Wilson v. Com.

• Decision Date: 23 August 2005
• Docket Number: Record No. 1229-03-1.
• Court: Virginia Supreme Court
• Parties: Tyrone Alphonso WILSON v. COMMONWEALTH of Virginia.

617 S.E.2d 431

46 Va. App. 408

Tyrone Alphonso WILSON v. COMMONWEALTH of Virginia.

Record No. 1229-03-1.

Court of Appeals of Virginia, Richmond.

August 23, 2005.

COPYRIGHT MATERIAL OMITTED

Allan D. Zaleski (Weisberg & Zaleski, P.C., on brief), Norfolk, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on briefs), for appellee.

Present: FITZPATRICK, C.J., and BENTON, ELDER, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY, McCLANAHAN and HALEY, JJ.

UPON REHEARING EN BANC

HUMPHREYS, Judge.

This matter comes before the Court on a rehearing en banc from a divided panel opinion issued January 18, 2005. Tyrone Alphonso Wilson ("Wilson") appeals his bench trial convictions for possession of cocaine with the intent to distribute, possession of marijuana with the intent to distribute, possession of a firearm while in possession of a controlled substance, and possession of a firearm by a convicted felon. Wilson raises three assignments of error, specifically: (1) the court improperly refused to consider an alleged "plea agreement," (2) the trial judge improperly refused to recuse himself, and (3) the evidence was insufficient to support his convictions. For the reasons that follow, we affirm his convictions.¹

I. BACKGROUND

In accord with settled principles of appellate review, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below. Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence in this case establishes the following.

At approximately 8:45 p.m. on December 5, 2001, several officers and investigators from the Norfolk City Police Department executed a search warrant at an apartment leased to a "Deshawn Melton."² After breaking a side window as a diversionary tactic, the officers entered the residence through the front door. The officers proceeded through the living room of the apartment into the kitchen, where they discovered six individuals, including Wilson. Officer Poch then "gave a command for everybody to lay on the floor," and, "[w]ithin a matter of seconds of each other everybody went to the floor." Wilson "lay [] flat on the kitchen floor to the right of the refrigerator."

Officer Gardner then "commanded [Wilson] to show [] his hands." Wilson "put them straight out in front of him outstretched," and, after Officer Gardner "told [Wilson] not to move," Wilson said, "I have a gun." When asked where the gun was located, Wilson said it was "underneath" him. Officer Barber then recovered a fully-loaded "Ruger auto pistol" from Wilson's "left hip, upper thigh area."

Officer Payne handcuffed Wilson and escorted him outside. Officer Payne then asked Wilson "if he had any weapons or narcotics on him." Wilson responded, "No." Officer Paine asked for consent to search his person, and Wilson agreed. Officer Paine found a holster in Wilson's waistband and a "large sum of money," totaling $1,755, in his pocket. The officers also found a set of keys in Wilson's pocket.

Officer Edwards conducted surveillance on the apartment for one hour and twenty-five minutes before the warrant was executed. Between 7:20 p.m. and 8:10 p.m., Officer Edwards saw multiple individuals approach the apartment and gain entry. Although a few of the individuals left the apartment during that time frame, Officer Edwards saw four individuals "going into the apartment who did not come out." He did not see anyone enter or leave the apartment between 8:10 p.m. and 8:45 p.m., when the warrant was executed.

Also, before the officers entered the apartment, Officer Decker approached a window that he had been "assigned to break out" as a diversionary tactic. While looking through the window, Officer Decker saw three people sitting on a couch in the living room. On the floor to the right of the couch, Officer Decker observed "a baggie with a white substance probably about the size of maybe a hard ball." About three to three and a half feet away, Officer Decker also saw "the handle of a gun" protruding from underneath the sofa.

After the suspects had been removed from the apartment, Officer Barber, the lead investigator, began searching the interior of the residence. Officer Barber found "a bag of what [he] suspected to be cocaine" on the floor of the living room. Laboratory testing confirmed that the bag contained 47.86 grams of cocaine. About "three or four feet" away from the bag, he found "a nine-millimeter pistol fully loaded, locked and loaded with ammunition." No fingerprints were recovered from the weapon. Officer Barber also found "a wallet, a set of keys, a small amount of marijuana, [a] cell phone, and a pager" on one of the sofas in the room.

After searching the living room, Officer Barber moved into the kitchen. In a cabinet over the stove, Officer Barber discovered "six baggies, clear cellophane baggies with smaller baggies of marijuana in each baggie with cash, U.S. currency in each bag." The other kitchen cabinets contained "small, very small, very tiny packages, different color baggies, some green baggies, some clear baggies[,] . . . [and] sandwich baggies with the corners cut off." Officer Barber found a loaded revolver in one of the kitchen drawers. No fingerprints were recovered from the weapon. Officer Barber also discovered "scales with what appeared to be cocaine residue on the scales[,] . . . a pager, . . . and several cell phone plastic holders." Additionally, on a shelf above the refrigerator, Officer Barber found a television monitor and video camera that he believed were used to conduct surveillance on the property.

Officer Barber then searched the front bedroom. Inside the bedroom closet, Officer Barber found "a large green-type trash bag" containing seven bales of "green material." Although the "green material" was not marijuana, Officer Barber testified that the material "appeared" to be "fake counterfeit," reasoning that "[t]his material was packaged up exactly like [he] had seen packaged marijuana before in brick-like bags," concluding that "it appears they were going to try to sell it as rip-off." Inside the other bedroom, Officer Barber also found a "SS magazine with four rounds in it."

Overall, the apartment was sparsely furnished, there were no clothes in either bedroom, no personal effects in the bathroom, and no food or cooking implements in the kitchen. Although Officer Barber found a cast iron skillet in the kitchen, he explained that one of the ways to convert powdered cocaine into crack cocaine "is to actually cook the cocaine up with a cursor" inside a cast iron skillet, "[l]et it cool[,] . . . chip it off, [and] then bag it."

While the other officers were searching the interior of the apartment, Officer Joseph, a dog handler in the narcotics division, screened the vehicles outside of the apartment complex. Officer Joseph's dog alerted on a "late model silver Cadillac," which was found to have narcotics in the center console. The dog then alerted on a "2000 GMC Denali." A search of that vehicle yielded "a quantity of United States currency in the black jacket that was in the rear of the SUV," as well as a "quantity of marijuana [that] was also in the rear passenger seat." The dog next alerted on a "burgundy van," after running to the van "without any direction" from Officer Joseph. The officer placed the dog inside of the van, and, "[o]nce inside the vehicle," the dog "went to the side panel door on the passenger side and began scratching frantically." Officer Joseph then "took a crow bar and pried [the panel] open." Officer Joseph found a "package of white powder" inside the panel. The officers then decided that "a more detailed examination" of the van was needed.

After moving the van to the police operations center and "taking it apart," Officer Barber found additional cocaine packages in one of the "traps" that had been installed in the doors. The officers discovered that, to operate the trap doors, if "[y]ou take the plastic off of the door handle and put the positive and negative [poles from a battery] to those door handle[s]," the electric current "would open the trap up." To close the trap door, "[y]ou reverse the polarity." The officers found the battery used to open the trap doors "in the rear of the van." The packages of cocaine found inside the van, which had different but relatively high levels of purity, totaled approximately 2.8 kilograms and had a street value of approximately $350,000.

Although the van was not titled in Wilson's name, one of the keys recovered from Wilson's pocket "belonged to the van." On the evening in question, none of the other five individuals discovered inside the apartment possessed a key to the van. Inside the van, Officer Barber also found a "gun magazine" for a "Ruger .45 caliber" pistol—the same type of pistol that was found on Wilson's person. The Ruger .45 caliber pistol found on Wilson's person was the only gun of that type discovered in the apartment.

Wilson was arrested and charged with two counts of possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4, possession of cocaine with intent to distribute, in violation of Code § 18.2-248, possession of marijuana with intent to distribute, in violation of Code § 18.2-248.1, and possession of a weapon by a convicted felon, in violation of Code § 18.2-308.2.

II. PROCEDURAL HISTORY

Wilson's case was initially set for trial on July 16, 2002. Although the case was originally scheduled to be heard by Judge Charles E. Poston, Judge Poston was unable to hear the case on the scheduled date due to a medical appointment. Accordingly, Wilson's case was transferred to the hearing docket of Judge Charles D. Griffith, Jr. Although Wilson had previously and repeatedly told the Commonwealth that he wanted a bench trial, Wilson pled not guilty and requested a jury trial. When questioned by Judge Griffith about the...