Thomas v. Com.

• Decision Date: 25 January 2005
• Docket Number: Record No. 2889-03-4.
• Citation: 607 S.E.2d 738,44 Va. App. 741
• Parties: Raymond Brian THOMAS, Sr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

607 S.E.2d 738

44 Va. App. 741

Raymond Brian THOMAS, Sr. v.COMMONWEALTH of Virginia.

Record No. 2889-03-4.

Court of Appeals of Virginia.

January 25, 2005.

Steven A. Merril(Laura P. Leibowitz; Whitestone, Brent, Young & Merril, P.C., on brief), Fairfax, for appellant.

Steven A. Witmer, Assistant Attorney General(Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON, BUMGARDNER and KELSEY, JJ.

KELSEY, Judge.

Raymond Thomas challenges his jury conviction for possession of a firearm by a felon in violation of Code§ 18.2-308.2.We find that Thomas waived all but one of his arguments by not properly raising them at trial.On the one question preserved for appellate review — whether the court erred in admitting into evidence 46 plastic baggies described by an expert narcotics officer as indicative of drug distribution — we hold the court did not abuse its discretion in admitting this evidence.We thus affirm Thomas's conviction.

I.

We review the evidence in the "light most favorable" to the Commonwealth, the prevailing party in the trial court.Commonwealth v. Hudson,265 Va. 505, 514, 578 S.E.2d 781, 786(2003)."On appeal this court must `discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'"Parks v. Commonwealth,221 Va. 492, 498, 270 S.E.2d 755, 759(1980)(citation omitted and emphasis in original).

Officers Darren DeCoster and Sean Bauer stopped Thomas's vehicle on a suspected traffic violation.During the stop, DeCoster asked for and received consent to search the vehicle."Immediately upon entering the vehicle," the officer testified, he smelled the "odor of marijuana coming from the vehicle" and found "residue of marijuana throughout the entire vehicle, in the seats, on the floorboard, in the center console, and eventually found some in the trunk."

DeCoster also noticed that a rear seat cushion was "a little bit ajar."He looked under the cushion and found a fully loaded, semi-automatic handgun."At that point,"he testified, "for officer safety purposes, I had some non-verbal communication that I use with my partner."DeCoster then drew his weapon and placed Thomas, who was standing outside the vehicle, under arrest."At that point in time," Thomas later admitted, "he knew they had found the gun."

When questioned about the firearm, Thomas said he had been "shooting with a friend."His fingerprints might be on the gun, Thomas stated, because he had "shot the gun in the past."Thomas then said he had visited shooting ranges that turned him away "because he was a convicted felon."He and his friend, however, found a range where "the person didn't do their [sic] job, hence not checking him to see if he was a convicted felon."

Officer Bauer transported Thomas's car to the police station.As he was exiting the vehicle, Bauer "grabbed the driver's side door handle to close the vehicle" and "the door handle portion came off" in his hand.Bauer then saw a hidden compartment in the "door frame or door well" ordinarily covered up by a piece of the door secured to the frame.In that compartment, he found a medium-sized zip-lock bag containing 46 smaller zip-lock plastic baggies.

At trial, the Commonwealth introduced into evidence Thomas's prior convictions for burglary and possession of marijuana with intent to distribute.Officer DeCoster testified, without objection, that during his search of the vehicle, he"found the residue of marijuana throughout the entire vehicle, in the seats, on the floorboard, in the center console and eventually found some in the trunk."When the Commonwealth asked DeCoster about the 46 plastic baggies, however, Thomas objected."It's drug contraband,"the prosecutor replied.It explained why Thomas, an alleged drug dealer, might simultaneously possess a firearm.

After pointing out that Thomas "did not object to the testimony about marijuana residue," the trial judge overruled his objection to the baggies."It clearly has the potential to prejudice your client," the judge stated to Thomas's counsel, "but I'm not prepared to say it's not relevant."The evidence appeared to be "drug dealing paraphernalia," the judge reasoned, that Thomas allegedly possessed "at the same time" as the firearm.

The trial judge offered a cautionary instruction to Thomas making clear that he was "not charged with any offense relating to drug dealing in this case," and thus, this evidence should be considered only for purposes of deciding the firearm charge."I can give it to the jury now or I can give it to the jury later," the judge said.Thomas's counsel asked that no such instruction be given until the end of trial when it could be included with the "rest of the instructions."

When asked about the relevance of the 46 plastic baggies, Officer DeCoster testified as a drug interdiction expert that the baggies were "indicative of illegal narcotics distribution, packaging."In the drug trade, he explained, "[d]epending on what the drug was, it would be measured or weighed and put inside the small, zip lock baggie to more easily distribute it."The Commonwealth offered a photograph of the baggies as Exhibit 1 and the actual baggies as Exhibit 2.Thomas renewed his objection each time, and the trial court overruled it.

Thomas took the stand in his own defense.Thomas admitted that, in the past, he"distributed" marijuana and had been convicted of possession of marijuana with intent to distribute.With respect to the 46 plastic baggies, Thomas claimed his "mom uses them to put jewelry in."Beyond that, Thomas said, he did not know of any other use for the baggies, nor did he know how they ended up in a hidden compartment of the driver's side door of his car.

At the end of the trial, the trial judge asked Thomas's counsel about the cautionary instruction previously offered."I decided I don't think we need a cautionary instruction,"counsel replied, "I think it might do more harm than good."The trial court gave the final instructions to the jury omitting, as requested, any cautionary instruction concerning the evidence of the 46 plastic baggies or Officer DeCoster's testimony about them.The jury convicted Thomas of possession of a firearm by a convicted felon in violation of Code§ 18.2-308.2.

II.

On appeal, Thomas challenges his conviction on four grounds.First, he contends that the trial court erred by "admitting evidence of marijuana seeds and zip lock bags."Second, he contends the court erred by failing to sua sponte intervene to cut off the prosecutor's argument seeking to connect the drug-related evidence to the firearm.Third, Thomas asserts the court erred by "permitting the jury" to rely upon the drug-related evidence in support of the firearm charge.Thomas's final contention asserts the court erred by not giving a cautionary instruction.

A.WAIVER OF ALL BUT ONE ISSUE ON APPEAL

As a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to preserve the issue on appeal.Not just any objection will do.It must be both specific and timely — so that the trial judge would know the particular point being made in time to do something about it.See, e.g., Riner v. Commonwealth,268 Va. 296, 325, 601 S.E.2d 555, 571(2004)(holding that appellant waived challenge to double-tier hearsay by failing to specifically object to trial court's incomplete ruling as to only one of the two tiers).¹

In this case, Rule 5A:18 bars all but one of Thomas's contentions on appeal.His first argument — that the trial court erroneously admitted evidence of marijuana seeds and 46 plastic baggies — must be severed, as Thomas objected to the introduction of the baggies, but not to the seeds.The objection also did not address the testimony about the marijuana residue "throughout the entire vehicle" or the odor of marijuana permeating the vehicle.

Thomas likewise failed to object to the prosecutor's closing argument asserting a logical link between the firearm in Thomas's vehicle and the various indicia of drug distribution associated both with Thomas and his vehicle (i.e., Thomas's admission of having "distributed" drugs in the past; his prior possession-with-intent-to-distribute marijuana conviction; the marijuana odor coming from his vehicle; the presence of marijuana residue throughout the entire vehicle; and the 46 baggies hidden in a secret door compartment).²Finally, by refusing the trial court's offer of a cautionary instruction and by not proposing one of his own, Thomas waived any claim of error associated with that issue.SeeLewis v. Commonwealth,43 Va.App. 126, 130 n. 1, 596 S.E.2d 542, 544 n. 1(2004)("Appellant may have been entitled to a cautionary instruction.However, we do not address this aspect of the question presented because appellant never requested a cautionary instruction at trial.").

Rule 5A:18 is not absolute, however.If the ends of justice warrant an exception to the general rule, we may set it aside.We do so, however, only in "extraordinary situations" where the defendant can prove a substantial miscarriage of justice.Bazemore v. Commonwealth,42 Va.App. 203, 218-19, 590 S.E.2d 602, 609-10(2004)(en banc)(citations omitted)."The record `must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.'"Copeland v. Commonwealth,42 Va.App. 424, 442, 592 S.E.2d 391, 399(2004)(citations omitted);see alsoMichaels v. Commonwealth,32 Va.App. 601, 608, 529 S.E.2d 822, 826(2000)(observing that defendant must show "she was convicted for conduct that was not a criminal offense" or "an element of the offense did not occur").

Thomas argues that the ends-of-justice exception applies to his assertion on appeal that the trial court erred by not giving a cautionary instruction.On that issue, we discern no...