Kenneth David Newton v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
KENNETH DAVID NEWTON
MEMORANDUM OPINION * BY
v. Record No. 1708-96-3 CHIEF JUDGE NORMAN K. MOON
OCTOBER 7, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LEE COUNTY
William C. Fugate, Judge
Walter E. Rivers for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Kenneth Newton appeals his jury trial convictions of
conspiring to commit a felony in violation of Code § 18.2-256,
distributing less than one-half ounce of marijuana in violation
of Code § 18.2-248.1(a)(1), and distributing more than one-half
ounce but less than five pounds of marijuana in violation of Code
§ 18.2-248.1(a)(2). The jury recommended the maximum sentence on
each charge, and the judge sentenced Newton based on the jury's
recommendation, with all sentences running consecutively, for a
total of 20 years in prison and twelve months in jail. Newton
asserts that the trial court erred (1) in finding the evidence
sufficient to prove that he distributed marijuana which weighed
more than one-half ounce; and (2) in ruling admissible the
testimony of a police officer that his definition of the term
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
"target" was "someone known to deal narcotics in the community."
We hold that the Commonwealth failed to prove that the
marijuana possessed by Newton weighed more than one-half ounce.
We also hold that it was error for the court to permit the
"target" testimony because of its highly prejudicial nature.
Therefore, we reverse the convictions and remand for a new trial.
Newton was arrested by Investigator Robert L. Givens, a
member of the Narcotics Division of the Virginia State Police.
During Newton's trial, Givens was asked whether Newton had become
the "target" of an undercover investigation. Givens responded
affirmatively and was then asked to define the term "target." He
responded that a "target" was someone "known to deal narcotics in
the community." Counsel objected, stating, "I am going to object
to this and would move for a mistrial."
The trial court responded, "I think I would overrule the
objection. The witness has testified that he has been a member
of the Virginia State Police 23 years, with the Narcotics
Division for 17 years . . . . I think that he would qualify
under those circumstances to be able to give the general
definition as to what that means in the area of narcotics."
Newton filed a motion to set aside the verdict and to award a new
trial, again arguing that Givens' testimony should not have been
admitted. At the hearing on that motion, the trial court stated:
Well, I did rule at that time, when the
motion was made, that I did not think it was
prejudicial because in his testimony he did
use the word "target" and some question was
asked what the word target meant, but I don't
think that he went beyond that point in any
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situation when he talked about Mr. Newton.
So I would overrule the motion on that
particular ground.
Givens also testified that he had overseen a number of
"controlled buys" during which Newton had sold marijuana to a
police informant. On cross-examination, Givens was asked whether
the marijuana Newton sold "appear[ed] to you to be marijuana with
the stems and seeds and the whole nine yards." Givens testified,
"[i]t appeared to me to be marijuana, the real thing."
Sergeant James Hartsock of the Lee County Sheriff's Office
testified that he sent the seized marijuana to the state forensic
laboratory for analysis. On cross-examination, he stated that he
did not know if the stalks, stems, and seeds had been removed
before it was weighed. When asked whether "[a]s far as you know,
they probably weighed the entire thing," he responded, "[t]hat's
their procedure." Hartsock was also asked if he had "any idea
what this stuff would weigh without the stalks and stems and
seeds." He testified, "No, I don't have any idea what it would
weigh before or after; that's why I asked the lab to weigh it."
Admissibility of Drug Weight
It is well established that "in every case the evidence of
the Commonwealth must show, beyond a reasonable doubt, every
material fact necessary to establish the offense for which a
defendant is being tried." Hill v. Commonwealth, 17 Va. App.
480, 484, 438 S.E.2d 296, 298 (1993). "Proof that the accused
possessed marijuana, as that material is defined in Code
§ 54.1-3401, is an essential element of each of the offenses
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proscribed by Code § 18.2-248.1. Likewise, proof that the
accused possessed the weight of marijuana proscribed by Code
§ 18.2-248.1(a)(2) is an essential element of that offense." Id.
at 484-85, 438 S.E.2d at 299.
Code § 54.1-3401 specifically provides that the definition
of marijuana "shall not include . . . the mature stalk of such
plant, fiber produced from such stalk, oil or cake made from the
seeds of such plant, any other compound, manufacture, salt,
derivative, mixture or preparation of such mature stalks, fiber
oil, cake, or the sterilized seed of such plant which is
incapable of germination." Accordingly, we have held that mature
marijuana stalks, sterilized seeds, and stems may not be used for
the purpose of meeting the minimum weight required for conviction
under Code § 18.2-248(a)(2). Id. at 484, 438 S.E.2d at 298.
When asked whether the marijuana Newton sold "appear[ed] to
be marijuana with the stems and seeds and the whole nine yards,"
Officer Givens replied, "[i]t appeared to me to be marijuana, the
real thing." Sergeant Hartsock stated that he had not asked the
state forensic laboratory to weigh the marijuana without the
stems, seeds, or stalks and that he did not know if the marijuana
had been weighed without that material. He further testified
that it was the state lab's procedure to weigh marijuana with the
seeds, stalks, and stems.
The Commonwealth failed to prove that the marijuana was
properly weighed or that, less the weight of the stems and
sterilized seeds, it weighed more than one-half ounce. Rather,
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the testimony of the Commonwealth's witnesses permits the
reasonable inference that the marijuana was weighed with stems
and seeds. Therefore, the evidence was not sufficient to prove
that the marijuana weighed more than one-half ounce.
Admissibility of Officer Givens' "Target" Testimony
Newton also asserts that the trial court erred in allowing
Officer Givens' testimony concerning the term "target" because
Givens expressed an opinion as to the ultimate fact in issue.
Newton further contends that the testimony was inadmissible other
crimes evidence and that its probative value was outweighed by
its resulting prejudice.
Newton's argument focuses on the following colloquy:
Commonwealth: And, Officer Givens, was there a time when
Kenneth Newton became what's known as a
target of an undercover investigation?
Givens: Yes, there was.
Commonwealth: Could you describe for the jury what a
target is?
Givens: A target is an individual who is known
to deal in narcotics in the community.
Counsel: Your Honor, I'm going to object to this
and would move for a mistrial.
Court: I think I would overrule the objection.
The witness has testified that he has
been a member of the Virginia State
Police for 23 years, with the Narcotics
Division for 17 years, and it's a
question of what the common definition
of.... what was the word?
Commonwealth: "Target," your Honor.
Court: Okay, I think that he would qualify
under those circumstances to be able to
give the general definition as to what
that means in the area of narcotics.
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Although Newton failed to state the grounds for his motion
for a mistrial, in response to his subsequent motion to set aside
the verdict because of the "target" testimony, the court
responded that it "did not think [the testimony] was
prejudicial[,] . . . [s]o I would overrule the motion on that
particular ground."
Rule 5A:18 provides that "[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling, except for good cause shown or to enable the
Court of Appeals to attain the ends of justice." Newton failed
to specify a basis for his objection to the "target" testimony.
In response to his motion for a new trial, however, the court
stated that it was rejecting the motion because it did not find
the testimony to be prejudicial. This response shows that the
court considered whether the testimony's prejudicial nature
outweighed its probative value.
"The purpose of the contemporaneous objection rule embodied
in Rule 5A:18 is to inform the trial judge of the action
complained of in order to give the judge the opportunity to
consider the issue and to take timely corrective action, if
warranted, in order to avoid unnecessary appeals, reversals and
mistrials." Robinson v. Commonwealth, 13 Va. App. 574, 576, 413
S.E.2d 885, 886 (1992). Here, that purpose was achieved because
the court considered the basis on which Newton now appeals. We
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therefore hold that Newton's assertion of error is not barred by
Rule 5A:18.
We further hold that the testimony's probative value, if
any, was outweighed by its highly and unfairly prejudicial
nature. Officer Givens testified that Newton was a "target[--]an
individual known to deal in narcotics in the community." The
admission of this testimony created a manifest probability that
Newton was improperly prejudiced. See id. at 579, 413 S.E.2d at
888. Additionally, the jury's recommendation of the maximum
sentence on all three charges and the court's implementation of
this recommendation, with the sentences to run consecutively for
a total of 20 years in prison and twelve months in jail, suggest
that the "target" testimony was indeed highly prejudicial. The
trial court erred by not declaring a mistrial because the
testimony may have prejudiced the jurors against Newton by
portraying him as a person with a propensity to distribute
narcotics. We therefore reverse and remand for a new trial on
the conspiracy charge and two misdemeanor charges of distributing
less than one-half ounce of marijuana.
Reversed and remanded.
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