Tyler v. Commonwealth

JAMES MILTON TYLER, JR. v. COMMONWEALTH OF VIRGINIA

No. 0219-22-2

Court of Appeals of Virginia

February 21, 2023

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson Judge

Robert M. Lorey (Law Office of Robert M. Lorey, LLC, on briefs), for appellant.

Lucille M. Wall, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.

Present: Judges Athey, Chaney and Lorish Argued at Richmond, Virginia

MEMORANDUM OPINION ^[*]

LISA M. LORISH, JUDGE

James Milton Tyler argues that the trial court erred by allowing the Commonwealth's expert to testify about matters not disclosed in advance under Rule 3A:11(b)(4)(A). Because the testimony was admissible under Rule 3A:11(b)(4)(B) and Tyler failed to show how he was prejudiced by the lack of advanced disclosure, we affirm the trial court's decision to admit the testimony. We also conclude that this expert testimony, combined with the other evidence in the case, was sufficient to prove Tyler possessed the narcotics found in his vehicle.

BACKGROUND

We recite all facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). As a result, we "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 323-24 (2018)).

Officer P. Howard checked the license plate of a silver Jaguar traveling in the lane ahead of his marked patrol car, discovering the plate had expired and that the registered owner was "not licensed." Before Officer Howard could signal the Jaguar to stop, it "darted in front of another vehicle, causing that vehicle . . . to slam on [the] brakes to avoid a collision."

Officer Howard stopped the Jaguar. Wearing a body camera, he approached the driver's door, and Tyler rolled down the window. A woman, later identified as Courtney Smith, was in the front passenger seat and an unidentified man was in the back seat. When Officer Howard asked Tyler for his license and registration, Tyler replied that he did not have his license because "they messed up on it." He then reached over and opened the glovebox to retrieve his vehicle's registration. Body camera footage from Officer Shupp, assisting Officer Howard, shows a green "Newport" cigarette package in the corner of the glovebox closest to Tyler when he opened the glovebox. While Tyler fumbled with the documents over the steering wheel, Smith quickly closed the glovebox.

While the officers determined that Tyler was a habitual offender, but that Smith could drive, Smith folded her sweater in her lap and opened the glovebox again. Smith's hands were visible in the body camera footage and she did not move toward the glovebox after opening it. Officer Howard instructed Tyler to remain in the vehicle, closed the driver's door, and returned to his patrol car with Tyler's registration.

After checking Tyler's registration, Officer Howard returned to the car, removed Tyler, and arrested him for felony driving after being declared a habitual offender. When Tyler opened the driver's door, the glovebox was closed again. Officer Howard asked Tyler about a plastic baggy he saw in the door compartment that he testified was "consistent [in appearance] with drug use." Although Tyler was handcuffed, he picked up the baggy saying nothing was in it while "crinkling and dumping" a brown powder onto the pavement.

Suspecting the brown powder was narcotics, Officer Howard asked both passengers to leave the car. After spying a revolver in the unidentified male's waistband, he was searched, and the officers found a dollar bill containing brown powder residue. Officer Howard then searched the car.

The officers found a gun in a purse on the front passenger floorboard, and over 60 unused lottery "play slips" in the front passenger door. Inside the Newport cigarette package from the glovebox was a dark, opaque bag with a brown, powdery substance inside. In the center console, Officer Howard found a "folded up lottery ticket with brown powder residue" and a "small plastic baggy with brown powder in it." Subsequent forensic tests determined that the Newport package contained 17.3442 grams of heroin and the folded dollar bill held heroin residue.

Smith told Officer Shupp that Tyler had given her the gun and had instructed her to put it in her purse. She also admitted that there was heroin in a needle in her purse but she denied handling the cigarette package, stating that she was "lighting a cigarette."

At a bench trial, Detective Necolettos, an expert in drug distribution, opined that the amount of heroin in the Newport package was inconsistent with personal use. He based this opinion on the quantity of heroin, the 60 unused lottery play slips, and the torn lottery play slip in the passenger door. Detective Necolettos explained that torn lottery play slips were commonly used to distribute heroin and also observed that there was a "high correlation" between firearms and drug trafficking. Tyler objected to Detective Necolettos's testimony about the lottery ticket slips, arguing that it exceeded the scope of the Commonwealth's pre-trial expert designation which stated simply: "The Commonwealth expects Detective Necolettos to testify that the amount of drugs seized is inconsistent with personal use." The trial court overruled Tyler's objection. On cross-examination, Detective Necolettos admitted he had not reviewed the body camera footage or police report before the Commonwealth filed its expert designation, but had only known about the quantity of drugs before trial and otherwise was basing his opinion on the evidence introduced at trial.

At the close of evidence, the court convicted Tyler of possessing a Schedule I or II controlled substance with the intent to distribute, second offense. Before sentencing, Tyler moved to set aside the verdict, asserting that the evidence did not exclude a reasonable hypothesis that the front seat passenger (Smith) possessed the heroin and not him. Tyler argued that his due process rights were violated because he had been convicted without proof of his guilt beyond a reasonable doubt. He also argued the court erred by relying on Detective Necolettos's testimony about the lottery play slips and firearms in the vehicle being consistent with drug distribution because that testimony was not disclosed to Tyler before trial. The trial court denied his motion and sentenced him to 40 years' incarceration, with 25 years suspended.

ANALYSIS

A. Scope of Expert Testimony

An appellate court reviews a trial court's decision about the admissibility of evidence for abuse of discretion. Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 92 (2021). Although the trial court has discretion, it is not "free to simply act in any way it may deem desirable under the circumstances." Id. Rather, "the circuit court 'has a range of choice, and . . . its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.'" Id. at 93 (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)). It is well-settled that "trial courts have the authority to interpret their own orders." Fredericksburg Constr. Co., Inc. v. J.W. Wyne Excavating, Inc., 260 Va. 137, 144 (2000); see also Rusty's Welding Serv., Inc. v. Gibson, 29 Va.App. 119, 129 (1999) (en banc). If a trial court's evidentiary ruling is based on an interpretation of the Rules of the Supreme Court, we review that interpretation de novo. Cousett v. Commonwealth, 71 Va.App. 49, 57 (2019).

Tyler argues that the trial court erred by allowing Detective Necolettos to testify that the presence of unused lottery tickets and firearms in the vehicle were factors on which he relied in forming his opinion that the quantity of heroin was inconsistent with personal use. Tyler claims this is inconsistent with the Commonwealth's pretrial expert witness designation which stated only that: "The Commonwealth expects Detective Necolettos to testify that the amount of drugs seized is inconsistent with personal use." Because Detective Necolettos admitted on cross-examination that he had not reviewed the body camera footage or considered the presence of the unused lottery tickets or firearms prior to when the Commonwealth made its written designation, Tyler argues that this testimony violated the court's discovery order.

Here, the discovery order incorporated Rule 3A:11(b)(4)(A), and required the Commonwealth to:

Notify the accused in writing of the Commonwealth's intent to introduce expert opinion testimony at trial or sentencing and to provide the accused with: (i) any written report of the expert witness setting forth the witness's opinions and bases and reasons for those opinions, or, if there is no such report, a written summary of the expected expert testimony setting forth the witness's opinions and the bases and reasons for those opinions, and (ii) the witness's qualifications and contact information.

The order also incorporated Rule 3A:11(b)(4)(B):

Nothing in subparts (b)(4)(A)(i) or (ii) of this Rule renders inadmissible an expert witness's testimony at the trial or sentencing further explaining the opinions, bases and reasons disclosed pursuant to this Rule, or the expert witness's qualifications, just because the further explanatory language was not included in the notice and disclosure provided under this Rule.

Under Rule 3A:11(b)(4)(A) and the court's discovery order, the Commonwealth needed to disclose not only the...