Williams v. Com.

• Decision Date: 04 June 2009
• Docket Number: Record No. 081577.
• Citation: 677 S.E.2d 280,278 Va. 190
• Parties: Ricky C. WILLIAMS v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

677 S.E.2d 280

278 Va. 190

Ricky C. WILLIAMS v.COMMONWEALTH of Virginia.

Record No. 081577.

Supreme Court of Virginia.

June 4, 2009.

Anthony J. Nicolo(Ferrell, Sayer & Nicolo, on brief), Portsmouth, for appellant.

Josephine F. Whalen, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and GOODWYN, JJ., and RUSSELL, S.J.

OPINION BY Senior Justice CHARLES S. RUSSELL.

This appeal questions the sufficiency of the evidence to support a conviction of possession of methadone with intent to distribute.

Facts and Proceedings

Applying familiar principles of appellate review, we will state the facts in the light most favorable to the Commonwealth, the prevailing party at trial.On August 17, 2005, Detectives McAndrew and Johnakin, of the Portsmouth Police Department, initiated a traffic stop of a station wagon because one of its brake lights was inoperative.The driver was a man named Clark.Seated beside him in the passenger seat was Ricky C. Williams.The detectives left their unmarked cruiser and approached the station wagon, McAndrew to the driver's side and Johnakin to the passenger side.Detective Johnakin saw Williams look over his shoulder at the approaching Detective McAndrew and throw three plastic bags over his left shoulder with his right hand.They landed in the middle of the back seat.Detective Johnakin looked through the rear window and saw the plastic bags, one of which appeared to him to contain heroin capsules.Detective Johnakin opened the passenger door and placed Williams under arrest.When asked where he worked, Williams stated that he was unemployed.Detective McAndrew removed the three plastic bags from the back seat and identified their contents as what appeared to be heroin, cocaine and methadone, respectively.

Williams was indicted for several drug-related offenses and was convicted at a bench trial of (1) possession of heroin with intent to distribute (third offense), (2) possession of cocaine with intent to distribute (third offense), and (3) possession of methadone with intent to distribute (third offense).At trial, the three plastic bags recovered from the back seat of the station wagon were identified as one plastic bag corner containing 38 capsules of heroin, one plastic bag corner containing 1.24 grams of powder cocaine, and one plastic bag corner containing ten white marked tablets.One of the white tablets was tested and found to contain methadone.

Detective R.M. Holley of the Portsmouth Police Department qualified, by stipulation, as an expert witness in the packaging, sale, use and distribution of narcotics in the City of Portsmouth.He testified that a "heavy user" of heroin would use five to seven capsules per day, that 38 capsules represented a five to seven-day supply for a heavy user, and that it was "very, very rare" that such a user would carry a quantity of capsules amounting to a five to seven-day supply of the drug on his person.

The "street price" of the capsules was $10 each, in Detective Holley's opinion, so the heroin represented a value of $380 to a user.The "street value" of the cocaine was approximately $100 per gram, he testified, so the cocaine powder was worth about $120, while the methadone tablets sold for five to ten dollars each, adding $50 to $100 to the total value of the items seized in the station wagon.Detective Holley testified that in his experience, no user had ever been found in possession of all three of these drugs at any one time, and that the evidence was inconsistent with personal use.

On cross-examination, Detective Holley testified that the quantity of cocaine seized, taken alone, would be "borderline close" to being consistent with personal use, but in combination with the other drugs it was not.He said, "I don't ever remember seeing three different drugs [carried] by a user together."He added, without objection, that it was doubtful that a drug user who was unemployed would be carrying drugs of so much monetary value with him.

Detective Holley also was of the opinion that the mere combination of heroin and methadone was unlikely for a user, because both have the same effect, although the effect of methadone lasts for a shorter time.Methadone, he said, is available by prescription, but in that case, the law requires that it be kept in a prescription bottle; methadone is also dispensed by drug treatment programs in Portsmouth, but is only dispensed one tablet at a time.Detective Holley also thought the packaging of the methadone was inconsistent with personal use, stating "[t]o put them in a plastic bag corner is very unusual for a user of methadone."

At the conclusion of the trial, Williams made no argument concerning the heroin charge and argued only the failure of the Commonwealth to prove intent to distribute cocaine and methadone, asking the court to find him guilty only of simple possession of those two substances.

Williams appealed his convictions to the Court of Appeals.That court denied his petition as to the heroin conviction but granted his petition as to possession of cocaine with intent to distribute and possession of methadone with intent to distribute.A panel of the Court of Appeals heard those cases and, by opinion and order entered June 24, 2008, affirmed the judgment of the trial court.We awarded Williams...