represent McClanahan, $2,500.00 for each of two "cases" McClanahan said were pending against him, one in Smyth County and the other in Washington County. Stamper then said, "I'd be happy to take that as a retainer if you wanted." McClanahan asked for, and Stamper gave him, a receipt, which is in evidence, reciting, "I, Walter R.C. Stamper, acknowledge receipt of $2500 cash from Lacy McClanahan for a retainer. An additional $2500 is to be paid before completion of criminal charges in Washington County and Smyth County."

The officers watched through a window and took photographs as the defendant took the white plastic bag, containing the marijuana which was wrapped in six smaller plastic bags, reentered his car, handed the marijuana to Henderson, and drove away, southbound on Route 91. The officers followed in an unmarked car. They found Stamper's car parked on the right shoulder of the road, having turned east on Route 736. Stamper and Henderson were sitting in the car, and the large white plastic bag was visible near Henderson's feet, on the floor on the passenger side. The officers parked in front of the Stamper car, walked back to it, displayed an identification card, and announced that they were police officers. They opened the driver's door and told Stamper to get out. Stamper raced his car's engine, backed suddenly away, and then accelerated forward, striking one of the officers and striking their parked car as he sped away. The officers pursued in a high-speed chase. After about two miles the officers drew alongside Stamper and displayed their weapons. He came to a stop and surrendered.

The officers found a shotgun and two loaded revolvers in the defendant's car, but the marijuana was missing at the time of the arrest. Retracing the route of the chase, they found the large white plastic bag, still containing the six smaller bags of marijuana, lying on the right shoulder of the road--the side which would have been nearest the passenger during the chase.

The defendant was indicted for possessing, with intent to distribute, "three pounds of marijuana, more or less," in violation of "Section 18.2-248.1(a)(3)" of the Code. The cited subsection relates to possession, with requisite intent, of more than five pounds of marijuana, and fixes a penalty of five to thirty years' imprisonment for its violation. The preceding subsection, 18.2-248.1(a)(2), relates to possession, with requisite intent, of "more than one-half ounce but not more than five pounds of marijuana," which it penalizes as a class 5 felony, punishable by one to ten years' imprisonment, or alternative misdemeanor punishment; it would have been the proper section to cite to conform to the crime alleged in the indictment.

The defendant argues on appeal that the indictment is internally inconsistent and that a fatal variance occurred in that the evidence did not conform to the offense charged. This contention has no merit. Rule 3A:6 provides that error in or omission of the citation of the statute on which the prosecution relies shall not be ground for dismissal of an indictment or reversal of a conviction, unless the court finds that such error "prejudiced the accused in preparing his defense." Here, the indictment stated the quantity of marijuana allegedly possessed with reasonable certainty, and there was no possibility of surprise or prejudice to the defendant. The certificate of laboratory analysis, upon which the Commonwealth relied to prove the exact quantity of marijuana in the white plastic bag, was filed in the general district court on March 23, 1983, nearly five months before trial. Indeed, the discrepancy in the indictment was called to the court's attention by defense counsel, who suggested that it be amended.

Moreover, the defendant made no objection on these grounds until the time of sentencing. The criminal statute of jeofails, Code § 19.2-227, requires that any such objection to an indictment, to be a ground for reversal, be made before verdict. Rule 3A:9 is even more restrictive, requiring that defenses and objections based upon defects in the indictment be raised only by motion to dismiss made before pleading and at least seven days before trial. Thus, even if the objection were valid, it came too late.

About two months before trial, defense counsel called the trial judge and asked if he intended to preside at the trial of the Stamper case. The judge responded that the defendant did not appear in his court with great frequency and that he saw no reason to recuse himself. Defense counsel pointed out that the defendant's mental state on March 4, 1983, might be in issue, and that Stamper had appeared as counsel in the judge's court that very day, a few hours before his arrest. The judge did not recall the occasion at the time of the conversation with counsel. No motion for recusal was made before or during trial, and the defense did not interpose an insanity plea.

No further reference was made to the matter of recusal until, on the twenty-first day after the entry of final judgment, the defendant appeared with new counsel and moved the court to set aside the judgment and grant a new trial on the ground that the trial judge should have recused himself ab initio. Among other things, this motion was based upon the theory that it was improper for the judge to preside at the trial because the defendant regularly practiced before him and because the judge had personal knowledge of the defendant's mental state on the day of the offense, to which he made reference at the time of sentencing.

A trial judge must exercise reasonable discretion to determine whether he possesses such bias or prejudice as would deny a party a fair trial, but no issue of bias is raised merely by the judge's familiarity with a party through prior judicial proceedings. Deahl v. Winchester Dept. Soc. Serv., 224 Va. 664, 672-73, 299 S.E.2d 863, 867 (1983). The Canons of Judicial Conduct provide that the judge should disqualify himself if "his impartiality might reasonably be questioned." Rules of Court, Part Six, Section III, Canon 3C(a). In exercising his discretion in this regard, the judge must be guided not only by the true state of his impartiality, but also by the public perception of his fairness, in order that public confidence in the integrity of the judiciary may be maintained. There is no indication in the record that the trial judge abused his discretion in this regard. The...