Wilson v. Commonwealth

• Decision Date: 08 June 2006
• Docket Number: Record No. 051968.
• Citation: 630 S.E.2d 326
• Parties: Tyrone Alphonso WILSON v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

630 S.E.2d 326

Tyrone Alphonso WILSON v. COMMONWEALTH of Virginia.

Record No. 051968.

Supreme Court of Virginia.

June 8, 2006.

Murray J. Janus (Taylor B. Stone; Bremner, Janus, Cook & Marcus, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice ELIZABETH B. LACY.

In this appeal, Tyrone Alphonso Wilson challenges the sufficiency of the evidence to establish possession with intent to distribute cocaine, a violation of Code § 18.2-248, and possession with intent to distribute more than one-half ounce but less than five pounds of marijuana, a violation of Code § 18.2-248.1. He also challenges the trial judge's actions in refusing to consider a plea agreement and to recuse himself from Wilson's case. Although we find no merit in Wilson's challenge to the sufficiency of the evidence, we conclude that the judgments of conviction must be vacated and the case remanded because the trial judge's actions demonstrated an appearance of partiality and, therefore, the trial judge abused his discretion in refusing Wilson's recusal motion.

Facts and Proceedings

Several officers and investigators from the Norfolk City Police Department executed a search warrant on an apartment after conducting surveillance of the apartment for over an hour. Inside the apartment, the officers found six men, including Wilson. The police recovered from cabinets in the kitchen six bags holding smaller bags of marijuana, a number of "baggies," cash, and a scale covered with what appeared to be cocaine residue. A bag containing cocaine, a nine-millimeter pistol, marijuana, a cell phone, and a pager device in plain view in the living room were also recovered by the police.

Officers found Wilson in the kitchen of the apartment. While lying on the floor at the direction of the officers, Wilson told the officers he had a .45 caliber pistol, which the officers retrieved.

No drugs were found on Wilson's body, but he did have $1,755 cash and keys to a van which was parked outside the apartment. The police officers found amounts of cocaine worth $350,000 hidden in the "traps" in the door panels of the van. The officers also recovered from the van a magazine of bullets for a .45 caliber gun. The only .45 caliber gun recovered was the one found on Wilson.

Wilson was indicted for two counts of possession of a firearm while in possession of cocaine, Code § 18.2-308.4, possession of cocaine with intent to distribute, Code § 18.2-248, possession of more than one-half ounce but less than five pounds of marijuana with intent to distribute, Code § 18.2-248.1, and possession of a weapon by a convicted felon, Code § 18.2-308.2.

On July 16, 2002, Wilson and his attorney, Allen D. Zaleski, appeared in the Circuit Court of the City of Norfolk before Judge Charles E. Poston briefly before being transferred to Judge Charles D. Griffith, Jr.'s courtroom. The case was set for a bench trial, but when the case was transferred to Judge Griffith, Wilson requested a trial by jury. In response to Judge Griffith's questions, Zaleski admitted that he counseled Wilson to ask for a jury trial specifically because the case was transferred to Judge Griffith. Judge Griffith then attempted to relieve Zaleski from representing Wilson in the case. When Judge Griffith learned that he could not remove Zaleski because Wilson had retained Zaleski to represent him, Judge Griffith ordered that Zaleski be removed from the circuit court's list of court-appointed attorneys "effective immediately." Judge Griffith declared he was "not going to have a court-appointed lawyer who practices that way in this court building," and referred to Zaleski's actions as "shenanigans." During this proceeding, Judge Griffith also ruled that by waiting to request a jury trial until the case was transferred, Wilson waived the 14-day notice period required for admission of juvenile records under Code § 19.2-295.1 and that Wilson could not later waive his right to a jury trial.

On September 6, Wilson appeared before Judge Everett A. Martin, changed his request back to a bench trial, and was arraigned on all the charges. Judge Martin set the case for a bench trial for the following week. Upon learning that Wilson's case was again set for a bench trial, Judge Griffith approached the chief judge of the circuit court and suggested that a defendant should not be allowed "to avoid a particular courtroom" by seeking a jury trial. Following this exchange, the chief judge removed the case from the "open docket," that is, assignment of the trial judge on the day of trial, and assigned the case to Judge Griffith.

On September 10, 2002, when Wilson appeared before Judge Griffith for the trial, the following exchange took place:

MR. ZALESKI: Your Honor, we're very close to a plea agreement in this case.

THE COURT: We're ready to start the trial.

MR. ZALESKI: If we present a plea agreement —

THE COURT: The trial is getting ready to begin, Mr. Zaleski.

MR. ZALESKI: Yes, Your Honor. Can I have just two minutes to talk to my client?

THE COURT: I have asked them to bring him out so we can start the trial. This case has been on the docket plenty of times. It's time to go.

. . . .

[The Clerk calls the case and some of the witnesses are sworn.]

. . . .

MRS. BRYANT:¹ Before the Court proceeds in this case further, it's my understanding that Mr. Wilson would like to enter a plea of guilty. We don't have a plea agreement written out. We would ask the Court to accept the plea. It calls for a total sentence of 20 years with four to serve.

THE COURT: I'm sorry, but we're getting ready to start a trial. You-all have had plenty of time to negotiate. We're not doing any negotiations right now. We're starting a trial.

MR. ZALESKI: You're rejecting the agreement? I would move —

THE COURT: There is no agreement. This case is beginning trial. You are beyond your time to negotiate a plea agreement. We're starting a trial today.

Counsel for the Commonwealth then requested a conference in chambers during which she explained to Judge Griffith that on the eve of trial the Commonwealth learned of certain exculpatory evidence connected with a Commonwealth's witness. Based on this development, the Commonwealth offered Wilson a plea agreement. After this explanation, the following exchange took place.

THE COURT: All right. Let's go. You seem to think that once this trial begins, which has begun ... that somehow or another you have a right to stop everything and present a plea agreement and force me to consider a plea agreement. This trial is ready to begin. Your time for negotiating is over. It's time to start the trial.

MRS. BRYANT: I was actually —

MR. ZALESKI: Is the Court saying you will not consider any plea agreement at this time?

THE COURT: You have no plea agreement.

MR. ZALESKI: That is the Court's position?

THE COURT: We have started a trial. It's too late to negotiate.

MR. ZALESKI: You are stating you will not consider any plea agreement at all?

THE COURT: I'm not going to interrupt this trial and submit a plea agreement. That's correct. We are ready to start the trial.

At the conclusion of the evidence and the arguments, Judge Griffith found the defendant guilty of all charges.² On April 25, 2003, Judge Griffith sentenced Wilson to a total of 60 years imprisonment, with 30 years suspended.

Wilson appealed to the Court of Appeals of Virginia. A three-judge panel of the Court of Appeals reversed the trial court's judgment and remanded the case. Wilson v. Commonwealth, Record No. 1229-03-1, 2005 WL 86467 (January 18, 2005). In a rehearing en banc, the judgment of the trial court was affirmed by a divided vote. Wilson v. Commonwealth, 46 Va.App. 408, 617 S.E.2d 431 (2005) (en banc). Wilson appealed to this Court.

I. Sufficiency of the Evidence

Wilson claims that the evidence at trial was insufficient to support his convictions of possession with intent to distribute more than one-half ounce but less than five pounds of marijuana and possession with intent to distribute cocaine. Wilson's arguments are directed entirely to the sufficiency of the evidence as it relates to actual or constructive possession of cocaine and marijuana; evidence of the intent to distribute or the amount of the drugs is not at issue. Because he did not assign error to the sufficiency of evidence to support his conviction for possession of cocaine while possessing a firearm, he has therefore conceded the factual finding that he was in actual or constructive possession of cocaine. Accordingly, Wilson has waived, and we will not address, the sufficiency of the evidence of possession of cocaine in regard to the intent to distribute charge. Our consideration of this assignment of error is limited to the sufficiency of the evidence as it relates to Wilson's possession of marijuana. Wilson argues that the Commonwealth failed to prove he exercised dominion and control over the marijuana or was aware of its presence in the apartment.

The law on possession of illicit drugs in this Commonwealth is well established. In Walton v. Commonwealth, 255 Va. 422, 497 S.E.2d 869 (1998), we stated:

In order to convict a person of illegal possession of an illicit drug, the Commonwealth must prove beyond a reasonable doubt that the accused was aware of the presence and character of the drug and that the accused consciously possessed it. Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). An accused's mere proximity to an illicit drug, however, is not sufficient to prove possession. Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986). In addition, ownership or occupancy of the premises where the drug is found does not create a presumption of possession. Code § 18.2-250.1(A); Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983). Nonetheless, these factors may be considered...