Shurbaji v. Commonwealth

444 S.E.2d 549, 18 Va. App. 415, 10 Va. Law Rep. 1399, 1994 Va. App. LEXIS 325
CourtCourt of Appeals of Virginia
DecidedMay 24, 1994
DocketRecord No. 1168-92-4
StatusPublished
Cited by27 cases

This text of 444 S.E.2d 549 (Shurbaji 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
Shurbaji v. Commonwealth, 444 S.E.2d 549, 18 Va. App. 415, 10 Va. Law Rep. 1399, 1994 Va. App. LEXIS 325 (Va. Ct. App. 1994).

Opinions

Opinion

FITZPATRICK, J.

Haitham Shurbaji (appellant) was convicted by a jury of possession of cocaine with the intent to distribute. On appeal, he argues that the trial judge erred by: (1) admitting into evidence, over his hearsay objection, utility bills addressed to him; (2) admitting into evidence the contents of his safety deposit box on the basis that it constituted evidence of other crimes; (3) allowing expert testimony on an ultimate issue of fact; and (4) finding the evidence sufficient to convict. Finding no reversible error, we affirm the conviction.

BACKGROUND

On December 11, 1990, District of Columbia and Arlington County police officers executed a search warrant at 3027 South 18th Street in Arlington, Virginia. Appellant was not present in[417]*417side the home at the time of the search.

A search of the master bedroom revealed a bed, two nightstands, a dresser, a closet, and various articles of men’s clothing. While searching the nightstands, police found three plastic bags of cocaine weighing a total of eight grams with a purity of fifty-eight to sixty-four percent, plastic baggies, a bottle of the cutting agent Inositol, appellant’s United States and Syrian passports, and a wallet containing appellant’s credit cards and bank cards. The top of the dresser contained glassine bags with cocaine residue, $2,100 in United States currency, and a safety deposit box key inside a First American Bank envelope. Inside the dresser were a two-gram weight scale, razor, spoon, mirror flecked with cocaine, and glassine bags with additional cocaine residue. The lining of the top drawer was covered with cocaine residue. The closet contained a man’s sport coat with a prescription bottle bearing appellant’s name, a paper “snow-seal,”1 and .a briefcase with three bank checks bearing appellant’s name. Other personal papers including utility bills addressed to appellant were found in the master bedroom.

During the execution of the search warrant, marked Arlington County police vehicles and unmarked District of Columbia police vehicles were parked in front of the residence. The officers observed appellant approach the house in his car. As appellant began to turn into the driveway, he stopped, reversed, and drove quickly away from the house. A chase ensued for several city blocks, and appellant was arrested. A later search of the car revealed a portable cellular telephone and a telephone pager.

Police used the key found in the bedroom to enter appellant’s safety deposit box at First American Bank. The box was registered exclusively to appellant, and the sign-out card showed the same signature as the three bank checks taken from the briefcase in the master bedroom closet. Cocaine residue was discovered in the safety deposit box.

At trial, appellant presented evidence that he shared an apartment with his girlfriend at a different location and that he did not live at the searched residence. However, during the month prior to [418]*418the execution of the search warrant, the police maintained surveillance on the house and, on several nights, observed appellant drive into the driveway at midnight or 1:00 a.m. and remain in the residence throughout the night.

Detective Paul Cope of the Arlington County Police Department was qualified as an expert in narcotics investigation and testified about the uses of drug paraphernalia and the value of drug substances. The trial judge sua sponte instructed the jury on the proper use of expert testimony.

UTILITY BILLS ADDRESSED TO THE ACCUSED

Appellant argues that the trial court erred by admitting into evidence utility bills addressed to him found in the master bedroom where the cocaine was located. Appellant contends that these documents constitute written hearsay and, because the Commonwealth was not prepared to lay a business records foundation, the documents were inadmissible. We disagree.

To constitute hearsay the documents must be “written evidence!] of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977) (emphasis added) (citations omitted). The challenged documents in this case were not offered for the truth of the matter asserted therein. The utility bills were used as circumstantial evidence that appellant received or stored his property, including his correspondence, in the master bedroom. It was irrelevant what the utility bills “asserted therein.” Rather, the mere existence of the bills in the master bedroom tended to prove that appellant controlled the room, and that the cocaine and paraphernalia found there belonged to him. See United States v. Hazeltine, 444 F.2d 1382, 1384 (10th Cir. 1971) (envelope bearing inmate’s name and address was not hearsay and properly admissible, without authentication, to establish that cell and locker in which heroin was seized were the inmate’s cell and locker); United States v. Snow, 517 F.2d 441, 443 (9th Cir. 1975) (label bearing accused’s name affixed to gun case was not hearsay and constituted an admissible evidentiary fact); see also McCormick on Evidence § 250 (John William Strong ed., 4th ed. 1992). Accordingly, the bills were not hearsay and were properly admitted [419]*419into evidence.

EVIDENCE OF OTHER CRIMES

Next, appellant argues that the trial court erred in admitting evidence concerning cocaine residue found in his safety deposit box at a local bank. In Virginia, the general rule, subject to certain exceptions, is that where an accused is on trial “for a specific offense[,] it is usually improper to admit evidence against him of a prior independent crime.” Roy v. Commonwealth, 191 Va. 722, 726, 62 S.E.2d 902, 903 (1951). Here, the Commonwealth presented evidence that two days after the search of appellant’s residence, police officers, using the key found during the search of the master bedroom, searched appellant’s safety deposit box and discovered cocaine residue.

At trial, appellant introduced evidence to support his theory that he did not own or possess the cocaine found in the master bedroom. Accordingly, evidence that the key found on the top of the master bedroom dresser, near bags containing cocaine residue and $2,100 cash, corresponded to a safety deposit box registered to and exclusively used by appellant, was clearly admissible. In addition, Commonwealth’s exhibit number 9, the bank’s registration card, was admissible because it proved that appellant was the only person who requested access to the box and that he had opened the box as recently as November 30, 1990, eleven days prior to the execution of the search warrant on the residence.

The error, if any, relates only to the testimony that cocaine residue was found inside the box.

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Bluebook (online)
444 S.E.2d 549, 18 Va. App. 415, 10 Va. Law Rep. 1399, 1994 Va. App. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shurbaji-v-commonwealth-vactapp-1994.