WILSON v. COMMONWEALTH, 1229-03-1, Unpublished (Va.App. 1-18-2005)

On February 1, 2005 came the appellee by the Attorney General of Virginia, and filed a petition praying that the Court set aside the judgment rendered herein on January 18, 2005, and grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on January 18, 2005 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve additional copies of the appendix previously filed in this case.

Benton, J., concurring, in part, and dissenting, in part.

I concur in the parts of the opinion styled PROCEDURAL HISTORY andANALYSIS (I). I agree that the trial judge erred by refusing to consider the proffered plea agreement and that, for this reason, Wilson's case ordinarily should be remanded under Rule 3A:8. I would also hold, however, that the trial judge should have granted Wilson's motion that the judge recuse himself from presiding over the trial. In addition, because I believe the evidence was insufficient to prove that Wilson constructively possessed the drugs seized, I would reverse the convictions and dismiss the indictments concerning the drugs.

On July 16, 2002, when this case was set for trial, the clerk called the case and asked Wilson whether he wanted a trial by jury or a bench trial. Wilson said he wanted a jury trial. The trial judge noted that a jury could not be secured that day, said he would arraign Wilson, and ruled the trial would begin the following day. As the clerk began the arraignment, the trial judge interrupted and said Wilson's attorney had "caused this problem." He then announced that he was "going to relieve [Wilson's attorney] . . . from [his] responsibilities in this case." When he learned that the attorney was not court appointed but retained, he ruled: "I am removing you from the court appointed list, effectively immediately. . . . I am not going to have a court-appointed lawyer who practices that way in this court building." He then continued the case noting that "the defendant's constitutional right to a jury trial overrides any shenanigans that the attorney may participate in." In denying Wilson's later motion that he recuse himself from the trial, the judge said that he did not "hold any ill will toward [Wilson's attorney]" and that he was "going to be fair."

"A judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Canon 3(C) of the Canons of Judicial Conduct. "The requirement of this Canon is clear; a judge must diligently avoid not only impropriety but a reasonable appearance of impropriety as well." Davis v. Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 741, 743 (1996).

I would hold the trial judge's actions would convey to a reasonable person a belief he would not receive a fair trial. The judge ruled in the presence of Wilson that the attorney had used "shenanigans" when advising Wilson of his constitutional right to seek a jury trial. We held however, in Jones v. Commonwealth, 24 Va. App. 636, 484 S.E.2d 618 (1997), a case that arose from this same circuit court, that a trial judge may not rely upon a scheduling order for determining waiver of a jury trial when the record does not show that the defendant had manifested by some deliberate action an election to forego his right to a jury trial. Id. at 640-41, 484 S.E.2d at 620-21. See also Robinson v. Commonwealth, 36 Va. App. 1, 548 S.E.2d 227 (2001); Herbert v. Commonwealth, 33 Va. App. 506, 534 S.E.2d 369 (2000). As punishment for the attorney's advice to Wilson to invoke his right to a jury trial, the trial judge sought to remove the attorney from his representation of Wilson and, when that could not be achieved, removed the attorney from the list of eligible court-appointed attorneys. Later, the judge made an affirmative effort to solicit the re-assignment of this case to his courtroom so that he could conduct the trial.

As indicated in the majority opinion, the trial judge later refused to accept a plea agreement as requested by Wilson and the Commonwealth. The record further establishes that the sentence imposed on Wilson exceeded the sentencing guidelines and exceeded the sentences imposed upon the lessee of the apartment (where the marijuana was hidden) and the owner of the van (where the cocaine was hidden), both of whom were arrested in the residence. Although Wilson represents on brief that his sentence exceeded those of all the defendants, the sentences of the others are not disclosed on the record.

I would hold that these circumstances establish that the trial judge abused his discretion in denying Wilson's motion that the judge recuse himself.

The evidence did not prove that Wilson actually possessed any of the marijuana or cocaine.

To support a conviction based upon constructive possession, "the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control.". . . Mere proximity to a controlled drug is not sufficient to establish dominion and control.

I agree that the circumstances Wilson was in were suspicious. He was seized in an apartment that contained marijuana and cocaine. Wilson had a large amount of cash and a weapon. Wilson had in his possession the key to a van that concealed $350,000 worth of cocaine and that contained a Ruger .45-caliber magazine, which fit the weapon Wilson had in his possession. While these suspicious circumstances were not trifles, the Commonwealth failed to prove, beyond mere suspicions, that Wilson was aware of the cocaine in the van (a vehicle that he did not own or occupy), that he was aware of the marijuana located in a closed kitchen cabinet (in an apartment he did not own or lease), and that he exercised the kind of dominion or control, commensurate with possession, over any of the marijuana or cocaine.

To sustain convictions for constructive possession, the Supreme Court and we have required much more compelling evidence than the circumstance here. "The evidence must go further than create a mere suspicion or probability of guilt. There must be credible evidence to arrive at a conclusion of guilt beyond a reasonable doubt." Rich v. Commonwealth, 198 Va. 445, 452, 94 S.E.2d 549, 554 (1956). Thus, for constructive possession, the evidence must be sufficient to prove beyond a reasonable doubt that the defendant was both aware of the presence and character of the substance and that he exercised dominion and control over the substance commensurate with actual possession. See e.g., Drew, 230 Va. at 474, 338 S.E.2d at 846 (holding that the evidence was insufficient to prove constructive possession by the defendant where it established, at most, that he resided at the residence and was near the residence the night the cocaine was seized from it); Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984) (proving that drugs were found secreted in the defendant's house was insufficient to prove he constructively possessed the drugs); McNair v. Commonwealth, 31 Va. App. 76, 86, 521 S.E.2d 303, 308 (1999) (holding that "`[s]uspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction [for constructive possession]'"); Nelson v. Commonwealth, 17 Va. App. 708, 711, 440 S.E.2d 627, 628 (1994) (arresting the defendant in a motel room registered to another was insufficient to prove he knew that cocaine was on the premises or that he exercised any control over the cocaine, where "[c]ocaine was secreted in a toothbrush holder in the [motel] bathroom, and a small amount was found on the carpet under the bed"); Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992) (holding that ownership or occupancy of a vehicle where drugs were located was insufficient to establish constructive possession); Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986) (holding that evidence was suspicious, but insufficient to establish constructive possession, when drugs were found in a hotel room registered to defendant and defendant was not seen in proximity to drugs).

This concern for a conviction based on suspicion is reflected in the statutory admonition that neither proximity to nor a proprietary interest in the premises containing the illegal substance is sufficient to convict — proof of "ownership or occupancy of premises or vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance." Code § 18.2-250. Notably, both factors were absent with regard to the cocaine found in the van. Wilson was neither the owner or occupant of the van nor was he in the proximity of the van during the seizure. Wilson was in the apartment, and the van was parked some distance away. The trial judge erred in concluding, even in the absence of these factors, that Wilson constructively possessed the drugs in the van.

As a comparison to our cases demonstrates, the circumstances do not establish Wilson's guilt beyond a reasonable doubt. For example, inBurchette, the defendant owned the vehicle, where police found his wallet, cell phone, pager, and bills in his name, in addition to marijuana packaged for distribution. Unlike in this case, where the cocaine was elaborately hidden in the vehicle, some of the marijuana discovered in Burchette's vehicle was in plain view. 15 Va. App. at 435, 425 S.E.2d at 83. The police also observed Burchette walking by the vehicle, which was parked in front of his home, shortly before he drove away in another vehicle. Id. We held that the evidence amounted to mere suspicion only, and we reasoned that because the Commonwealth failed to negate the reasonable inference that someone other than Burchette had used the car and placed the marijuana there, the evidence failed to support the conviction. Id. at 439, 425 S.E.2d at 86.

Wilson's possession of the key, coupled with the officer's discovery of the magazine in the van, does not establish Wilson's awareness of the cocaine concealed in hidden compartments. Wilson did not own the van. Indeed, no evidence proved he had been inside the van. The Supreme Court has also held that possession of a key to a location where drugs are located is not sufficient to establish either awareness or dominion and control. See Clodfelter v. Commonwealth, 218 Va. 619, 238 S.E.2d 820 (1977). This is true even when the defendant was the sole occupant of the place at issue. Id. at 621, 238 S.E.2d at 821. In Clodfelter, the defendant, like Wilson, had the key to the place where drugs were located (in Clodfelter's case, a hotel room). Id. Unlike Wilson, who had the key but was not the owner, Clodfelter was the only registered guest in that hotel room and was, thus, both owner and occupant. Despite this more compelling evidence, the Supreme Court reversed his conviction, finding that "while the evidence created a strong suspicion of guilt, it fell short of proving possession beyond a reasonable doubt." Id. at 623, 238 S.E.2d at 822. The Court made the following pertinent observations about the suspicious circumstances:

Distilled to its basic elements, the evidence, and reasonable inferences therefrom, show that Clodfelter rented the hotel room and that he had deposited some of his personal effects there. The evidence also shows that Clodfelter, when questioned by the police, gave a false identity. Certainly this evidence creates a strong suspicion of guilt, but it falls short of showing beyond a reasonable doubt that the drugs found in the hotel room were ever actually or constructively possessed by Clodfelter with an awareness of their character.

In addition to this failure of proof, the Commonwealth also failed to disprove reasonable hypotheses that flowed from the evidence that were "inconsistent with guilt." Despite extensive surveillance, the police did not testify about when or how Wilson arrived at the apartment, whether he drove the van, or for what purpose he was at the apartment. Because the cocaine was elaborately concealed in a hidden compartment, where it was discovered only after a drug sniffing dog alerted and an extensive search occurred, the evidence left entirely within the realm of reasonable possibility that the owner of the van, Javone McCantz, who was also seized during the raid at the apartment, alone possessed the cocaine and alone knew of its existence. The evidence does not negate the reasonable hypothesis that Wilson had the key for a purpose unrelated to the cocaine. No evidence even negated the inference that, if Wilson had driven the van, he had done so without being aware of the hidden cocaine. Indeed, no evidence proved Wilson had been in the van. LikeClodfelter and Burchette, the discovery of the .45-caliber Ruger magazine at most suggests that Wilson may have been in the van at some point in the past. We do not know when, because the Commonwealth's evidence failed to prove this critical fact.

The evidence was similarly lacking that Wilson was aware of the presence of the marijuana in the kitchen cabinet or that he exercised any measure of dominion and control over it. Police seized the marijuana from a closed kitchen cabinet. The only fact that was proved to suggest Wilson was aware of the marijuana was his mere presence in the apartment. The trial judge was not privileged to assume from this fact that Wilson knew of the presence of the marijuana. As the Supreme Court held in Huvar v. Commonwealth, 212 Va. 667, 187 S.E.2d 177 (1972), it is impermissible for a fact finder to infer awareness and control of drugs simply because a suspect is present at a location where drugs were found. In Huvar, the defendant was arrested in the bathroom of an apartment; drugs were scattered in plain view in other rooms, the apartment smelled of marijuana, and the defendant appeared to have been using drugs. 212 Va. at 668, 187 S.E.2d at 177-78. Despite the "suspicious circumstances," the Court held that the defendant did not have constructive possession of the drugs.

It is the theory of the Commonwealth that the police interrupted a "pot party." One could reasonably reach this conclusion from the evidence. However, the mere presence of defendant at the party is not sufficient to convict him of actual or constructive possession of the drugs that were found there. It was not his apartment. Those present were not shown to have been his guests or there at his invitation. None of the prescription containers in which some of the drugs were found bore his name on their labels. He made no statement, committed no act and indulged in no conduct from which the inference could be fairly drawn that he possessed or controlled the drugs which the police found.

Similarly, in Drew, the Supreme Court reversed a conviction for constructive possession where a search of a residence revealed the defendant's checkbook, bank statement, telephone bill, driver's license, vehicle registration, credit union voucher, and a large amount of cocaine and drug paraphernalia. Each documentary item listed the residence as the defendant's address. In addition the evidence proved the police saw the defendant standing near the residence. 230 Va. at 472, 338 S.E.2d at 845. Despite these suspicious circumstances, the Supreme Court held the evidence was insufficient to establish constructive possession: "At most, the evidence establishes that [the defendant] resided at . . . and . . . was near the residence the night the cocaine was seized. This is insufficient to prove constructive possession by the defendant." Id. at 474, 338 S.E.2d at 846.

In comparison to both Huvar and Drew, the evidence against Wilson was weaker still. He was not the lessee or the owner. The lessee was actually present in the apartment with Wilson and other people. The marijuana was not in plain view; it was hidden in the kitchen cabinet. The evidence failed to draw any connection, beyond speculation, between Wilson's money and the marijuana. The Commonwealth simply failed to provide evidence which tended to prove Wilson was aware of the presence of marijuana, beyond the suspicious circumstances. And this proof is required beyond a reasonable doubt to establish his guilt.

Similarly, Wilson was not in proximity of the hardball of cocaine when the police entered the apartment. He was in the kitchen; the hardball of cocaine was in the living room; the hardball of cocaine did not have his fingerprints. Moreover, unlike in Huvar, where the odor of marijuana was prevalent and drugs were scattered about, the presence of this one item of cocaine, which was in plain view but in a room where Wilson was not, certainly cannot provide the basis for the fact finder to conclude Wilson was aware of the presence and character of a single hardball of cocaine.

The essence of constructive possession for drugs is control, which must be proven beyond a reasonable doubt. If the Supreme Court and we could not conclude that the defendants in Burchette, Huvar, Behrens, and other cases constructively possessed drugs, we cannot sustain Wilson's conviction on weaker evidence. Our case law has been clear on the law of constructive possession and has guarded against "ad hoc judicial judgments against those often identified by chance discovery, and prosecuted by official whimsy." Charles H. Whitebread and Ronald Stevens,Constructive Possession in Narcotics Cases: To Have and Have Not, 58 Va. L. Rev. 751, 751 (May 1972). This record contains no "evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control." Powers, 227 Va. at 476, 316 S.E.2d at 740. In short, the evidence in this case is consistent with Wilson present at the apartment as a visitor; it failed to prove he possessed any of the drugs.

For these reasons, I would hold that the evidence was insufficient to support the drug related convictions. Thus, I would reverse the convictions and dismiss all indictments except possession of a firearm by a felon.

Humphreys, J., concurring, in part, and dissenting, in part.

I agree with the majority's analysis and conclusion that the trial judge was not required to recuse himself. I also agree that the Commonwealth presented sufficient evidence to support Wilson's convictions for possession of cocaine, possession of marijuana, possession of a firearm while in possession of a controlled substance, and possession of a firearm by a convicted felon.

I dissent, however, from the majority's conclusion that the trial court improperly refused to consider the proffered plea agreement. I agree with the majority's implicit holding that this is not a matter of constitutional import in that the trial court's failure to consider a plea agreement after the commencement of trial is not equivalent to depriving a criminal defendant of his constitutional right to plead guilty. However, because the "plea agreement" in this case had not been reduced to writing, I would hold that the trial judge was not required, under the plain language of Rule 3A:8(c), to consider the plea agreement because there was, in fact, no plea agreement for him to consider. Because the parties had not reduced the plea agreement to writing, I would hold that the decision of whether to consider the proposed plea agreement therefore rested in the discretion of the trial court. And, because there is no indication that the trial judge abused his discretion, I would affirm Wilson's convictions.

Under Article I, Section 8 of the Virginia Constitution, a criminal defendant has the constitutional right to plead guilty to the whole of an indictment. See Graham v. Commonwealth, 11 Va. App. 133, 139, 397 S.E.2d 270, 273 (1990). Also, "[t]he fact that the trial has begun has no effect on a defendant's constitutional right to plead guilty." Id. at 141, 397 S.E.2d at 274. Thus, "[t]he fact that a plea is tendered mid-trial is irrelevant to the analysis regarding a defendant's right to enter a plea of guilty," id., and "a defendant may [therefore] plead guilty at any time prior to the return of the jury's verdict concluding the guilt phase of a bifurcated trial." Daye v. Commonwealth, 21 Va. App. 688, 692, 467 S.E.2d 287, 289 (1996).

Although a criminal defendant does have a right under the Virginia Constitution to enter an unconditional guilty plea, this right does not extend further in constitutional terms to also encompass the right to halt a trial in progress or about to commence in order to enter a guilty plea conditioned on the terms of an unwritten plea agreement. As noted by the United States Supreme Court,

[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.

As the majority recognizes, although a guilty plea is an integral part of any plea agreement, a plea of guilty is therefore separate and distinct from a plea agreement. See United States v. Hyde, 520 U.S. 670, 677 (1997) (interpreting the federal equivalent to Rule 3A:8 and holding that the Ninth Circuit erred when it "equated acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty plea," explaining that a guilty plea and a plea agreement are only "`bound up together' in the sense that a rejection of the agreement simultaneously frees the defendant from his commitment to plead guilty" (emphasis added)). Accordingly, Wilson's right to plead guilty was not inseparable from his plea agreement. Rather, at most, Wilson's statement that the parties had reached a plea agreement evidenced his conditional intent to plead guilty — it did not constitute the guilty plea itself.

Here, then, the trial court's decision to disregard the orally proffered plea agreement did not preclude Wilson from pleading guilty. It merely prevented him from doing so in accordance with the terms of the agreement he had presumably reached with the Commonwealth's attorney. Accordingly, Wilson's constitutional right to plead guilty was neither implicated nor violated under the circumstances of this case.

According to Rule 3A:8(c), "[t]he attorney for the Commonwealth and the attorney for the defendant . . . may engage in discussions with a view toward reaching a [plea] agreement." And, once a plea agreement has been reached, the trial court may consider that agreement if it has been "reduced to writing, signed by the attorney for the Commonwealth, the defendant, and . . . his attorney, . . . and presented to the court."Id.; see also Wolfe v. Commonwealth, 1 Va. App. 498, 499, 339 S.E.2d 913, 914 (1986) ("This rule requires that a plea agreement be reduced to writing, signed by the attorney for the Commonwealth, the defendant and his attorney, and presented in open court."). As noted by the majority, the purpose of Rule 3A:8(c), which is procedural rather than substantive in nature, "is to ensure that plea agreements are fully disclosed to both the trial court and the defendant." Hairston v. Commonwealth, 16 Va. App. 941, 945, 434 S.E.2d 350, 353 (1993).

Wilson correctly points out that the terms of Rule 3A:8(c) contain no time limitations restricting the parties' ability to enter into plea negotiations. However, by the plain terms of Rule 3A:8(c)(2), a plea agreement in a felony case must be reduced to writing. See Rule 3A:8(c)(2) ("If a plea agreement has been reached . . . it shall, in every felony case, be reduced to writing. . . ." (emphasis added)). If this has not occurred, then there is no plea agreement for a court to consider within the meaning of the Rule. Cf. Commonwealth v. Sandy, 257 Va. 87, 91, 509 S.E.2d 492, 493-94 (1999) (holding that this Court "erred in concluding that the defendant and the Commonwealth's Attorney entered into a plea agreement in accordance with Rule 3A:8(c)(1)(C)(2)" because "the agreement in this case was never approved by the circuit court as required by Rule 3A:8").

Here, Wilson freely admits that the terms of the plea agreement were not reduced to writing. Thus, Rule 3A:8(c) is not implicated here. Rather, because the requirements of Rule 3A:8 had not been met, I would hold that the trial judge correctly found that there was no "plea agreement" for him to consider.

Moreover, the majority erroneously concludes that "the complete terms of the plea agreement were orally presented to the trial court." To the contrary, the record reflects that the only information available to the trial court was that Wilson's counsel stated to the court that "we're very close to a plea agreement," and the prosecutor responded that "we don't have a plea agreement written out. . . . It calls for a total sentence of twenty years with four to serve." In my view, these statements, taken together, fall short of representing a meeting of the minds sufficient to evidence any sort of agreement. Moreover, the parties did not proffer any of the other necessary specifics of a proper plea agreement: for example, whether Wilson was pleading guilty to all or some of the charges, to one or more lesser or reduced offenses, whether he was entering a plea of guilty or nolo contendere, or whether other charges would be dismissed, reduced, or simply not pursued. The majority's holding, by forcing the trial courts to halt proceedings in progress to consider an orally proffered "plea agreement" as nebulous as the one at issue here, undermines the clear underlying purpose of Rule 3A:8(c) — "to ensure that plea agreements are fully disclosed to both the trial court and the defendant." Hairston, 16 Va. App. at 945, 434 S.E.2d at 353 (emphasis added).

For these reasons, I disagree with the majority's conclusion that the parties had reached a "plea agreement" within the meaning of Rule 3A:8. Rather, because the terms of that agreement had been neither reduced to writing nor fully presented to the trial court, I would hold that there was no "plea agreement" for the trial court to consider.

At no point prior to the verdicts did Wilson actually change his "not guilty" plea to a "guilty" plea. Rather, on September 10, 2002, after extensive pretrial maneuvering that can only be described as a blatant, albeit unsuccessful, attempt at "judge shopping," Wilson merely advised the court that the parties were "very close" to a last-minute plea agreement. Even elevating this statement to the status of a motion to suspend the proceedings pending further negotiations between the parties, "as a general proposition, a trial court is given discretion in deciding whether to grant an untimely motion, taking into consideration whether the motion was designed to impede the efficient administration of criminal justice." Graham, 11 Va. App. at 141, 397 S.E.2d at 274. Here, in light of the defendant's history of "judge-shopping" and the posture of Wilson's case on September 10, 2002, I would hold that the trial court did not abuse its discretion when it refused to stop the trial for the purpose of entertaining the defendant's last-minute motion for consideration of a purported, unwritten plea agreement.

For these reasons, I would hold that the trial court did not err when it refused to consider the orally proffered plea agreement. Because I would therefore affirm the judgment of the trial court, I respectfully dissent from that portion of the majority's analysis.