COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗ Argued at Richmond, Virginia
JAMES TYRONE McCRAY MEMORANDUM OPINION ∗∗ BY v. Record No. 0200-99-2 JUDGE JAMES W. BENTON, JR. MARCH 21, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge
Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The trial judge convicted James Tyrone McCray for possession
of cocaine. See Code § 18.2-250. On appeal, McCray contends the
trial judge erred (1) in permitting joinder of his trial with the
trial of a codefendant and (2) in finding the evidence sufficient
to prove beyond a reasonable doubt that he possessed cocaine. For
the reasons that follow, we reverse the conviction.
∗ Justice Lemons participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
McCray and James Gregory were arrested and charged with
possession of a piece of crack cocaine that the police found in
the center console of Gregory's automobile. Prior to trial, the
prosecutor filed a motion to join the trials of McCray and
Gregory. In the motion and at the hearing on the motion, the
prosecutor asserted that the offenses occurred at the same time
and place, that the transaction was the same, that the evidence
was the same, and that McCray and Gregory acted in concert in the
offense. Opposing the motion, McCray's counsel argued, in part,
as follows:
[T]here is a Bruton [v. United States, 391 U.S. 123 (1968),] issue in this particular case, because we have a statement by [Gregory] that is not otherwise admissible against [McCray] that implicates [McCray]. It's not a declaration against interest, so it is not going to be able to come in, in any other hearsay objection. I think because of the potential Bruton violation, there would be prejudice to [McCray] to be tried at the same time.
Finding "good cause," the trial judge granted the motion. The
trial judge ruled, however, as follows:
There will be no Bruton statements admitted at trial. If the Commonwealth intends to introduce them and an objection is made, the Court will sustain that objection.
At the joint trial, Officer Sybil El-Amin testified that
during daylight she saw McCray exchange money with another man
as McCray stood beside an automobile. Before entering the
- 2 - passenger side of the automobile, McCray looked in the direction
of the officer's marked police vehicle. The officer drove
around the block and then followed the automobile as it moved
away. Seeing "a rejection [inspection] sticker" on the
automobile, the officer activated her emergency lights to make a
traffic stop. The officer then "called in" the stop and
requested another police unit. While communicating with her
dispatcher, the officer noticed that the upper portion of
McCray's body was moving back and forth and side-to-side.
The officer then walked to the passenger side of the
automobile and told McCray to exit the automobile. The officer
"pat[ted] him down" and told him to stand at the rear of the
automobile. The officer then spoke to Gregory, who was the
driver. Gregory gave the officer consent to search his
automobile.
The officer testified that the automobile had a center
console, which "was a bucket" that fit "over the hump in the
center of the seat." She further testified that it was "closer
to . . . McCray's side than it was to . . . Gregory's side."
During her search, the officer saw six or seven lottery tickets
at the bottom of the "center console of the [automobile]."
Among those tickets, she found a piece of cocaine about the size
of "a pencil eraser" wrapped inside a folded lottery ticket.
The officer did not ask Gregory to whom the lottery tickets
belonged. Gregory "did not say they belonged to him"; however,
- 3 - he did say "he knew who they belonged to." The trial judge
sustained McCray's objection to several statements the officer
attributed to Gregory.
After finding the cocaine, the officer directed "the other
police unit to place . . . McCray in handcuffs and . . . McCray
tried to run." When the officer took McCray to the police
station, she heard McCray tell "Gregory that he better not tell
them -- you better not say the drugs are mine." Although she
could not "remember the exact wording," she also heard McCray
say "you know what's going to happen if you say -- something to
that effect." She acknowledged that McCray told Gregory "you
better not say those drugs were mine, you better not lie on me,
things along that line."
The trial judge acquitted Gregory and convicted McCray of
possession of the cocaine. This appeal followed.
II.
"To sustain a conviction for possession of a controlled
substance in violation of Code § 18.2-250, the evidence must
prove beyond a reasonable doubt that the accused was aware of
the presence and character of the controlled substance." Jones
v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864
(1994). When the Commonwealth seeks to prove beyond a
reasonable doubt that an accused constructively possessed a
controlled substance, "the Commonwealth must point to evidence
of acts, statements, or conduct of the accused or other facts or
- 4 - circumstances which tend to show that the [accused] was aware of
both the presence and character of the substance and that it was
subject to his dominion and control." Drew v. Commonwealth, 230
Va. 471, 473, 338 S.E.2d 844, 845 (1986) (citation omitted).
Because the Commonwealth relied upon circumstantial
evidence, we are governed by the following principles:
[W]ell established principles apply to testing the sufficiency of circumstantial evidence. In LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950), [the Supreme Court] summarized those principles as follows:
". . . [I]f the proof relied upon by the Commonwealth is wholly circumstantial, as it here is, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty. . . ."
But, circumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty. The actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt to sustain his conviction.
Clodfelter v. Commonwealth, 218 Va.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗ Argued at Richmond, Virginia
JAMES TYRONE McCRAY MEMORANDUM OPINION ∗∗ BY v. Record No. 0200-99-2 JUDGE JAMES W. BENTON, JR. MARCH 21, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge
Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The trial judge convicted James Tyrone McCray for possession
of cocaine. See Code § 18.2-250. On appeal, McCray contends the
trial judge erred (1) in permitting joinder of his trial with the
trial of a codefendant and (2) in finding the evidence sufficient
to prove beyond a reasonable doubt that he possessed cocaine. For
the reasons that follow, we reverse the conviction.
∗ Justice Lemons participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
McCray and James Gregory were arrested and charged with
possession of a piece of crack cocaine that the police found in
the center console of Gregory's automobile. Prior to trial, the
prosecutor filed a motion to join the trials of McCray and
Gregory. In the motion and at the hearing on the motion, the
prosecutor asserted that the offenses occurred at the same time
and place, that the transaction was the same, that the evidence
was the same, and that McCray and Gregory acted in concert in the
offense. Opposing the motion, McCray's counsel argued, in part,
as follows:
[T]here is a Bruton [v. United States, 391 U.S. 123 (1968),] issue in this particular case, because we have a statement by [Gregory] that is not otherwise admissible against [McCray] that implicates [McCray]. It's not a declaration against interest, so it is not going to be able to come in, in any other hearsay objection. I think because of the potential Bruton violation, there would be prejudice to [McCray] to be tried at the same time.
Finding "good cause," the trial judge granted the motion. The
trial judge ruled, however, as follows:
There will be no Bruton statements admitted at trial. If the Commonwealth intends to introduce them and an objection is made, the Court will sustain that objection.
At the joint trial, Officer Sybil El-Amin testified that
during daylight she saw McCray exchange money with another man
as McCray stood beside an automobile. Before entering the
- 2 - passenger side of the automobile, McCray looked in the direction
of the officer's marked police vehicle. The officer drove
around the block and then followed the automobile as it moved
away. Seeing "a rejection [inspection] sticker" on the
automobile, the officer activated her emergency lights to make a
traffic stop. The officer then "called in" the stop and
requested another police unit. While communicating with her
dispatcher, the officer noticed that the upper portion of
McCray's body was moving back and forth and side-to-side.
The officer then walked to the passenger side of the
automobile and told McCray to exit the automobile. The officer
"pat[ted] him down" and told him to stand at the rear of the
automobile. The officer then spoke to Gregory, who was the
driver. Gregory gave the officer consent to search his
automobile.
The officer testified that the automobile had a center
console, which "was a bucket" that fit "over the hump in the
center of the seat." She further testified that it was "closer
to . . . McCray's side than it was to . . . Gregory's side."
During her search, the officer saw six or seven lottery tickets
at the bottom of the "center console of the [automobile]."
Among those tickets, she found a piece of cocaine about the size
of "a pencil eraser" wrapped inside a folded lottery ticket.
The officer did not ask Gregory to whom the lottery tickets
belonged. Gregory "did not say they belonged to him"; however,
- 3 - he did say "he knew who they belonged to." The trial judge
sustained McCray's objection to several statements the officer
attributed to Gregory.
After finding the cocaine, the officer directed "the other
police unit to place . . . McCray in handcuffs and . . . McCray
tried to run." When the officer took McCray to the police
station, she heard McCray tell "Gregory that he better not tell
them -- you better not say the drugs are mine." Although she
could not "remember the exact wording," she also heard McCray
say "you know what's going to happen if you say -- something to
that effect." She acknowledged that McCray told Gregory "you
better not say those drugs were mine, you better not lie on me,
things along that line."
The trial judge acquitted Gregory and convicted McCray of
possession of the cocaine. This appeal followed.
II.
"To sustain a conviction for possession of a controlled
substance in violation of Code § 18.2-250, the evidence must
prove beyond a reasonable doubt that the accused was aware of
the presence and character of the controlled substance." Jones
v. Commonwealth, 17 Va. App. 572, 574, 439 S.E.2d 863, 864
(1994). When the Commonwealth seeks to prove beyond a
reasonable doubt that an accused constructively possessed a
controlled substance, "the Commonwealth must point to evidence
of acts, statements, or conduct of the accused or other facts or
- 4 - circumstances which tend to show that the [accused] was aware of
both the presence and character of the substance and that it was
subject to his dominion and control." Drew v. Commonwealth, 230
Va. 471, 473, 338 S.E.2d 844, 845 (1986) (citation omitted).
Because the Commonwealth relied upon circumstantial
evidence, we are governed by the following principles:
[W]ell established principles apply to testing the sufficiency of circumstantial evidence. In LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950), [the Supreme Court] summarized those principles as follows:
". . . [I]f the proof relied upon by the Commonwealth is wholly circumstantial, as it here is, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty. . . ."
But, circumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty. The actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt to sustain his conviction.
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977).
- 5 - III.
The evidence proved that the piece of cocaine was wrapped
in a lottery ticket that was among other lottery tickets at the
bottom of the "console" of Gregory's automobile. No evidence
proved that McCray put the cocaine there or was aware of its
presence inside the wrapped lottery ticket. Indeed, the officer
testified that the cocaine was not in plain view.
Although the officer saw McCray's upper body moving after
she stopped Gregory for having a rejection inspection sticker on
his automobile, that observation raises only a suspicion that
his movement bore a connection to the cocaine. Likewise,
McCray's warning to Gregory not to tell a lie establishes no
inference that connects McCray to the cocaine.
Although the trial judge acquitted Gregory of the
possession of the cocaine found in his automobile, that
circumstance did not prove McCray possessed the cocaine. The
only evidence that did not require the trial judge to speculate
while assessing McCray's guilt or innocence was evidence of
opportunity. Yet, it is well established that "mere opportunity
to commit an offense raises only 'the suspicion that the
defendant may have been the guilty agent; and suspicion is never
enough to sustain a conviction.'" Christian v. Commonwealth,
221 Va. 1078, 1082, 277 S.E.2d 205, 208 (1981) (quoting Simmons
v. Commonwealth, 208 Va. 778, 783, 160 S.E.2d 569, 573 (1968)).
- 6 - Because we hold that the evidence was insufficient to
support McCray's conviction, we need not address the joinder
issue. Accordingly, we reverse the conviction and dismiss the
indictment.
Reversed and dismissed.
- 7 -