Williams v. Com.

• Decision Date: 17 March 1987
• Docket Number: No. 0032-85,0032-85
• Citation: 4 Va.App. 53,354 S.E.2d 79
• Court: Virginia Court of Appeals
• Parties: Robert W. WILLIAMS v. COMMONWEALTH of Virginia. Record

Page 79

354 S.E.2d 79

4 Va.App. 53

Robert W. WILLIAMS v. COMMONWEALTH of Virginia.

Record No. 0032-85.

Court of Appeals of Virginia.

March 17, 1987.

Kenneth W. Smith, Fairfax, for appellant.

Margaret Poles Spencer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and KEENAN, JJ.

KEENAN, Judge.

Robert W. Williams was convicted of possession of cocaine with intent to distribute. He was sentenced in accordance with the jury's verdict to seven years incarceration and a fine of $12,000. On appeal, Williams argues that he was illegally detained; that the search which produced the cocaine was illegal; that he was denied the right to speak with an attorney and compelled to make incriminating statements; that the court improperly admitted evidence of a taped conversation he engaged in with his cocaine supplier at the request of the police; that the Commonwealth failed to disclose a plea agreement with his codefendant, Steven Frazier; that the prosecutor improperly commented on his failure to testify; and that the Commonwealth failed to prove that he exercised dominion and control over the cocaine. We find no reversible error and affirm.

I. FACTS

This case presents many factual conflicts between Williams' testimony at the suppression hearing and the testimony of the police officers who were involved. We view the evidence in the light most favorable to the Commonwealth, as the prevailing party below, and grant to it all reasonable inferences fairly deducible therefrom. Crumble v. Commonwealth, 2 Va.App. 231, 233, 343 S.E.2d 359, 361 (1986).

On January 27, 1984, Detective Tamez of the Arlington County Police Department applied for a search warrant for 922 North Cleveland Street, Arlington. An affidavit filed by Tamez in support of the application stated that he had received information from two confidential sources that Williams and Frazier were distributing cocaine in Arlington. Tamez's affidavit related the following information from one source: "Williams was from South Carolina and would have cocaine sent through the mail to the Arlington area, transport it to an address at 922 North Cleveland Street and would eight [sic] it and cut it for sale. C/S [confidential source] stated that Williams drove a 1969 or 1970 Pontiac Firebird that was orange in color." The affidavit also related that a person in South Carolina named David Via was supplying Williams the cocaine.

Tamez further stated in his affidavit that Detective Cope of the Arlington County Narcotics Unit observed a 1968 orange Firebird with South Carolina tag # UFZ 286 parked in front of 922 North Cleveland Street and that a check with South Carolina authorities revealed that the car belonged to Williams. The affidavit also stated that according to South Carolina authorities, Williams had "an extensive drug related criminal history" and that he should not have been out of South Carolina due to the fact that he was on parole or probation for a 1980 drug conviction. Finally, the affidavit stated that, according to one confidential source, Williams was "interested in leaving the area," and that he was "currently at 922 North Cleveland Street ... in possession of approximately 30 grams of cocaine." The affidavit did not state how the confidential sources acquired their knowledge, nor did it state whether the sources had any personal knowledge of the information given.

A search warrant was issued at 12:15 p.m. The warrant authorized a search of "all the basement area of 922 Cleveland Street, Arlington, Virginia, which is known to be the residence of Steve Frazier." Before obtaining the warrant, Tamez assigned two other detectives (Robinson and Hackert) to conduct a surveillance of the house. Tamez told the others to notify him if Williams attempted to leave. As Tamez was enroute to the house with the search warrant, Robinson radioed to him that Williams had gotten into a car and driven away. Tamez instructed Robinson to stop Williams and, as it turned out, both police vehicles combined to pull Williams over approximately three to four blocks from the house. Tamez did not have an arrest warrant for Williams or a search warrant for his car. Further, he had not observed Williams breaking the law.

Upon making the stop, Tamez asked Williams to get out of his car. Detective Robinson patted him down for weapons. Robinson felt a bulge, reached into Williams' pocket and removed eleven one hundred dollar bills. Detectives Tamez and Cope indicated that money was included in the search warrant and instructed Robinson to turn it over to them.

Tamez informed Williams of the search warrant for the house and stated that he and the other officers were on their way there to search for cocaine. According to Tamez, Williams denied that there was any cocaine at the house. Tamez further testified that Williams volunteered to take the officers back to the house. Williams denied this at the suppression hearing. He stated that he "was told to get in their car and we were going back to 922 North Cleveland Street." Although Williams testified that the officers had their guns drawn, Tamez denied this. The prosecution does not dispute that Williams was not told that he was free to leave; however, he was not handcuffed and Tamez testified that Williams was not under arrest at this point. The court found that Williams had been detained but not arrested. No specific finding was made whether Williams voluntarily returned to the house.

After arriving back at the house, Williams led the police into the basement apartment of Steve Frazier. In order to reach the apartment, they had to go into the basement and down a short hallway. The officers found Frazier in the apartment. Frazier and Williams were instructed to sit on the bed while the search warrant was executed. Tamez located a "hotbox" underneath the sofa bed. He also found a set of scales, "a bottle of cut," a plastic bag and some other paraphernalia in the living room area of the apartment.

Detective Cope found a briefcase "in the closet space area of the basement." This closet, which was about ten feet away from the apartment door, was located in the hallway they had just walked through to reach the apartment. Tamez took the briefcase back into the apartment and asked Williams and Frazier whether it belonged to either one of them. When both denied ownership, Tamez broke open the briefcase with a knife. Inside, he found dilaudid, marijuana and cocaine. He also found Williams' resume.

Williams and Frazier were then placed under arrest, handcuffed and read their Miranda rights. Williams was taken to the police station where he was again advised of his rights. He also signed a form acknowledging that these rights had been read to him and that he understood them. Williams claimed at the suppression hearing that he requested an attorney but was instead offered an assistant commonwealth's attorney. Tamez, Robinson and Cope all testified that Williams understood his rights and never asked for his own attorney. According to the officers' testimony, Williams requested to see a commonwealth's attorney for the purpose of confirming that the police would comply with an agreement being offered. At the suppression hearing, Tamez described the agreement which was reached with Williams. He stated that "in return for Mr. Williams' cooperation on his supplier of cocaine to the Arlington area ... he would be charged with one count of possession with intent to distribute cocaine with no recommendation and would not be charged with the dilaudid or marijuana."

Pursuant to his agreement with the police, Williams contacted his supplier in North Carolina and ordered some cocaine. The conversation between Williams and his supplier was taped. Tamez testified at trial that prior to the conversation he gave Williams "a basic outline of what he needed to do in order to fulfill his side of the bargain, that was to get [the supplier] to admit that he was involved in this particular case and to make a delivery to Arlington, Virginia." At trial, the tape was played for the jury over Williams' objection that the conversation was irrelevant, prejudicial and inflammatory. The court ruled that the taped conversation was admissible since it showed Williams' knowledge and method of operation, thus tending to establish his intent to distribute.

In addition to the tape, the jury heard the testimony of Detectives Tamez, Robinson and Cope.

Tamez testified that after Williams was given his Miranda warnings, he admitted that he was receiving cocaine from a supplier named Ernest Pack in North Carolina. Williams further admitted to Tamez that he was selling the cocaine and sending the money to Pack through Western Union. In fact, Williams told Tamez that he was on his way to wire the money found in his possession to Pack at the time of his detention. Finally, Williams told Tamez that Frazier had nothing to do with this distribution scheme.

The jury also heard the testimony of Stephen Frazier. According to Frazier, Williams approached him in early January 1984 with an offer to join his drug dealing operation. Frazier and Williams had known each other since childhood and Williams was dating Frazier's sister at the time. Frazier testified that Williams had recently moved back to Virginia from South Carolina and was interested in using his contacts in the Carolinas to set up a drug dealing business in Arlington.

The proposed plan, according to Frazier, was for Williams to obtain the drugs from his Carolina contacts. Frazier would then be the local distributor. Frazier testified: "Bobby [Williams] knew how to handle the business ... Bobby would be the brains of the organization and I will be like an associate or an employee of this little group." Frazier stated that he rejected the idea; however, he continued to allow Williams to stay at the Cleveland Street house when he was in town.

On both direct and...