Willie Haywood Jackson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 4, 2003
• Docket: 0113022
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Clements Argued at Richmond, Virginia

WILLIE HAYWOOD JACKSON MEMORANDUM OPINION ∗ BY v. Record No. 0113-02-2 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 4, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL James A. Luke, Judge

Mary K. Martin (Eliades & Eliades, on brief), for appellant.

Linwood T. Wells, Jr., Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Willie Haywood Jackson, appellant, was convicted in a bench

trial of four counts of distribution of cocaine. On appeal, he

contends the trial court erred in finding the evidence

sufficient to prove his guilt beyond a reasonable doubt. For

the reasons that follow, we affirm the decision of the trial

court.

Background

On appeal, 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. Goodman

∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. v. Commonwealth, 37 Va. App. 374, 386, 558 S.E.2d 555, 561

(2002). So viewed, the evidence establishes that Lynn Metosh

was a paid, confidential informant working with members of the

Multi-Jurisdictional Task Force in the City of Hopewell. She

was not available to testify at trial because she died before

the matter was heard. Evidence delineating her role in making

the "buys" was introduced by the trial testimony of Detectives

Jeff Clark, Michael Walls and Ralph Burton, Special Agent Steve

Irwin and Officer Michael Whittington. Their testimony

established the completion of four "buys" of crack cocaine on

four separate occasions, August 9, August 14, August 15 and

November 14, 2000.

On August 9, 2000, Metosh and her boyfriend, Phillip, met

with Officer Whittington. Whittington searched Metosh, Phillip

and Phillip's car, and found no contraband. He gave Metosh $100

of Virginia State Police funds. Metosh telephoned Jackson and

arranged to meet him in the parking lot of the S & N market.

She and Phillip drove to the market in his car, and Whittington

followed them. Whittington testified that he never lost sight

of Phillip's car and that Metosh and Phillip made no stops en

route to the market. Upon arrival at the market, Whittington

identified Jackson in a green pickup truck. He saw Metosh exit

Phillip's car and enter the pickup truck, where he kept her

under surveillance while the "buy" was being made. When Metosh

- 2 - exited the truck, she returned to Phillip's car and they drove

from the market. Whittington followed Phillip's car to a

pre-arranged meeting place where Metosh gave Whittington a

plastic baggie, which contained a substance later determined to

be crack cocaine. Whittington did not detect any body fluids or

fecal matter on the outside of the baggie.

Metosh conducted two more "buys" of crack cocaine under the

supervision of Whittington, on August 14 and 15, 2000. On

August 14, 2000, Metosh and Phillip met with Whittington.

Metosh called the same telephone number at which she had

previously reached Jackson to arrange a "buy." Before leaving

for the market, she and Phillip were searched, she was given

Virginia State Police funds and Whittington followed her to the

market. When Whittington arrived at the S & N market, he

identified Jackson walking in front of the market. A few

minutes later, Whittington observed Metosh exit her car, walk

over to and enter a "large car, like a Lincoln or Towncar type

car." Detective Ralph Burton, who was assigned to the Virginia

Narcotics Task Force and was conducting surveillance at the

market on August 14, 2000, also observed a green Lincoln Towncar

in the parking lot facing the market and observed Metosh enter

the Lincoln, exit and walk away. Neither Whittington nor Burton

was able to see or identify the driver of the car as Jackson.

Metosh and Phillip drove to another location, where Whittington

met them and retrieved from Metosh a cellophane baggie that - 3 - contained 14 separate packages of off-white material.

Whittington did not detect any body fluids or fecal matter on

the outside of the baggie.

On August 15, 2000, Whittington followed essentially the

same procedures as he did on August 9, 2000. He met with

Metosh, who then telephoned the same number she used to initiate

the "buys" on August 9 and August 14. Whittington searched

Metosh, Phillip and Phillip's car, and found no drugs or other

contraband. He gave Metosh Virginia State Police funds, and she

proceeded to the market with Phillip in Phillip's car.

Whittington followed them to the market, and they made no stops

en route. When Whittington arrived at the S & N market, Jackson

had not yet arrived. Metosh placed another telephone call to

the number she called earlier. Approximately ten minutes later,

a green pickup truck drove into the parking lot. Whittington

identified Jackson as the driver of the pickup truck. He

observed Metosh exit Phillip's car, enter a green pickup truck

driven by Jackson and emerge with a plastic baggie that

contained a substance later determined to be crack cocaine.

Whittington did not detect any body fluids or fecal matter on

On August 9, August 14 and August 15, 2000, Whittington

searched Metosh, Phillip and Phillip's car before the "buy."

Whittington had Metosh unhook her bra and shake it to ensure she

was not hiding contraband in the bra. He also had her unbutton - 4 - her pants, and he checked her socks and pockets for contraband.

Whittington and at least one other officer searched Phillip's

car before the "buys." In addition, he thoroughly searched

Metosh and Phillip after each "buy."

The final "buy" that Metosh initiated and completed took

place on November 14, 2000. Metosh telephoned the same number

she called on the three previous occasions and arranged a "buy"

at the S & N market. Before going to the market, Metosh met

with Detectives Walls and Clark. Walls searched her person,

lifting her clothing and checking her shoes and pockets, and did

not find any contraband. Clark drove Metosh to the market. On

that day, Jackson was seen by Special Agent Irwin leaving his

house and entering a green pickup truck parked in the driveway.

Irwin followed Jackson to the S & N market. Under police

surveillance, Metosh walked to and entered a green pickup truck

at the market, and completed the "buy." When Metosh returned to

Clark's car, she handed him a baggie containing a substance

later determined to be crack cocaine. No body fluids or fecal

matter were detected on the outside of the baggie. Walls

identified Jackson as the driver of the truck.

On November 21, 2000, Walls went to Jackson's home to

execute a search warrant. Walls observed Jackson pull into his

driveway driving a green Lincoln Towncar. Walls advised him of

his Miranda rights and testified that "Mr. Jackson stated I

would find a package of crack cocaine behind the passenger's - 5 - side of his Lincoln parked in the driveway." Jackson admitted

he sold drugs, stating he bought half- or quarter-ounce blocks

of cocaine, which he sold for $50 per rock. He also informed

Walls that he had a set of scales for weighing drugs.

Analysis

Jackson contends on appeal that the evidence is

insufficient to sustain his convictions because Metosh did not

testify at trial and the police failed to conduct a body cavity

search of Metosh before each of the "buys" was made. He argues

that, in the absence of Metosh's direct testimony that Jackson

sold her cocaine in exchange for money, and the absence of a

body cavity search, the circumstantial evidence of Jackson's

guilt upon which the Commonwealth relied rises no higher than

mere suspicion. We disagree.

When the sufficiency of the evidence is challenged on

appeal, we view the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom. Goodman, 37 Va. App. at 386, 558 S.E.2d at

561. We accordingly discard all evidence of the defendant that

conflicts with the Commonwealth's evidence and regard as true

all credible evidence favorable to the Commonwealth. Norman v.

Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986).

The court must "look to that evidence which tends to support the

verdict and to permit the verdict to stand unless plainly

wrong." George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d - 6 - 12, 20 (1991). "Circumstantial evidence is as competent and is

entitled to as much weight as direct evidence, provided it is

sufficiently convincing to exclude every reasonable hypothesis

except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53,

307 S.E.2d 864, 876 (1983). "While a conviction may properly be

based on circumstantial evidence, suspicion or even probability

of guilt is not sufficient. There must be an unbroken chain of

circumstances 'proving the guilt of the accused to the exclusion

of any rational hypotheses and to a moral certainty.'" Gordon

v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971)

(quoting Brown v. Commonwealth, 211 Va. 252, 255, 176 S.E.2d

813, 815 (1970)) (additional citations and quotations omitted).

However, "[t]he Commonwealth need only exclude reasonable

hypotheses that flow from the evidence, not those that spring

from the imagination of the defendant." Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

Based on the testimony of two officers and three detectives

who participated in arranging and monitoring the "buys," the

evidence shows that Metosh had no opportunity to purchase or

obtain the cocaine from someone other than Jackson. Metosh

initiated each "buy" by calling the same telephone number to

arrange the transaction. On each occasion that Metosh conducted

a "buy," she was searched by the police prior to meeting with

Jackson and was not carrying drugs on her person. On the

occasions Metosh went to the market in her boyfriend Phillip's - 7 - car, August 9, August 14 and August 15, Metosh, Phillip and

Phillip's car were searched before and after the buy. In

transacting each of the four "buys," Metosh either was

accompanied to and from the market by a detective or she was

followed to the market by the police. After Metosh gave to the

police the baggies of cocaine she bought from Jackson, their

exterior evidenced no body fluids or fecal matter that would

have suggested she was hiding drugs in a body cavity. Finally,

on three occasions, August 9, August 15, and November 14, 2000,

the officers observed Metosh in a pickup truck with Jackson and

watched as she exited the truck and returned to the car in which

she arrived. On August 14, 2000, Jackson was not identified as

the driver of the vehicle Metosh entered to make the "buy."

However, on that date, Metosh called the same telephone number

she had used on previous occasions to initiate the "buys" from

Jackson and the police observed Jackson on the premises of the

market just prior to the time set for the "buy." They also

observed Metosh enter a "green," "large car, like a Lincoln or

Towncar type car" to conduct the buy. Moreover, on November 21,

2000, the police saw Jackson arrive at his residence in a green

Lincoln Towncar where, as indicated by Jackson, they found

cocaine in his car and a set of scales for weighing drugs.

Jackson also admitted that he was engaged in selling drugs.

Based on this evidence, the trial court could reasonably

infer that Jackson was the driver of the Lincoln on August 14, - 8 - 2000 and that he sold cocaine to Metosh on that date as well.

"Inferences . . . are elemental ingredients of the fact finding

process." Morton v. Commonwealth, 13 Va. App. 6, 9, 408 S.E.2d

583, 584 (1991). "An inference . . . permits a finder of fact

to conclude the existence of one fact from the proof of one or

more other facts." Id.

Jackson contends that the absence of Metosh's testimony at

trial and the failure of the police to conduct a body cavity

search before she made the "buys" is fatal to the Commonwealth's

case. We disagree. "Circumstantial evidence is as competent

and is entitled to as much weight as direct evidence, provided

it is sufficiently convincing to exclude every reasonable

hypothesis except that of guilt." Coleman, 226 Va. at 53, 307

S.E.2d at 876. We find the evidence, although circumstantial,

supports the trial court's finding that Metosh purchased cocaine

from Jackson on the four occasions at issue and that the

evidence excludes all other reasonable hypotheses.

We find no error and affirm.

Affirmed.

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