Al-Khaliq Mayweather, a/k/a Keith Mayweather v. CW ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia
AL-KHALIQ MAYWEATHER, A/K/A
KEITH MAYWEATHER
MEMORANDUM OPINION * BY
v. Record No. 0342-00-2 JUDGE JERE M. H. WILLIS, JR.
MARCH 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LANCASTER COUNTY
Joseph E. Spruill, Jr., Judge
Charles J. McKerns, Jr. (McKerns & McKerns,
on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of three counts of
transporting one or more ounces of cocaine into the Commonwealth
with the intent to distribute, in violation of Code
§ 18.2-248.01, Al-Khaliq Mayweather contends that the trial
court erred (1) in admitting a photograph of him into evidence,
(2) in admitting evidence of cocaine and a firearm, and (3) in
denying his motion to strike because the evidence was
insufficient to support his convictions. For the following
reasons, we reverse the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
In the summer of 1998, Lieutenant Ashby Allen, Jr., Chief
Investigator for the Lancaster County Sheriff's Department, and
Investigator Joan Webb began investigating Mayweather's
involvement in the "Jersey Boys" drug distribution ring. The
"Jersey Boys" were suspected of trafficking in crack cocaine and
distributing it in Lancaster County. Pursuant to this
investigation, Mayweather was arrested and charged with five
counts of transporting one or more ounces of cocaine into the
Commonwealth with the intent to distribute in violation of Code
§ 18.2-248.01. Each count related to a different month, May,
June, July, August, and September, 1998.
At trial, Faith Parker testified that the "Jersey Boys" --
Mayweather, Daniel Ford, Andre Noel, and Delvin Thornton --
stayed in her apartment for several months during the summer of
1998. She testified that she knew the men distributed cocaine
from her apartment and that Ford and Mayweather were the
"ringleaders." She stated that the men would store the cocaine
in an attic outside her apartment and, when a buyer would call,
Ford and Mayweather would use a razor blade or box cutter to cut
the cocaine into smaller pieces for sale. She identified a
pager, razor blade box, and a digital scale as having been used
by Mayweather. Parker testified that, when the men would run
out of cocaine, they would travel to New Jersey to "re-up." She
stated that, in the beginning, the men would "re-up" about once
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a month, but when business increased, they began making the trip
every two weeks. Parker testified that she knew the substance
being distributed was cocaine because she had "seen cocaine
before" and the men referred to it as "cookies," which she knew
was a slang term for cocaine.
Parker testified that in June of 1998, she accompanied the
"Jersey Boys" to Newark, New Jersey, to pick up cocaine. She
said that the men dropped her off in Newark and proceeded to New
York. When they returned to Newark, they had cocaine, which she
called "cookies." She described these "cookies" as "[r]ound and
about the size of a small personal pan pizza." She said that on
this trip, the men brought back "four" such "cookies," which
they put in a bag with pepper to conceal the smell and hid it in
a television set to transport back to Virginia. She was shown a
demonstrative model, made of dental stone by Lieutenant Allen,
and she testified that it was the same size, color, and weight
as the "cookies" she saw on the trip.
Parker further testified that in July of 1998, she went
with Mayweather and the others to the bus station in Richmond,
Virginia, to meet a girl who was transporting drugs from New
Jersey. Parker stated that she met the girl in the bus station
bathroom, placed the cocaine in her pocket and carried it to the
car where Mayweather, Ford and Noel were waiting. She described
the package as "pretty heavy" and estimated that it contained
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three or four crumbled "cookies" that were of the same weight as
the demonstrative model she was shown earlier.
Parker testified that after she had a baby on July 26,
1998, the "Jersey Boys" got their own house on Mary Ball Road.
She said she would go over every other week to cook dinner for
them. She said she never saw drugs on those premises, but the
phone and pagers were "still ringing off the hook," and the men
talked about having cocaine.
Parker testified that in September of 1998, she accompanied
the "Jersey Boys" on another trip to New Jersey. On this
occasion, she went with the men from New Jersey to New York,
where they purchased five "cookies" and a "whitish" colored
brick that they referred to as "raw." She testified that they
paid approximately $8,000 for those "cookies," which were of the
same size and weight as the demonstrative model shown to her
earlier. She admitted that after the cocaine was packaged in
her baby bag, she boarded a bus with it and brought it to
Virginia to her house, where she hid it outside under her air
conditioning vent. The next day, her landlord, Francis Norris,
found and destroyed it.
Francis Norris testified that he rented a house to Parker
in the summer of 1998. He testified that, while cutting the
grass at the house, he discovered cocaine hidden beneath a board
near the house. He said that he destroyed the cocaine and
evicted Parker. She told him that the cocaine belonged to
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Daniel Ford and that she was afraid of Ford and his associates.
Norris testified that he telephoned Ford and asked whether the
cocaine was his. Ford initially denied the cocaine belonged to
him, but when Norris told him he had destroyed it, Ford said
that it was "part of his job" and demanded payment for its
value. Norris told the sheriff of his discovery.
Investigator Webb testified that on October 9, 1998, the
police obtained an arrest warrant for Noel, one of the "Jersey
Boys," on a failure to appear charge. They proceeded to the
residence on Mary Ball Road to serve the warrant and searched
the premises in the process. Mayweather was not present. The
investigators recovered crack cocaine from an abandoned
refrigerator in a shed on the property, on the stairway leading
to the attic in the house, on the top kitchen shelf, and over
the doorway to the shed. Investigator Webb estimated that the
value of the cocaine seized totaled approximately $800. The
officers also found a single-edge razor blade with off-white
residue on it on top of the kitchen refrigerator, a box of
approximately two hundred miniature Ziploc bags, an open package
of single-edge razor blades (but no razor), and pagers. Under
the floor vent in the dining room, they found a small digital
scale and a semi-automatic handgun.
In a separate proceeding, Mayweather was tried for
possession of the firearm and drugs located during the search
and was acquitted.
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Investigator Webb testified that, on the day Mayweather was
arrested, he had on his person a learner's driving permit, which
he had gotten the day before at the local DMV, his social
security card, and a GTE telephone bill. The telephone bill
displayed Mayweather's name and the telephone number of the
house on Mary Ball Road. The bill reflected numerous calls to
New Jersey.
Lieutenant Allen testified that, based upon Parker's
description of the "cookies," he created a model of a "cookie"
from dental stone, a substance used by the police to make
castings of footprints and tool marks. This was the
demonstrative model shown to Parker while she was testifying.
Lieutenant Allen testified that he weighed the model, and
determined its weight to be 5.3 ounces.
At the conclusion of the evidence, Mayweather moved to
strike on the ground that the Commonwealth had failed to prove
that the substance being transported was cocaine. As to the May
and August charges, Mayweather's counsel argued further, "I
think you have to resort to speculation to say that anything was
transported during that period of time." The trial court denied
the motion, and the jury found Mayweather guilty of the July,
August, and September charges, but not guilty on the May and
June charges.
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II. MUG SHOTS
At trial, Parker was asked to identify photographs of the
"Jersey Boys." Mayweather objected to the admission of his
photograph into evidence on the ground that it was a "mug shot,"
and he was therefore prejudiced by its introduction. The
photograph was unquestionably a "mug shot."
In Johnson v. Commonwealth, 2 Va. App. 447, 345 S.E.2d 303(1986), we adopted a three-part test to determine the
admissibility of "mug shots." To be admissible, each of the
following three conditions must be met:
(1) The Government must have a demonstrable
need to introduce the photographs;
(2) The photographs themselves, if shown to
the jury, must not imply that the defendant
has a prior criminal record; and
(3) The manner of introduction at trial must
be such that it does not draw particular
attention to the source or implications of
the photographs.
Id. at 454, 345 S.E.2d at 307.
The Commonwealth had no demonstrable need to introduce the
"mug shot" photograph of Mayweather. His identity was
unquestioned. The prejudice resulting from the photograph's
introduction outweighed any slight probative value. Therefore,
we conclude that the admission of the photograph was reversible
error.
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III. ADMISSIBILITY OF COCAINE AND FIREARM
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion."
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1988) (citation omitted). "'[E]vidence is relevant if it tends
to establish the proposition for which it is offered.'"
Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d
436, 441 (1987) (citation omitted). "'Upon finding that certain
evidence is relevant, the trial court is then required to employ
a balancing test to determine whether the prejudicial effect of
the evidence sought to be admitted is greater than its probative
value.'" Braxton v. Commonwealth, 26 Va. App. 176, 186, 493
S.E.2d 688, 692 (1997) (citations omitted). On appeal, a trial
court's ruling that the probative value outweighs any incidental
prejudice will be reversed only on a clear showing of an abuse
of discretion. See Ferrell v. Commonwealth, 11 Va. App. 380,
390, 399 S.E.2d 614, 620 (1990).
A. EVIDENCE OF COCAINE
Mayweather contends that the trial court erroneously
admitted into evidence cocaine for which he had previously been
found not guilty of possessing. We disagree.
We have held that,
[w]here a course of criminal conduct is
continuous and interwoven, consisting of a
series of related crimes, the perpetrator
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has no right to have the evidence
"sanitized" so as to deny the jury knowledge
of all but the immediate crime for which he
is on trial. The fact-finder is entitled to
all of the relevant and connected facts,
including those which followed the
commission of the crime on trial, as well as
those which preceded it; even though they
may show the defendant guilty of other
offenses. Evidence of such connected
criminal conduct is often relevant to show
motive, method, and intent.
Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577
(1984) (citations omitted).
Here, the fact that cocaine was found at the house where
Mayweather was living was relevant to the issue of Mayweather's
motive, method, and intent in transporting cocaine into the
Commonwealth. The Commonwealth produced direct evidence that
linked Mayweather to the residence where the cocaine was
discovered and circumstantial evidence permitted the inference
that Mayweather was involved in a continuous and interwoven
course of criminal conduct. Production of the cocaine
corroborated Parker's testimony and was probative of the charges
on trial. The trial court did not abuse its discretion in
admitting the cocaine into evidence.
B. EVIDENCE OF A FIREARM
Mayweather also contends that the trial court erroneously
admitted into evidence a firearm for which he had previously
been acquitted of possessing. We agree.
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The firearm, which was found in Mayweather's residence
along with the cocaine and other drug paraphernalia, was
irrelevant to the charges of transporting cocaine into the
Commonwealth. It did not corroborate Parker's testimony.
Parker did not mention the use of a firearm. Its introduction
into evidence prejudiced Mayweather. The trial court erred in
admitting the firearm into evidence.
IV. SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is challenged on
appeal, "we review the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Archer v. Commonwealth, 26 Va.
App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
In challenging the sufficiency of the evidence to support
his convictions, Mayweather argues that the Commonwealth failed
to prove that the substance transported in July, August, and
September was in fact cocaine. With regard to the August
charge, he also argues that the Commonwealth did not prove he
was a criminal agent or that the substance transported weighed
more than one ounce. We find that the evidence was sufficient
to prove that the substance transported in July and September
was in fact cocaine and that the evidence was insufficient to
support the August charge.
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A. JULY AND SEPTEMBER CHARGES
Mayweather first contends that the Commonwealth failed to
prove the substance transported in July, August, and September
was in fact cocaine. We disagree.
The Commonwealth never gained possession of the substances
transported in July, August, or September, and therefore was
unable to conduct laboratory analysis of those substances. The
only evidence establishing the nature of the substances was the
following testimony of Parker:
[Commonwealth's attorney]:
Q. Did you see drugs?
A. Yes.
Q. What kind of drugs?
A. Cocaine.
[Defense attorney]: Judge, I'm going to object
to that as a conclusion.
[Commonwealth's attorney]:
Q. Why did you think it was cocaine?
A. Because I've seen cocaine before.
Q. What did they call it?
A. Cookies.
Q. What did that mean to you?
A. It's a slang term for cocaine.
When a party raises an objection, it is his responsibility
to obtain a ruling from the trial court. If the party fails to
do this, "there is no ruling for us to review on appeal."
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Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489
(1998). See Taylor v. Commonwealth, 208 Va. 316, 324, 157
S.E.2d 185, 191 (1967) (finding that the defendant's objection
was not preserved for appeal where he did not obtain a ruling
from the court). Because the trial court never ruled on
Mayweather's objection to Parker's characterization of the
substance as cocaine, there is no ruling for us to review.
After the objection, the Commonwealth laid a foundation for
Parker to testify that the substance was cocaine. Mayweather
did not thereafter object.
"The nature of the illegal substance transferred need not
be proved by direct evidence but can be demonstrated by
circumstantial evidence." Hill v. Commonwealth, 8 Va. App. 60,
63, 379 S.E.2d 134, 136 (1989) (en banc) (citations omitted).
The circumstantial evidence that may be considered includes:
"[E]vidence of the physical appearance of
the substance involved in the transaction,
evidence that the substance produced the
expected effects when sampled by someone
familiar with the illicit drug, evidence
that the substance was used in the same
manner as the illicit drug, testimony that a
high price was paid in cash for the
substance, evidence that the transactions
involving the substance were carried on with
secrecy or deviousness, and evidence that
the substance was called by the name of the
illegal narcotic by the defendant or others
in his presence."
Id. (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th
Cir. 1976)).
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Parker testified that she recognized the substance as
cocaine, because she had seen cocaine before. She testified
that the "Jersey Boys," including Mayweather, called the cocaine
by the slang term "cookies," which means "cocaine." She
testified to specific incidents in July and September when the
"Jersey Boys," including Mayweather, carried on their operation
with secrecy and deviousness. She testified that the "Jersey
Boys," including Mayweather, paid a high price in cash for the
substance in September, when she accompanied them to New Jersey
and New York. All of this direct and circumstantial evidence
was sufficient to prove that the "Jersey Boys," including
Mayweather, transported cocaine into the Commonwealth in July
and September.
B. AUGUST CHARGE
The only evidence tending to prove Mayweather guilty of the
August charge was the testimony of Parker that the "Jersey Boys"
went to New Jersey to restock their cocaine supply at least once
a month between May and September of 1998. She further
testified that, as business increased, they went more
frequently, as often as every two weeks. She recited no
specific instance when she accompanied the men or saw the men
transport cocaine into the Commonwealth during the month of
August. This testimony was insufficient to establish
Mayweather's guilt on the August charge. Therefore,
Mayweather's conviction for transporting cocaine into the
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Commonwealth between August 1 and August 31, 1998, will be
reversed. We need not address whether the substance alleged to
have been transported during August weighed in excess of one
ounce.
We reverse and remand Mayweather's convictions relating to
July and September for retrial in accordance with this opinion,
if the Commonwealth be so advised. We reverse and order
dismissed Mayweather's August conviction.
Reversed and remanded in part,
reversed and dismissed in part.
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