Swinson v. Commonwealth
| Decision Date | 31 January 2023 |
| Docket Number | 0351-22-3 |
| Parties | RAYMOND TRAVIS SWINSON, SR. v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
UNPUBLISHED
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Paul A. Dryer, Judge
Jennifer T. Stanton, Senior Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant.
Craig W. Stallard, Senior Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Huff, Athey and White Judges Argued at Salem Virginia
Raymond T. Swinson, Sr., ("Swinson") appeals his conviction, following a jury trial, for possession with the intent to distribute methamphetamine, in violation of Code § 18.2-248(C), for which he was sentenced to ten years with seven suspended, and two years of supervised probation. Swinson argues the trial court erred in denying his motion in limine to exclude the evidence because the police obtained it in violation of Code § 46.2-1003(C). He contends that subsection (C) of Code § 46.2-1003, which took effect March 1, 2021, applied retroactively, and rendered inadmissible the evidence the police seized in 2019. He also contends that the court erred in refusing his model jury instruction. Finally, he argues that the evidence was insufficient to support his conviction.
Sufficiently similar statutes to Code § 46.2-1003 recently have been considered and decided regarding whether they apply retroactively. Accordingly, we conclude that the trial court did not err in denying the motion in limine. We assume without deciding that the trial court erred in refusing Swinson's jury instruction. However, applying the standard of review for non-constitutional error, we find such error harmless. In addition, we find the evidence sufficient to sustain Swinson's conviction. The judgment of the trial court is affirmed.
On the evening of July 23, 2019, Deputy Smith of the Augusta County Sheriff's Department initiated a traffic stop for a car displaying what he believed to be a defective front bumper. Before the deputy could activate his lights or siren, the driver of the car stopped the car along the side of the road. Deputy Smith activated his lights and proceeded with the traffic stop. Swinson, who was the driver of the car "jumped out and was on the cell phone." He moved back towards the trunk of the car and was "[v]ery amped up, fidgety, nervous, moving a lot." Deputy Smith told Swinson twice that he needed to get back in his car. Deputy Smith called for a canine backup and then proceeded with the traffic stop. Swinson's son, Raymond Swinson, Jr., was a passenger in the car.
Once the canine unit arrived, Swinson and his son were taken out of the car and the dog performed an "open air" search. The dog alerted to the possible presence of drugs in the car. Deputy Smith confronted Swinson and asked if he "had anything on him." In response, Swinson removed a cigarette pack from his shirt pocket which contained "two small bags with a crystal-like substance in each." A later analysis of the bags determined that the contents contained 4.35 grams of methamphetamine. A search of the car produced a pipe on the floorboard of the passenger side of the car. No baggies, cash, or scales were found in the car during the search. Swinson did not have any excessive amounts of cash on his person.
After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Swinson told the deputy that he found the drugs and then later told them "that he had it sold already and was on the way to deliver it for $50."
In a pre-trial hearing on the motion in limine, Swinson moved the court to exclude evidence obtained from the encounter arguing that the stop of the car was in violation of Code § 46.2-1003(C).
The General Assembly added subsection (C) to Code § 46.2-1003 in November 2020, effective March 1, 2021. See 2020 Va. Acts Spec. Sess. I chs. 45, 51; see also Va. Const. art. IV, § 13 (); Code § 1-214(B) (same). The subsection provides that "[n]o law-enforcement officer shall stop a motor vehicle" for illegal use of defective or unsafe equipment. Code § 46.2-1003(C). Moreover, "[n]o evidence discovered or obtained as the result of" such a stop, "including evidence discovered or obtained with the operator's consent, shall be admissible in any trial, hearing, or other proceeding." Id.
The trial court ruled that Code § 46.2-1003(C) created both "a substantive right" and "a procedural right." The court found that, substantively, motorists could not be stopped "for the sole reason of . . . defective equipment." Procedurally, "evidence obtained in violation" of that rule was "not admissible." The trial court also ruled that under Code § 1-239, it was not "practicable" to implement the "procedural change" to exclude evidence obtained during a stop "nearly two years before the effective date" of the statute. The trial court denied the motion in limine.
B. Witness Testimony
Investigator Hilliard, qualified as an expert, testified that the quantity of drugs found would be sufficient for 40 hits and have a street value of over $400. Hilliard also testified that an average user would consume between one-tenth of a gram and one gram per day. Hilliard said that users typically store their drugs in a single bag, as opposed to multiple bags. According to Hilliard, users will often purchase an "eight ball," or 3.5 grams, for personal use. Hilliard described other indicia of intent to distribute would be the existence of "O sheets," or a list of what each individual owes for the drugs they buy. He testified that in the past there would be an actual written list on paper but now the list is often in the distributor's cell phone. As the police never confiscated Swinson's cell phone, there was no evidence recovered of a digital list nor of a paper list.
Elizabeth Wade, Swinson's daughter, testified that in July 2019, her father and brother, Ray, Jr., would often visit her and her three children. They did so on July 23. Previously, Wade had observed Ray, Jr. with drugs, describing him as a "junkie," saying "he would do anything he could get his hands on [drugs]." Wade observed Ray, Jr. smoking meth the day before Swinson was arrested. She had not seen her father use drugs before.
Swinson, a 53-year-old father of five with a seventh-grade education, testified on his own behalf. He testified that he was on disability due to seizures he has suffered from since the age of 17. Swinson testified that he walked "funny" because he had been kicked in the back "25 to 37 times" and had three chips in his back. He also testified that the seizure disorder affects him in such a way that it makes him appear fidgety and extremely nervous. Swinson confirmed that he and his son were driving from Harrisonburg to Chatham when they stopped at the Verona exit to use the bathroom. When he got back in the car, Swinson noticed his son had a baggie in his hand and he took it from him, saying "What are you doing with that, boy?" Swinson testified that he was "freaking bad" and was wondering where his son got the stuff. Swinson testified that he thought the baggies contained Epsom salt or "salt rock." Swinson told the jury that Ray, Jr. had been known to sell fake drugs to people.
Swinson asserted that as soon as he saw a police cruiser following him, he pulled over to turn the baggie over to them. Swinson testified that prior to the field test, he did know that the baggie he retrieved from his son contained meth. Swinson also testified that when he was asked by the officer what he intended to do with the drugs, he was joking when he said that he was going to sell the drugs for $50. He also said that he told the officers that he found the drugs on the ground at the motel to protect his son from any lability.
C. Jury Instructions
Additionally, Swinson proffered Virginia Criminal Model Jury Instruction 22.350, which read in its entirety:
To possess with intent to distribute requires that the defendant have intent to distribute at the time of possession. In determining whether there is possession with intent to distribute, you may consider all facts and circumstances, including but not limited to: the quantity possessed; the manner of packaging; the presence of an unusual amount of cash; the denomination of the cash possessed; the presence of equipment related to drug distribution; the presence or absence of drug paraphernalia suggestive of personal use; the presence of a firearm; the presence of a pager or electronic communications device; the conduct and statements of the defendant; the location at which the drugs were possessed; use of the drug by persons other than the defendant at the time it was seized; and the possession of more than one type of drug. Where the defendant possesses a small quantity of drugs you may infer that the defendant intends to possess the drugs for personal use. However, possession of a small quantity of drugs, combined with other facts and circumstances, may be sufficient to establish intent to distribute.
The trial court gave the instruction but took out some of the factors enumerated. The court excluded: (1) the presence of an unusual amount of cash, (2) the denomination of the cash possessed, (3) the presence of equipment related to drug distribution, (4) the presence of a firearm, (5) the presence of a pager or electronic communications device, and (6) the possession of more than one type of drug.
Finding that the removed items would have been confusing for the jury, the trial court stated:
The Court's view on it is - - and I get it's an extensive list but it...
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