Moorman v. Commonwealth

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DWAYNE LAMONT MOORMAN v. COMMONWEALTH OF VIRGINIA

No. 1182-23-3

Court of Appeals of Virginia

October 8, 2024

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG J. Frederick Watson, Judge

Meghan Shapiro, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Allison Mentch, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Judges O'Brien, Ortiz and Senior Judge Humphreys Argued at Lexington, Virginia

MEMORANDUM OPINION ^[*]

ROBERT J. HUMPHREYS JUDGE

Dwayne Moorman appeals his convictions of possession with intent to distribute a Schedule I or II controlled substance, in violation of Code § 18.2-248; possession of a firearm while possessing with intent to distribute a Schedule I or II controlled substance, in violation of Code § 18.2-308.4; and possession of a firearm by a convicted violent felon, in violation of Code § 18.2-308.2. He argues that the trial court erred by: (1) denying his Batson^[1] motion, (2) denying his motion to dismiss the indictments on speedy trial grounds, (3) denying his motion to strike the evidence as insufficient to support his convictions, (4) denying his own proposed jury instruction about constructive possession, and (5) including a typographical error misstating the law on constructive possession in a jury instruction. Finding no error, we affirm.

BACKGROUND^[2]

In October 2021, Moorman and his girlfriend, Jennifer Branch lived with their two children in Lynchburg, Virginia. Their two-story residence consisted of an upper level with a living room, two bedrooms for the children, and a bathroom; and a lower level with a second living room, Moorman and Branch's bedroom, the laundry room, and the kitchen. On October 4, 2021, Branch was upstairs when she heard "rumbling" coming from Moorman's bedroom and called the police. As Lynchburg Police Officer Rowland approached the house, Moorman exited through the front door and exclaimed, "I've been shot. Somebody broke into my house. I need an ambulance. . . . Somebody broke into my back door." Moorman confirmed to Officer Rowland that he lived at the house. When Officer Rowland and other officers conducted a protective sweep of the residence, they saw green plant material, suspected hash oil, and drug packaging materials in Moorman's bedroom.

Moorman told Lynchburg Police Detective Dubie that he had awoken to see someone standing in his room holding a gun and wearing a ski mask. Moorman claimed that he struggled with the intruder before forcing him from the bedroom. The intruder then fired through the bedroom door, striking Moorman before fleeing.

Detectives secured a search warrant for Moorman's residence. Detectives Dubie and Booth searched the house while Detective Shumate collected and packaged evidence. Detective Shumate wore gloves and shoe covers inside the residence. She testified that she changed gloves after touching each item of evidence. She did not place any items on a surface bearing a blood stain. Detective Dubie confirmed that everyone searching the residence wore gloves and that he changed gloves each time he touched "something messy like blood."

Downstairs, police found four cartridge casings in the kitchen and ammunition, a magazine, and a rifle in the laundry room. On the floor in front of the washer and dryer, they discovered a backpack containing four firearms-a Charter Arms revolver, a Glock pistol, a Sig Sauer pistol, and a Smith & Wesson handgun. Also inside the backpack were two plastic baggies containing 139.43 grams and 13.87 grams of cocaine. Detective Shumate collected a DNA swab sample from the Smith & Wesson. Forensic testing showed that Moorman could not be excluded as a major contributor to the DNA recovered from the pistol, and the likelihood that another individual contributed the DNA was one in greater than 7.2 billion. Police also found "[a] large sum of cash" in varying denominations, two scales, and packing materials in Moorman's bedroom. A white powder, consistent with cocaine residue, was on Moorman's dresser, the bedroom floor, and the two scales.

Police arrested Moorman on March 11, 2022, and he was held in custody. The Lynchburg General District Court certified his charges to the grand jury on May 4, 2022, which returned indictments against Moorman on June 6, 2022. A jury trial was scheduled for September 27, 2022.

On August 10, 2022, Moorman moved to suppress evidence, and the following day the Commonwealth filed a "Request to Dismiss Motion to Suppress or Request for a Bill of Particulars." On August 30, 2022, the trial court granted Moorman leave to file an amended motion to suppress, which he filed on September 12, 2022, along with a motion for a Franks^[3]hearing. The Commonwealth filed responsive pleadings on September 19, 2022. The following day, Moorman moved to set a hearing.

On September 21, 2022, the trial court held a hearing on Moorman's request to schedule a suppression hearing. The Commonwealth told the court that Sergeant Claytor, Detective Dubie, Officer Bryan, and Officer Rowland were necessary witnesses for the suppression hearing and were not all available on the same day before the September 27, 2022 trial date. Moorman stated that "he d[id] not want to agree to a continuance because he [wa]s being held in custody and he want[ed] to have his trial date." The trial court found that it was "not possible to have a suppression hearing based on various circumstances involving the officers that are required to be here" so "a delay of the trial date" was necessary "because we just don't have time." The trial court further found that the "delay [wa]s caused by the motions" Moorman had filed. The trial court continued the case to the next docket call so counsel could select new dates for the suppression hearing and trial. The court held that the speedy trial deadline was tolled from September 12, 2022-the date Moorman filed his amended motion to suppress-until the trial court ruled on his motion.

At the October 3, 2022 docket call, the parties scheduled the suppression hearing for December 30, 2022, and the trial for January 10, 2023. The written orders stated that the continuance was made "[o]n motion of the defendant, by counsel, and with the concurrence of the Commonwealth." The trial court subsequently denied Moorman's motion to suppress.

During voir dire, Moorman asked the prospective jurors whether there was anything that would affect their ability to hear the case. Juror K.T. replied:

I look at this young man and that could be my son and, you know, I'm not saying I'm biased but, you know, I want to be here and fight for him like he's my son so I don't know does that mean bias or just being -- I look at it as being fair.

Moorman asked whether K.T. could still be fair, and she replied, "Absolutely, yes." The Commonwealth later exercised all four of its peremptory strikes to remove African-American women from the venire, and Moorman raised a Batson objection. One of those peremptory strikes was against K.T. The Commonwealth stated that it struck K.T. because of "her comment that she looks at [Moorman] as her son and wants to fight for him like he's her son." Moorman countered that the Commonwealth's stated reason was not race-neutral:

I would suggest that that's the very nature of the argument, the idea that because she's African American and she can see my client, who's African American, in that -- in that same kind of -- as someone who's like her is the very nature of . . . I mean, just that the concern was that she also spoke about -- that she talked about her that she could be his mother.

The trial court found that "a race neutral explanation has been offered" based on the statement K.T. made about "fighting for [Moorman]," and overruled the objection.

After the Commonwealth rested, Moorman moved to strike the evidence. He argued that there was no connection between him and the firearms and cocaine and that his "mere proximity in the house" did not prove he possessed the contraband. He also argued that the officers transferred his DNA to the firearm while collecting evidence. The trial court denied the motion to strike.

Moorman presented evidence and then renewed his motion to strike. Moorman argued that there was "insufficient evidence as a matter of law that the items in the laundry room were in any way known by or possessed by" him. He further argued that the Commonwealth had failed to prove that any of the recovered guns met the statutory definition of a firearm because there was no evidence that the Commonwealth had tested the weapons. The trial court denied the renewed motion to strike.

The parties agreed to Jury Instruction J, which stated:

To knowingly and intentionally possess a controlled substance means that a person is aware of the presence and character of the substance and has actual physical possession or constructive possession. Actual physical possession means that the substance is found on the person. Constructive possession means that the person has dominion and control over the substance. Mere proximity is not enough.

Possession need not be exclusive; it may be shared with another. The length of time of the possession is not material.

Ownership or occupancy of the premises in which a controlled substance is found does not create a presumption that the owner or occupant either knowingly or intentionally possessed such substance. Such ownership or occupancy is a fact which may be considered with other evidence.

Possession may be proved by acts, declarations or conduct of Mr. Moorman from which it may be fairly inferred that he was aware of the presence and character of the substance at the place found.

Moorman also proffered Jury Instruction K, which...