Bennett v. Commonwealth

69 Va.App. 475

820 S.E.2d 390

Mitchell Larnell BENNETT

v.COMMONWEALTH of Virginia

Record No. 1200-17-3

Court of Appeals of Virginia, Salem.

NOVEMBER 20, 2018

Gregory W. Smith, Madison Heights, for appellant.

Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Beales and Decker

OPINION BY JUDGE MARLA GRAFF DECKER

Mitchell Larnell Bennett appeals his conviction for drug distribution, a third or subsequent offense, in violation of Code § 18.2-248. He contends that the admission of video and audio recordings reflecting the drug sale violated his constitutional right of confrontation. He also challenges the sufficiency of the evidence to prove that he was the seller of the illegal drugs. We hold that admission of the recordings did not violate his constitutional right to confront the witnesses against him. We further conclude that the evidence proves the charged offense. Consequently, we affirm the conviction.

I. BACKGROUND¹

The challenged conviction arises out of a controlled purchase of illegal drugs made by an informant on April 28, 2016. The informant died prior to the appellant’s trial. Subsequent to the informant’s death, the appellant made a motion to exclude video and audio recordings depicting the controlled purchase, as well as photographs made from the video. The court heard evidence and argument on the motion and denied it.² After taking additional evidence, the court found the appellant guilty.

A. Testimony Regarding the Controlled Purchase

Investigators Brandon Hurt, Jason Staton, and James Begley of the Amherst County Sheriff’s Office oversaw the controlled purchase. The investigators used a "live" audio feed, which they monitored as the sale occurred. They also made separate audio and video recordings of the transaction, which they were able to review only afterward. All three investigators knew the appellant personally and identified his voice on the audio feed and audio recording. Investigators Hurt and Staton also identified the appellant in the video and photographs made from the video. Additionally, Investigator Begley had known the informant for several years and was "[v]ery familiar" with his "prior work" with law enforcement.

Immediately before the transaction, Investigators Hurt and Staton searched the informant, his cigarette pack, and his motorcycle, and found no contraband. The investigators then equipped him with an audio and video recording device, which was "essentially ... a cell phone." They listened as the informant made a telephone call in which he spoke to the appellant.

Investigator Hurt confirmed that during the phone conversation between the appellant and the informant, the informant made "reference" to "two funny sticks." Hurt, a narcotics investigator familiar with "lingo" in "the drug trade," explained that this term "referr[ed] to tobacco cigarettes dipped in PCP." He testified further that the informant also mentioned "the whole 3.5," which, in context, meant "an eight ball or three and a half grams of crack cocaine." The investigator indicated that based on the conversation, these were the items that he expected the informant to purchase from the appellant. When the phone call ended, Hurt gave the informant $270 with which to buy the drugs.

The informant then rode his motorcycle to a second location. The investigators followed him and confirmed visually that he did not "stop anywhere or do anything" on the way. From the new location, the informant engaged in a second telephone conversation, in which the appellant told the informant where to meet him. The officers followed the informant to the specified location, maintaining visual surveillance until he drove into an apartment complex.

Hurt activated the video recording device remotely. The investigators positioned themselves at the sole entrance and exit to the apartment complex and continued to monitor the live audio feed. Once they heard the informant’s motorcycle stop, they noted the informant’s and appellant’s voices on the audio feed, as well as other unidentified voices.

When Investigator Hurt heard the informant leaving the apartment complex, he remotely stopped the video recording. The investigators then followed the informant to another location, where they took possession of the recording device and two plastic bags containing suspected illegal drugs. The informant also returned $40 to Hurt because he obtained less cocaine than he had sought. After the informant handed over these items, Staton searched him and his motorcycle and found no other drugs or money.

B. Silent Video Recording of the Drug Transaction

The video recording depicting the in-person transaction was played for the trial court at the motion hearing.³ It depicts the inside of a residence. A working television is visible as it displays a person moving on the screen. The video further shows the informant encountering two different people inside the residence. Fleetingly at the beginning of the video, a woman is visible in the living room. Thereafter, only two men are visible throughout the remainder of the video—the informant and a second man, identified by two of the investigators as the appellant. The video and some of the photographs include the appellant’s face and show him holding at least one plastic sandwich bag and two slightly discolored cigarettes.

C. Audio Recording of the Telephone Calls and Drug Transaction

The audio recording, which encompasses two telephone calls between the appellant and the informant as well as the subsequent in-person transaction, was also played for the trial court at the motion hearing.

In the first conversation, the informant tells the appellant that he has "money now" and "want[s] two of them funny sticks" and "a whole three and a half." The appellant responds, "O.k.," to each of the two specific requests for drugs and concludes with, "I gotcha." The two then discuss where to meet. The appellant instructs the informant to give him five to ten minutes, after which the appellant says he will tell the informant where to go. In a second conversation, the appellant says something unintelligible, and the informant responds, "Alright, I’ll be right there." The informant then tells the investigators where he is going.

Following the sound of a motorcycle, the informant can be heard in the next portion of the audio greeting another person whose voice the investigators identified as the appellant’s.

Additional voices or other noises can be heard in the background but not in a way that clearly indicates either any interaction with the informant or appellant, or the presence of people other than as heard through a television. Only portions of the recording of the approximately five-minute exchange are intelligible. Most of what is intelligible appears to be in the informant’s voice. The majority of the appellant’s comments are indecipherable or not particularly relevant without their full context. The informant’s motorcycle can then be heard again.

D. Admission of the Silent Video and Audio Recordings

The appellant argued to the trial court that the silent video recording and separate audio recording contained testimonial hearsay because they included hearsay "statements" and were prepared in anticipation of trial. He contended that his rights were violated by their admission because the informant was unavailable and, consequently, he could not dispute their contents, particularly "the blank spaces" in the video, without giving up his right not to testify. He did not otherwise distinguish any particular statements or portions of the video or audio that he contended were testimonial hearsay. The appellant acknowledged that the investigators could "testify to what they saw" and "the statements that they heard from the [appellant]" but argued that "everything else," including "any statements made to [the investigators] by the [informant, were] hearsay." He rejected the notion that the informant’s statements were not offered for their truth. In sum, he argued that the video and audio recordings should be excluded in their entirety. He did not object to testimony about what the officers heard over the live audio feed.

The prosecutor responded that the silent video recording did not contain testimonial hearsay. He argued that the appellant’s statements on the audio recording were admissible and that the informant’s statements were relevant to show "how [the appellant] react[ed] to what the informant [said]" rather than for their truth. The prosecutor further contended that the "entire arc" of conversations was offered to prove that a transaction occurred between the informant and the appellant and that "no evidence [indicated that] the informant interact[ed] with other people" who "might have given [him] the drugs instead of [the appellant]."

The judge ruled that the silent video recording was not testimonial and, thus, that its admission did not violate the Confrontation Clause. In doing so, he noted that the appellant’s argument regarding the blank spaces in the video "[went] to the weight not the admissibility." With regard to the challenged audio, he ruled that the verbal exchanges between the two men also were not testimonial because neither party was "offering testimony about any events" and it was merely "a record of their interaction."

E. Trial and Sufficiency Arguments

At the request of the parties, the court adopted the evidence presented at the motion hearing as part of the trial evidence. The Commonwealth introduced additional evidence regarding the transaction between the appellant and the informant, including evidence about the contents of the two plastic sandwich bags that the informant turned over to the police following the controlled buy. That evidence established that one of the bags contained cocaine and the other contained two discolored tobacco cigarettes laced with phencyclidine, also known as PCP.

The appellant made a motion to strike...