Rayquon Amod Stone v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 16, 2024
• Docket: 0241233
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Ortiz, Lorish and Senior Judge Petty Argued at Lexington, Virginia

RAYQUON AMOD STONE MEMORANDUM OPINION* BY v. Record No. 0241-23-3 JUDGE DANIEL E. ORTIZ APRIL 16, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Joseph W. Milam, Jr., Judge

James C. Martin (Martin & Martin Law Firm, on briefs), for appellant.

William K. Hamilton, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Following a jury trial, the trial court convicted Rayquon Amod Stone for conspiracy to

distribute a Schedule III drug and conspiracy to deliver drugs to an inmate of a correctional facility.

For each offense, the trial court sentenced Stone to six years of imprisonment with four years and

six months suspended. Stone argues that the trial court erred in finding that Charmaine Carter

(“Carter”) was unavailable as a witness, thus resulting in the erroneous admission of her

out-of-court statements. Stone also challenges the sufficiency of the evidence to sustain his

conspiracy convictions. Because Stone failed to properly preserve his argument in his first

assignment of error and there was indeed sufficient evidence to convict, we affirm the judgment of

the trial court.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,

73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In

doing so, we discard any of Stone’s conflicting evidence, and regard as true all credible evidence

favorable to the Commonwealth and all inferences that may reasonably be drawn from that

evidence. Gerald, 295 Va. at 473.

I. The Offenses

On March 25, 2020, the mailroom at Green Rock Correctional Institution received and

processed a parcel postmarked March 24, 2020, addressed to Justin Sproull—an inmate at the

facility. The mailroom staff immediately flagged an inconsistency between the post office’s zip

code—from which the package was mailed from—and the return address’s zip code. Inside the

package was an “Action Bible,” in which investigators found concealed suboxone strips. During

the investigation, Special Agent Matthew Bennett with the Virginia Department of Corrections and

Pittsylvania County Deputy Sheriff Arnold Hamlett reviewed recorded telephone calls that took

place at the facility between Carter and either Stone or Dante Carter (“Dante”). In February and

March 2020, Stone gave Carter instructions by phone to meet with a woman, providing the name

and phone number of Sproull’s mother. Stone told Carter to meet the woman at Walmart and to get

“fifty.” Stone instructed Carter to use a Bible and advised that it needed to appear “professional.”

During a conversation on March 23, 2020, Carter assured Stone that the package would look

official when it was opened. On March 24, 2020, the day the package was postmarked, Stone asked

Carter if she had done what she had planned to do that day, and she indicated that she was “doing it

now.” Two weeks after the package was confiscated, Stone told Carter he had not received the

package so Carter agreed to call the prison to inquire as to the package’s whereabouts. On April 14,

-2- 2020, Deputy Hamlett answered a phone call at the prison from a woman claiming to be associated

with a church that sent a Bible to the facility, asking if the Bible had arrived for Sproull. Because

Hamlett had reviewed a number of recorded phone calls between the suspected parties, he

recognized the voice as Carter’s—though she did not identify herself—and noted that the call

originated from her phone. During the call, there was a “beep” on the call from Carter’s end to

indicate she was receiving another call. Simultaneously, video from within the prison showed Stone

placing a phone call. Stone dialed the phone again, and Carter’s phone “beeped” for a second time.

After Hamlett’s call with Carter ended, he heard Stone come on the line and tell Carter that he had

just called her three times.

When the Commonwealth called Special Agent Bennett as a witness, the prosecutor asked if

he interviewed Carter by telephone. Without elaboration, Stone objected to Special Agent

Bennett’s testimony about the conversation on hearsay grounds. The Commonwealth asserted that

the statement qualified for admission under the statement against interest exception to the hearsay

rule. The trial court overruled the objection and permitted Special Agent Bennett to testify about his

conversations with Carter.

Special Agent Bennett testified that Carter admitted to mailing a Bible—purportedly from a

church group—to an individual at Green Rock. Carter said she bought the suboxone strips about a

week before purchasing the book. She recalled having phone conversations with both Stone and

Dante discussing “the packages, moving money, arguing about if the product actually made it in or

not[.]” In addition, Carter indicated that she and Dante had argued because Dante thought that Stone

“had cut him out and not given him his share of the strips when they got in.” When asked, Carter

said that Stone had suggested that she send the book with the drugs in it.

-3- In a phone call on May 11, 2020, Carter told Stone that she had talked to Special Agent

Bennett by phone about the “mail shit” and that the jail calls had been recorded. Stone advised

Carter not to talk to anyone who called her.

During an in-person conversation with Special Agent Bennett in early 2022, Carter

confirmed that she previously told him about “sending in the book, filling out the envelope, paying

cash for it and mailing it[.]” She remembered her “phone calls with everybody” about the package.

The Commonwealth argued that it had established a prima facie case of conspiracy to permit the

admission of statements by co-conspirators. Defense counsel stated that the Commonwealth had

failed to establish such a basis and objected “to any evidence being admitted pursuant to that.”

When the trial court asked where the Commonwealth’s proof had failed and if there was “anything

in particular that [he was] point[ing] to,” defense counsel responded “no.” The trial court concluded

that the Commonwealth had made a prima facie showing of conspiracy.

Dante testified that he pled guilty to one charge of conspiracy and would serve one year of

incarceration in return for the dismissal of a second charge against him. Dante said that he knew

that Stone was arranging to get drugs into the prison through Carter. Dante admitted to talking to

Carter by telephone daily, and he identified their voices in recordings of jail calls that the

Commonwealth played for the jury.

II. Carter’s Testimony

Outside the presence of the jury, the Commonwealth called Carter to the witness stand. The

Commonwealth had subpoenaed Carter as a witness but expected that she would invoke her Fifth

Amendment privilege against self-incrimination if questioned about telephone calls between her and

Stone as well as her and Dante.

Responding to questioning, Carter testified that Dante is her brother and he was incarcerated

at Green Rock with Stone, who was her boyfriend in 2020. Carter invoked her Fifth Amendment

-4- privilege when the Commonwealth asked if she had spoken to the police about her involvement in a

conspiracy and whether she and Stone attempted to distribute suboxone at Green Rock. She

admitted that she spoke to Stone on the phone while he was at Green Rock but denied that they

discussed a plan to mail suboxone into the facility. Carter again invoked her Fifth Amendment

privilege when the prosecutor asked if she spoke to Stone after a package with hidden suboxone was

intercepted at the prison. Defense counsel declined to cross-examine Carter.

The Commonwealth asked the trial court to declare Carter unavailable as a witness because

she had asserted her Fifth Amendment privilege against self-incrimination. The defense objected,

arguing that “[u]navailability is only established and certainly as it relates to the [C]onfrontation

[C]lause, can only be considered against the defendant’s interest if the defendant was somehow

responsibility [sic] for contributing to the witness’s unavailability.” Defense counsel further stated,

“[S]he’s not unavailable just because she asserts her Fifth Amendment” rights. The trial court

observed that the unavailability of a witness related only to the potential admission of hearsay

testimony, not the satisfaction of constitutional confrontation requirements. Defense counsel

responded, “[W]hat’s before this [c]ourt is insufficient for this particular witness to be declared

unavailable so that the Commonwealth can try to . . . admit . . . evidence that they would not

otherwise be able to admit but for the finding that this witness is unavailable.” When asked for

further comment, defense counsel said that “unavailability as it relates to the [C]onfrontation

[C]lause certainly has been established but as it relates to the hearsay rule [sic].” The trial court

interjected and disagreed with defense counsel, observing that Carter was in court and “available for

confrontation” and “that’s what confrontation is about.” Although defense counsel agreed with the

trial court’s observation, they stated, “certainly we are going to object to hearsay being . . . admitted

as a result of the finding that this witness is unavailable based on her asserting her Fifth Amendment

right.”

-5- The trial court concluded that Carter was “unavailable for purposes of hearsay” and noted

defendant’s ongoing objection solely to the issue of hearsay. The trial court concluded the

exchange on the issue: “[S]o if there’s something that needs to be brought to the attention of the

[c]ourt by way of an objection, other than this specific issue, that’s not going to be a continuing

objection.” Defense counsel agreed. The jury convicted Stone of two counts of conspiracy, and the

trial court imposed an active sentence of one year and six months of imprisonment for each offense.

This appeal followed.

ANALYSIS

I.

Stone’s first assignment of error alleges that “[t]he trial court erred in ruling Charmaine

Carter to be an unavailable witness when there had been insufficient questioning to make this

determination,” thus resulting in “the admission of her statements in violation of the hearsay

rule” and in “violation of the Confrontation Clause of the 6th Amendment . . . .” The

Commonwealth asserts that the “admission of Carter’s different statements presents distinct legal

issues,” and the assignment of error fails to distinguish them or adequately identify the claimed

trial court error. Furthermore, the Commonwealth argues that because of “Stone’s failure to

identify the specific statements he contends were erroneously admitted, and to correlate those

statements to what he asserts is the correct legal framework,” this Court is left to decide for

Stone “which legal arguments might apply to every statement.” Thus, the Commonwealth

maintains, this Court should not consider the assignment of error. We agree.

At the outset, we emphasize the important role of an assignment of error in defining the

issues this Court properly considers on appellate review. Rule 5A:20(c) requires an opening

brief to list “the specific errors in the rulings below[.]” “An assignment of error is not a mere

procedural hurdle an appellant must clear in order to proceed with the merits of an appeal.

-6- Assignments of error are the core of the appeal.” Forest Lakes Cmty. Ass’n v. United Land

Corp. of Am., 293 Va. 113, 122 (2017). “With the assignment of error, an appellant should ‘lay

his finger’ on the alleged misjudgment of the court below.” Stoltz v. Commonwealth, 297 Va.

529, 534 (2019) (quoting Forest Lakes Cmty. Ass’n, 293 Va. at 122). “The object of [an]

assignment of error is to point out the specific errors claimed to have been committed by the

court below,” thereby alerting the reviewing court and opposing counsel to the “points [upon

which] . . . counsel intends to ask a reversal of the judgment or decree, and to limit discussion to

those points.” Puckett v. Commonwealth, 134 Va. 574, 579 (1922) (quoting First Nat’l Bank of

Richmond v. William R. Trigg Co., 106 Va. 327, 341 (1907)). “A properly aimed assignment of

error must ‘point out’ the targeted error and not simply take ‘a shot into the flock’ of issues that

cluster around the litigation.” Forest Lakes Cmty. Ass’n, Inc., 293 Va. at 123 (quoting Plant

Lipford, Inc. v. E.W. Gates & Son Co., 141 Va. 325, 332 (1925)). For the following reasons, we

do not reach the merit of the cluster of claims that Stone attempts to assert within this one

assignment of error.

Stone asserts that the trial court erred in finding Carter to be an unavailable witness

“when there had been insufficient questioning to make this determination[.]” Thus, the

underlying premise of Stone’s claim is that the questioning of Carter was somehow deficient to

determine her availability as a witness. Stone did not raise this specific argument in the trial

court.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of th[e]

contemporaneous objection requirement [in Rule 5A:18] is to allow the trial court a fair

opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials.”

-7- Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015). “Specificity and timeliness undergird

the contemporaneous-objection rule, animate its highly practical purpose, and allow the rule to

resonate with simplicity.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “Not just any

objection will do. It must be both specific and timely — so that the trial judge would know the

particular point being made in time to do something about it.” Id. (emphasis omitted) (quoting

Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)). If a party fails to timely and

specifically object, he waives his argument on appeal. Arrington v. Commonwealth, 53 Va. App.

635, 641 (2009).

While Stone objected to the trial court’s finding that Carter was unavailable because she

invoked her privilege against self-incrimination, Stone only suggested that Carter was questioned

insufficiently by stating that “[w]hat’s before this [c]ourt” did not show that Carter was

unavailable. Stone, however, did not raise a specific and timely argument to the trial court that

more inquiry of Carter was required for the determination. Stone never asserted any deficiency in

the questions posed by the prosecutor or in Carter’s responses invoking her Fifth Amendment

privilege. On appeal, Stone vaguely suggests only that there should have been “more specific

questions”—such as “What did Stone tell you?”—before she could qualify as being “unavailable.”

Stone made no such claim at trial, nor does he now explain how such a question would determine

with certainty that Carter would continue to assert her Fifth Amendment right.1

1 “Allowing a witness to make a blanket assertion of the privilege is generally not permitted. Instead ‘[o]nce a witness asserts his fifth amendment right, some investigative questioning must be allowed.’” Palmer v. Commonwealth, 71 Va. App. 225, 234 n.4 (2019) (alteration in original) (quoting Cunningham v. Commonwealth, 2 Va. App. 358, 361 (1986)). While there may have been additional questions which Carter could have answered that would not have called for incriminating answers, “appellant did not seek to perform any ‘investigative questioning.’” Id. Rather, Stone’s counsel chose not to cross-examine Carter, relying on a largely general objection at trial. -8- In fact, Stone acknowledged at trial that Carter had the right to assert the Fifth Amendment

privilege to the potentially incriminating questions from the prosecutor. Crucially, Stone had the

opportunity to cross-examine Carter and pose the questions he believed probative to the issue, yet

he chose not to do so. See Green v. State, 679 S.E.2d 348, 355 (Ga. Ct. App. 2009) (“Hence, no

effort was made by defense counsel to ascertain whether Robinson would continue his refusal to

answer certain questions or would offer testimony in explanation of his [prior trial testimony] or in

exculpation of [Green]. Under these circumstances, Green was not denied the right of

confrontation, he simply did not exercise it, and he has waived any objection he may have had on

confrontation clause grounds.” (alterations in original)).

Accordingly, Stone failed to alert the trial court to the underlying claim he now raises—that

more questioning of Carter was required for a proper determination of her unavailability as a

witness. Thus, we consider this aspect of Stone’s argument waived.

Stone’s assignment of error also asserts, tangentially, that the trial court’s ruling on

Carter’s availability as a witness resulted in the erroneous admission of hearsay evidence. In

Stone’s argument, however, he fails to address that “[t]he law is firmly established in Virginia

that a declarant is unavailable [as a witness] if the declarant invokes the Fifth Amendment

privilege to remain silent.” Palmer v. Commonwealth, 71 Va. App. 225, 235 (2019) (quoting

Boney v. Commonwealth, 16 Va. App. 638, 643 (1993)).2 There is no question that Carter

invoked her Fifth Amendment privilege when asked questions relating to the conspiracy charges.

Stone does not claim that Carter had no legitimate reason to invoke the privilege; in fact, he

conceded as much in the trial court. See Bethea, 297 Va. at 753 n.9 (“A litigant cannot be

permitted to ‘approbate and reprobate’ by ‘disavow[ing] on appeal the very argument [he] made

2 Because Stone’s argument is waived under 5A:18, we need not reach the specific question regarding a witness’s unavailability status under the Fifth Amendment when he answers some questions and not others. -9- at trial’ because ‘a litigant may not take “successive positions in the course of litigation that are

either inconsistent with each other or mutually contradictory.”’” (alterations in original) (quoting

Babcock & Wilcox Co. v. Areva NP, Inc., 292 Va. 165, 204 (2016))). Indeed, Stone does not

argue that, assuming Carter was an unavailable witness, the hearsay exception for declarations

against penal interest did not otherwise apply to at least some of Carter’s statements. See Va. R.

Evid. 2:804(b)(3)(B); see also Warnick v. Commonwealth, 72 Va. App. 251, 271 (2020) (the

exception permits admission of testimony where the declarant is unavailable, the statement was

against his penal interest when he made it, the declarant knew the statement was against his

interest, and other evidence of the statement’s reliability connects him with the crime).

Rule 5A:20(e) requires an opening brief to contain “[t]he standard of review and the

argument (including principles of law and authorities) relating to each assignment of error.”

“Unsupported assertions of error ‘do not merit appellate consideration.’” Bartley v.

Commonwealth, 67 Va. App. 740, 744 (2017) (quoting Jones v. Commonwealth, 51 Va. App. 730,

734 (2008)). “We require adherence to this rule because ‘[a] court of review is entitled to have the

issues clearly defined and to be cited pertinent authority. The appellate court is not a depository in

which the appellant may dump the burden of argument and research.’” Id. (alteration in original)

(quoting Jones, 51 Va. App. at 734). “To ignore such a rule by addressing the case on the merits

would require this court to be an advocate for, as well as the judge of the correctness of,

[appellant’s] position on the issues he raises.” Id. (quoting Jones, 51 Va. App. at 734-35). Stone

failed to develop an argument that the finding of Carter’s unavailability led to the erroneous

admission of hearsay evidence, and we do not consider such a claim.3

3 We note that the determination of the unavailability of a witness—the ruling that Stone challenges here—is not a factor in the application of the hearsay exception for statements made by a co-conspirator in furtherance of a conspiracy. See Va. R. Evid. 2:803(0)(E). - 10 - Within his argument on brief, Stone maintains that the Commonwealth failed to prove a

prima facie case of conspiracy to allow the admission of the evidence under the hearsay

exception applying to a co-conspirator’s statements in furtherance of the conspiracy. As written,

however, the assignment of error fails to encompass any challenge to the Commonwealth’s proof

of a prima facie case of conspiracy. Thus, this Court will not consider any such argument. See

Banks v. Commonwealth, 67 Va. App. 273, 289-90 (2017) (“This Court is limited to reviewing

the assignment of error presented by the litigant . . . [and] do[es] not consider issues touched

upon by the appellant’s argument but not encompassed by his assignment of error.”).

Finally, Stone attempts to assert that the trial court’s ruling on Carter’s unavailability as a

witness resulted in the admission of evidence in violation of his rights under the Sixth

Amendment Confrontation Clause. During argument at trial, Stone initially conflated the

concept of unavailability for the purpose of hearsay with the satisfaction of his constitutional

right to confront the evidence against him, but then agreed with the trial court that the two issues

were distinct. The trial court clarified that it was declaring Carter unavailable only as it related

to any hearsay objection, not as implicating Stone’s right to confrontation. The trial court stated

that it would consider any such objections to testimony as they arose. Nonetheless, Stone never

subsequently raised any claim at trial that evidence was admitted in violation of his constitutional

right to confrontation. Therefore, Stone waived this claim, see Rule 5A:18.4

4 Although Stone attempts to invoke the ends of justice exception in his reply brief, he did not do so in his opening brief. “Rule 5A:20(e) requires that when an issue has not been preserved for appellate review, the opening brief shall state why the good cause and/or ends of justice exceptions to Rule 5A:18 are applicable.” Stokes v. Commonwealth, 61 Va. App. 388, 397 (2013) (emphasis added); see also Jeter v. Commonwealth, 44 Va. App. 733, 740-41 (2005) (holding that this Court will not address an argument raised for the first time in a reply brief). - 11 - II.

Stone lastly asserts that the evidence was insufficient to convict him of conspiracy to

distribute drugs to an inmate and conspiracy to distribute a Schedule III drug. He argues that the

evidence was “dismally insufficient, inherently incredible, and would not convince any

reasonable fact finder” because Dante’s testimony “was worthless” and Carter’s hearsay

statements should not have been admitted. Because we previously did away with his argument

against the admission of Carter’s statements, we need only address his assertions against Dante’s

testimony.

Although Stone attacks Dante’s testimony—determining it to be weak—“[t]he credibility

of the witnesses and the weight accorded the evidence are matters solely for the fact finder who

has the opportunity to see and hear that evidence as it is presented.” Elliott v. Commonwealth,

277 Va. 457, 462 (2009). Additionally, Dante’s testimony was not inherently incredible as to be

“so manifestly false that reasonable men ought not to believe it,” or “shown to be false by objects

or things as to the existence and meaning of which reasonable men should not differ.” Juniper v.

Commonwealth, 271 Va. 362, 415 (2006). Dante testified that Stone and he had an agreement to

bring suboxone into the prison, and he learned from Deputy Hamlett that his sister was involved

in getting drugs into Green Rock. This is not inherently incredible, and the jury—having seen

and heard Dante—had the ability to assess his credibility as a witness and weigh his testimony—

to which we defer. See Davis v. Commonwealth, 65 Va. App. 485, 500 (2015). In terms of the

other evidence presented by the Commonwealth; the recorded telephone calls between all parties

involved, the Bible containing suboxone strips, and Carter’s statements to Agent Bennett; all

support Stone’s conviction. Thus, the evidence was sufficient to convict Stone.

- 12 - CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

Affirmed.

- 13 -