Merritt v. Commonwealth

704 S.E.2d 158, 57 Va. App. 542, 2011 Va. App. LEXIS 25
CourtCourt of Appeals of Virginia
DecidedJanuary 25, 2011
Docket1871081
StatusPublished
Cited by10 cases

This text of 704 S.E.2d 158 (Merritt v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Merritt v. Commonwealth, 704 S.E.2d 158, 57 Va. App. 542, 2011 Va. App. LEXIS 25 (Va. Ct. App. 2011).

Opinions

UPON A REHEARING EN BANC

McCLANAHAN, Judge.

A jury convicted Glen Patrick Merritt of possession of ecstasy (MDMA), a Schedule I controlled substance, with intent to distribute, second or subsequent offense, in violation of Code § 18.2-248; transporting ecstasy into the Commonwealth, with intent to distribute, in violation of Code § 18.2-248.01; and conspiracy to possess ecstasy with intent to distribute in violation of Code § 18.2-256. The Commonwealth’s theory was that Merritt served as the “muscle” in an illegal narcotics scheme in which his role was to safeguard the transportation of a large quantity of ecstasy into the Commonwealth. Merritt contends the evidence failed to prove the [546]*546Commonwealth’s theory and was, therefore, insufficient to support his convictions. A panel majority of this Court agreed and reversed the convictions.1 We granted a petition for rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en banc, we affirm the trial court.

I. STANDARD OF REVIEW

“On review of a challenge to its sufficiency, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below, and grant to it all reasonable inferences fairly deducible therefrom.” Nolen v. Commonwealth, 53 Va.App. 593, 595, 673 S.E.2d 920, 921 (2009); see also Barnes v. Commonwealth, 279 Va. 22, 35, 688 S.E.2d 210, 217 (2010). “Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt.” United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984). See also McMillan v. Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009); Jones v. Commonwealth, 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009); Clanton v. Commonwealth, 53 Va.App. 561, 566, 673 S.E.2d 904, 906-07 (2009) (en banc).

II. BACKGROUND

On August 6, Virginia Beach police conducted an undercover drug interdiction at a bus depot operated by Today’s Bus, a bus line that conducts nonstop bus trips between the cities of Virginia Beach and New York.2 Detective Dean Massetti [547]*547arrived at the depot, dressed in civilian clothes, with his K-9, Sheena, at approximately 12:30 a.m. as the bus from Chinatown in New York was pulling into the depot parking lot. Detective Christopher Biswurm arrived shortly thereafter and followed Massetti and Sheena through the parking lot as they approached the bus. Sergeants Kenneth Dimitry and Richard Brereton were stationed nearby and observed a silver Lexus enter the parking lot. Because the driver and passenger of the Lexus “literally snapped their heads around to look at what was going on” when Massetti and Sheena passed by them, Dimitry and Brereton continued to watch them and observed the Lexus move out of the lighted area of the parking lot into a darker area that provided easy access to the road. The driver and passenger were later identified as Perry Bolton and Glen Merritt respectively. Merritt exited the vehicle holding a cell phone to his ear and followed Massetti and Sheena toward the bus. Merritt stood at the rear of the bus as Massetti sent Sheena into the luggage compartment of the bus to detect the odor of any illegal narcotics.3 Although Merritt was holding a cell phone to his ear, he was not talking into the cell phone or changing facial expressions but focused his attention on the luggage compartment area. In fact, according to Detective Biswurm, it would have been too noisy at the rear of the bus to hear anyone on a cell phone. He compared Merritt’s behavior to that of police officers conducting surveillance who “act like we’re talking into our phone, basically to draw attention away from us.”

After a short period of time, Merritt began looking into the crowd of passengers departing from the bus. Merritt then turned his attention to a male, later identified as Anthony McDaniels, as McDaniels looked in the luggage compartment. [548]*548McDaniels retrieved a suitcase from the luggage compartment and, accompanied by Erica Spratley, walked in front of Merritt. There was no greeting between Merritt and McDaniels or Spratley, but Merritt began “shadowing” McDaniels and Spratley and “behaving as if he was being a lookout” as they walked across the parking lot.4 Sergeant Dimitry testified that Merritt was, again, behaving the same way police do when they run surveillance on undercover drug operations.5 When McDaniels and Spratley reached the vehicle, Merritt continued walking past the vehicle and stood fifteen to thirty feet away “scanning the parking lot” and “watching what was taking place at the vehicle.” Bolton exited the vehicle, retrieved the suitcase from McDaniels, and placed it into the trunk of the Lexus.

Sergeant Dimitry instructed Massetti and Biswurm to approach the occupants of the Lexus because he believed they were acting “out of the ordinary for someone just picking somebody up from the bus stop.” As they approached, Massetti observed a plastic baggie corner on the ground underneath the front passenger’s door. According to Massetti and Biswurm, a plastic baggie corner is a common delivery system for street-level narcotics. This plastic baggie corner appeared to be “discarded remains.” Massetti took Sheena back to his van, retrieved a flashlight, and returned to the Lexus. When he returned, McDaniels was seated in the driver’s seat.6 Merritt was seated in the front passenger’s seat. Bolton was seated in the rear seat behind McDaniels, and Spratley was seated in the rear seat behind Merritt. Massetti identified himself to McDaniels and asked him about the baggie corner. [549]*549McDaniels claimed to have no knowledge of it. As Massetti was talking with McDaniels, Merritt began leaning forward and toward the console as well as manipulating his left front pocket, which appeared to have “something very bulky” in it. Concerned for his safety, Massetti asked if there were any weapons or drugs in the car. Bolton said he had a gun in the center console and ammunition in the glove compartment. Massetti and Biswurm, now joined by Dimitry and Brereton, then instructed all the occupants to exit the vehicle so they could be frisked for weapons. Although no guns were found on the occupants, Merritt was carrying a small knife attached to his belt. Two cell phones were found in Merritt’s left front pocket. When Massetti retrieved the gun from the console, he observed a small Zip-loc baggie sticking out of a small compartment to the left of the steering wheel and containing blue powder residue and a clear capsule. The residue field-tested positive for ecstasy (MDMA). Massetti recovered a .45 caliber semi-automatic handgun in the center console. In the glove compartment, he found the rounds belonging to the handgun “inside the magazine, so the magazine was ready to go.”7

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Merritt v. Commonwealth
704 S.E.2d 158 (Court of Appeals of Virginia, 2011)

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Bluebook (online)
704 S.E.2d 158, 57 Va. App. 542, 2011 Va. App. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merritt-v-commonwealth-vactapp-2011.