William Deshaune Martin v. Commonwealth ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
WILLIAM DESHAUNE MARTIN
MEMORANDUM OPINION* BY
v. Record No. 1484-03-1 JUDGE WILLIAM H. HODGES
MARCH 23, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerome James, Judge
S. Clark Daugherty, Public Defender, for appellant.
Josephine F. Whalen, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
William Deshaune Martin, appellant herein, appeals his convictions for possession with the
intent to distribute cocaine, possession with the intent to distribute cocaine within 1,000 feet of a
school, possession with the intent to distribute heroin, and possession with the intent to distribute
heroin within 1,000 feet of a school, violations of Code §§ 18.2-248 and 18.2-255.2. Appellant
presents two issues for appeal: (1) whether the trial court violated his due process rights to a fair
trial by making conclusions before all the evidence was admitted and based on facts not in evidence
or inadmissible evidence; and (2) whether the trial court erred by relying on inadmissible hearsay
evidence. Finding no error by the trial court, we affirm its judgment.
BACKGROUND
Investigator Cory Handy asked an unknown woman to buy drugs for him. Handy gave her
twenty dollars for the purchase. Handy watched the woman cross the street and approach a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
light-colored car parked across the street from a high school. Handy observed the person in the car
had a dark complexion, wore a light-colored shirt, and wore a black cap tipped to one side. He saw
the woman reach into the car with the hand holding the money he gave her, make contact with the
person’s hand, and remove her hand clenched in a fist. She walked back to Handy’s car, keeping
the same hand clenched until she reached Handy. She handed him two capsules of heroin from her
clenched fist. The two drove several blocks from the area where other officers stopped them to
arrest the woman. Handy identified himself as an investigator, read the woman her rights, and
asked her for a description of the person in the car. She gave a similar description as Handy
observed, adding some detail, and stated she did not know the person’s name.
About fifteen minutes after the transaction, Handy and other officers returned to the area.
They saw the same vehicle, parked in the same place. A dark-complected male, wearing a
light-colored shirt and black hat was standing at the back of the car. When the officers exited their
car and identified themselves as police, appellant put his hand to his waist and ran. Handy and
Investigator Michael Miller gave chase. Miller testified he saw appellant throw a purple bag with
gold strings into a barrel as they chased appellant. Handy saw appellant throw a “dark object” into
the barrel, and he stopped to retrieve it. On top of the debris, Handy found a purple Crown Royal
bag with gold strings. Inside were fifty-six heroin capsules, weighing 4.2 grams, and twenty
individually wrapped baggies of crack cocaine, weighing 2.3 grams. The total value of the narcotics
was estimated at $960. Miller apprehended and arrested appellant. Appellant had over $400 cash
on his person.
At trial, Handy testified about the transaction between the woman and the man in the car.
Handy began to recount the statements the woman made after she was advised of her rights.
Appellant objected to the hearsay. The trial court allowed Handy to testify to the woman’s
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description for the limited purpose of explaining the officers’ subsequent actions and establishing
probable cause.
While the Commonwealth was questioning Handy for his expert opinion on whether the
amount of the recovered drugs was consistent or inconsistent with personal use, the trial judge
interrupted and asked the Commonwealth’s attorney, “why are we spending this much time on that
issue when the evidence so far is this . . . investigator saw . . . [appellant] selling drugs out of that
bag?” Appellant’s counsel interjected that there had been no evidence that appellant sold narcotics
from the bag. The trial court agreed by responding, “Well, no problem. But, there’s the bag. At
some point in time, [Handy’s] going to tie the bag with [appellant]. But [Handy] saw [appellant]
selling drugs.”
ANALYSIS
Appellant contends he was denied due process and a fair trial because the trial court made
findings before all the evidence was presented and considered inadmissible evidence. Although
appellant objected to the trial court’s assertion that Handy saw appellant sell drugs from the
Crown Royal bag, appellant failed to object on the above-stated constitutional grounds.
Appellant did not object to the trial court making premature findings as to the element of intent
to distribute or failing to adhere to the presumption of innocence until the conclusion of all the
evidence. Appellant merely brought the error of fact to the attention of the trial court, and the
trial court conceded its mistake. Additionally, appellant did not object that the trial court was
inappropriately considering the woman’s hearsay statements about the description of the dealer
as substantive evidence.
“Pursuant to Rule 5A:18, absent good cause or to attain the ends of justice, we will not
consider on appeal an argument that was not presented to the trial court, even if it involves
constitutional claims.” Ashby v. Commonwealth, 33 Va. App. 540, 545, 535 S.E.2d 182, 185
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(2000) (citation omitted). Rule 5A:18 requires that objections to a trial court’s action or ruling
be made with specificity in order to preserve an issue for appeal. See Campbell v.
Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc). A trial court must be
alerted to the precise issue to which a party objects. Neal v. Commonwealth, 15 Va. App. 416,
422-23, 425 S.E.2d 521, 525 (1992).
Therefore, Rule 5A:18 bars our consideration of this question on appeal. The trial judge
conceded his mistake and indicated no evidence suggested appellant was seen selling the heroin
out of the bag. Further, Handy gave an independent description of the dealer in the car, which
was consistent with the woman’s description. Upon arrest, appellant fit Handy’s description.
The trial court’s statement suggests it was concerned about the length of time spent on, or
cumulative nature of, the evidence as to one element of the offenses, not that it abandoned the
presumption of innocence. Thus, the record does not reflect any reason to invoke the good cause
or ends of justice exceptions to Rule 5A:18.
Appellant separately argues that the trial court erred by considering the woman’s hearsay
description of the dealer as substantive evidence. As noted above, although appellant objected to
the hearsay nature of the evidence, he did not specify at that time, or any time later in the trial,
that the trial court was inappropriately considering that evidence to weigh appellant’s guilt or
innocence. “The Court of Appeals will not consider an argument on appeal which was not
presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484,
488 (1998). See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of this question
on appeal. Moreover, nothing in the record reflects the trial court weighed the woman’s
description as substantive evidence and not solely for its limited purpose of establishing probable
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cause. Thus, the record does not reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
Accordingly, for the reasons stated herein, the judgment of the trial court is affirmed.
Affirmed.
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