Wilson v. Commonwealth

Present: All the Justices

TYRONE ALPHONSO WILSON

v. Record No. 051968 OPINION BY JUSTICE ELIZABETH B. LACY
June 8, 2006
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, Tyrone Alphonso Wilson challenges the

sufficiency of the evidence to establish possession with

intent to distribute cocaine, a violation of Code § 18.2-248,

and possession with intent to distribute more than one-half

ounce but less than five pounds of marijuana, a violation of

Code § 18.2-248.1. He also challenges the trial judge's

actions in refusing to consider a plea agreement and to recuse

himself from Wilson's case. Although we find no merit in

Wilson's challenge to the sufficiency of the evidence, we

conclude that the judgments of conviction must be vacated and

the case remanded because the trial judge's actions

demonstrated an appearance of partiality and, therefore, the

trial judge abused his discretion in refusing Wilson's recusal

motion.

Facts and Proceedings

Several officers and investigators from the Norfolk City

Police Department executed a search warrant on an apartment

after conducting surveillance of the apartment for over an

hour. Inside the apartment, the officers found six men,
including Wilson. The police recovered from cabinets in the

kitchen six bags holding smaller bags of marijuana, a number

of "baggies," cash, and a scale covered with what appeared to

be cocaine residue. A bag containing cocaine, a nine-

millimeter pistol, marijuana, a cell phone, and a pager device

in plain view in the living room were also recovered by the

police.

Officers found Wilson in the kitchen of the apartment.

While lying on the floor at the direction of the officers,

Wilson told the officers he had a .45 caliber pistol, which

the officers retrieved.

No drugs were found on Wilson's body, but he did have

$1,755 cash and keys to a van which was parked outside the

apartment. The police officers found amounts of cocaine worth

$350,000 hidden in the "traps" in the door panels of the van.

The officers also recovered from the van a magazine of bullets

for a .45 caliber gun. The only .45 caliber gun recovered was

the one found on Wilson.

Wilson was indicted for two counts of possession of a

firearm while in possession of cocaine, Code § 18.2-308.4,

possession of cocaine with intent to distribute, Code § 18.2-

248, possession of more than one-half ounce but less than five

pounds of marijuana with intent to distribute, Code § 18.2-

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248.1, and possession of a weapon by a convicted felon, Code

§ 18.2-308.2.

On July 16, 2002, Wilson and his attorney, Allen D.

Zaleski, appeared in the Circuit Court of the City of Norfolk

before Judge Charles E. Poston briefly before being

transferred to Judge Charles D. Griffith, Jr.'s courtroom.

The case was set for a bench trial, but when the case was

transferred to Judge Griffith, Wilson requested a trial by

jury. In response to Judge Griffith's questions, Zaleski

admitted that he counseled Wilson to ask for a jury trial

specifically because the case was transferred to Judge

Griffith. Judge Griffith then attempted to relieve Zaleski

from representing Wilson in the case. When Judge Griffith

learned that he could not remove Zaleski because Wilson had

retained Zaleski to represent him, Judge Griffith ordered that

Zaleski be removed from the circuit court's list of court-

appointed attorneys "effective immediately." Judge Griffith

declared he was "not going to have a court-appointed lawyer

who practices that way in this court building," and referred

to Zaleski's actions as "shenanigans." During this

proceeding, Judge Griffith also ruled that by waiting to

request a jury trial until the case was transferred, Wilson

waived the 14-day notice period required for admission of

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juvenile records under Code § 19.2-295.1 and that Wilson could

not later waive his right to a jury trial.

On September 6, Wilson appeared before Judge Everett A.

Martin, changed his request back to a bench trial, and was

arraigned on all the charges. Judge Martin set the case for a

bench trial for the following week. Upon learning that

Wilson's case was again set for a bench trial, Judge Griffith

approached the chief judge of the circuit court and suggested

that a defendant should not be allowed "to avoid a particular

courtroom" by seeking a jury trial. Following this exchange,

the chief judge removed the case from the "open docket," that

is, assignment of the trial judge on the day of trial, and

assigned the case to Judge Griffith.

On September 10, 2002, when Wilson appeared before Judge

Griffith for the trial, the following exchange took place:

MR. ZALESKI: Your Honor, we're very close to a
plea agreement in this case.

THE COURT: We're ready to start the trial.

MR. ZALESKI: If we present a plea agreement –

THE COURT: The trial is getting ready to begin,
Mr. Zaleski.

MR. ZALESKI: Yes, Your Honor. Can I have just
two minutes to talk to my client?

THE COURT: I have asked them to bring him out
so we can start the trial. This case has been
on the docket plenty of times. It's time to go.

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 . . . .

[The Clerk calls the case and some of the
witnesses are sworn.]

. . . .

MRS. BRYANT:[1] Before the Court proceeds in
this case further, it's my understanding that
Mr. Wilson would like to enter a plea of guilty.
We don't have a plea agreement written out. We
would ask the Court to accept the plea. It
calls for a total sentence of 20 years with four
to serve.

THE COURT: I'm sorry, but we're getting ready
to start a trial. You-all have had plenty of
time to negotiate. We're not doing any
negotiations right now. We're starting a trial.

MR. ZALESKI: You're rejecting the agreement? I
would move –

THE COURT: There is no agreement. This case is
beginning trial. You are beyond your time to
negotiate a plea agreement. We're starting a
trial today.

Counsel for the Commonwealth then requested a conference

in chambers during which she explained to Judge Griffith that

on the eve of trial the Commonwealth learned of certain

exculpatory evidence connected with a Commonwealth's witness.

Based on this development, the Commonwealth offered Wilson a

plea agreement. After this explanation, the following

exchange took place.

THE COURT: All right. Let's go. You seem to
think that once this trial begins, which has
begun . . . that somehow or another you have a

1
Ms. Bryant was an assistant Commonwealth's Attorney.

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 right to stop everything and present a plea
agreement and force me to consider a plea
agreement. This trial is ready to begin. Your
time for negotiating is over. It's time to
start the trial.

MRS. BRYANT: I was actually –

MR. ZALESKI: Is the Court saying you will not
consider any plea agreement at this time?

THE COURT: You have no plea agreement.

MR. ZALESKI: That is the Court's position?

THE COURT: We have started a trial. It's too
late to negotiate.

MR. ZALESKI: You are stating you will not
consider any plea agreement at all?

THE COURT: I'm not going to interrupt this
trial and submit a plea agreement. That's
correct. We are ready to start the trial.

At the conclusion of the evidence and the arguments,

Judge Griffith found the defendant guilty of all charges.2 On

April 25, 2003, Judge Griffith sentenced Wilson to a total of

60 years imprisonment, with 30 years suspended.

Wilson appealed to the Court of Appeals of Virginia. A

three-judge panel of the Court of Appeals reversed the trial

court's judgment and remanded the case. Wilson v.

Commonwealth, Record No. 1229-03-1 (January 18, 2005). In a

rehearing en banc, the judgment of the trial court was

2
After considering post-trial motions, the trial court
dismissed one of the convictions for possession of a firearm
while in possession of cocaine on double jeopardy grounds.

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affirmed by a divided vote. Wilson v. Commonwealth, Record

No. 1229-03-1 (Aug. 23, 2005) (en banc). Wilson appealed to

this Court.

I. Sufficiency of the Evidence

Wilson claims that the evidence at trial was insufficient

to support his convictions of possession with intent to

distribute more than one-half ounce but less than five pounds

of marijuana and possession with intent to distribute cocaine.

Wilson's arguments are directed entirely to the sufficiency of

the evidence as it relates to actual or constructive

possession of cocaine and marijuana; evidence of the intent to

distribute or the amount of the drugs is not at issue.

Because he did not assign error to the sufficiency of evidence

to support his conviction for possession of cocaine while

possessing a firearm, he has therefore conceded the factual

finding that he was in actual or constructive possession of

cocaine. Accordingly, Wilson has waived, and we will not

address, the sufficiency of the evidence of possession of

cocaine in regard to the intent to distribute charge. Our

consideration of this assignment of error is limited to the

sufficiency of the evidence as it relates to Wilson's

possession of marijuana. Wilson argues that the Commonwealth

failed to prove he exercised dominion and control over the

marijuana or was aware of its presence in the apartment.

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 The law on possession of illicit drugs in this

Commonwealth is well established. In Walton v. Commonwealth,

255 Va. 422, 497 S.E.2d 869 (1998), we stated:

In order to convict a person of illegal
possession of an illicit drug, the Commonwealth
must prove beyond a reasonable doubt that the
accused was aware of the presence and character of
the drug and that the accused consciously possessed
it. Andrews v. Commonwealth, 216 Va. 179, 182,
217 S.E.2d 812, 814 (1975). An accused's mere
proximity to an illicit drug, however, is not
sufficient to prove possession. Drew v.
Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986). In addition, ownership or occupancy of the
premises where the drug is found does not create a
presumption of possession. Code § 18.2-250.1(A);
Garland v. Commonwealth, 225 Va. 182, 184, 300
S.E.2d 783, 784 (1983). Nonetheless, these factors
may be considered in deciding whether an accused
possessed the drug. Lane v. Commonwealth, 223 Va.
713, 716, 292 S.E.2d 358, 360 (1982).

Additionally, proof of actual possession is
not required; proof of constructive possession will
suffice. Constructive possession may be
established when there are " 'acts, statements, or
conduct of the accused or other facts or
circumstances which tend to show that the [accused]
was aware of both the presence and character of the
substance and that it was subject to his dominion
and control.' " Drew, 230 Va. at 473, 338 S.E.2d
at 845 (quoting Powers v. Commonwealth, 227 Va.
474, 476, 316 S.E.2d 739, 740 (1984)).

Id. at 426, 497 S.E.2d at 871-72.

When analyzing a challenge to the sufficiency of the

evidence, this Court reviews the evidence in the light most

favorable to the prevailing party at trial and considers any

reasonable inferences from the facts proved. Viney v.

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Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005). The

judgment of the trial court will only be reversed upon a

showing that it "is plainly wrong or without evidence to

support it." Code § 8.01-680; see Viney, 269 Va. at 299, 609

S.E.2d at 28. Applying these well established principles to

the facts of the present case, we find the evidence sufficient

to support Wilson's conviction.

The only entrance to the apartment opened to the living

room where marijuana, a bag of cocaine, and a gun were in

plain view when the police entered the apartment. Although

the police found Wilson in the kitchen, Wilson had to walk

through the living room to reach the kitchen. Therefore, it

is reasonable to infer that Wilson was aware of the presence

and character of the drugs in the living room.

The apartment had very few personal effects and no food,

and the police found in plain view a video camera and monitor,

which one of the officers testified are paraphernalia often

used in drug houses for surveillance. Based on the appearance

of the apartment combined with the presence of the scale,

multiple "baggies" of marijuana, and cash found in the kitchen

cabinets, it is reasonable to infer that the apartment was

used as part of a drug distribution scheme. While Wilson's

presence alone does not prove possession of the drugs, the

marijuana in plain view in the living room, the character of

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the apartment, and the cash and gun found on Wilson's person

prove sufficient dominion and control over the illicit drugs

to establish constructive possession. Walton, 255 Va. at 426,

497 S.E.2d at 871-72. Thus, sufficient evidence existed to

support Wilson's conviction for possession with intent to

distribute marijuana.

II. Recusal

Wilson asserts that Judge Griffith abused his discretion

in refusing to recuse himself from the case because of his

actions during the July 16 hearing and at trial.

Judge Griffith, when asked to recuse himself, explained

that he was "as capable as anyone else is at giving [Wilson] a

fair trial," that he would be fair, "I can guarantee it."

Thus Judge Griffith concluded that he need not recuse himself.

In considering a motion for recusal, a judge must

exercise reasonable discretion in determining whether he or

she possesses such bias or prejudice that would deny a

litigant a fair trial. Justus v. Commonwealth, 222 Va. 667,

673, 283 S.E.2d 905, 908 (1981). We review a judge's decision

applying an abuse of discretion standard. When considering a

judge's decision regarding recusal, we have stated that in

making the recusal decision, "the judge must be guided not

only by the true state of his impartiality, but also by the

public perception of his fairness, in order that public

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confidence in the integrity of the judiciary may be

maintained." Stamper v. Commonwealth, 228 Va. 707, 714, 324

S.E.2d 682, 686 (1985). We have also suggested that the

Canons of Judicial Conduct are instructive, although not

determinative in our review of a judge's recusal decision.

Jackson v. Commonwealth, 267 Va. 226, 229-30, 590 S.E.2d 518,

519-20 (2004); Commonwealth v. Huynh, 262 Va. 165, 174, 546

S.E.2d 677, 681 (2001).

Upon review of this record, including the preemptory

immediate removal of Zaleski from the court-appointed list,

attempted removal of Zaleski as attorney for the defendant,

reference to Zaleski's actions as "shenanigans," and the

statement that he did not want Zaleski appearing in the court

building as a court-appointed attorney, we conclude that Judge

Griffith exhibited a personal bias or prejudice against

Zaleski.

Judge Griffith further evidenced his personal bias

against Zaleski when he solicited assignment of the case,

causing it to be removed from the "open docket." The record

shows that Judge Griffith believed that Wilson's changing his

request from a bench trial, to a jury trial, then back to a

bench trial stemmed from Zaleski's "shenanigans" to avoid

being tried by Judge Griffith and that Judge Griffith

suggested to the chief judge of the circuit that he be

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assigned the case because a defendant shouldn't be allowed "to

avoid a particular courtroom solely by asking for a jury

trial." The subsequent request to hear Wilson's case in light

of the judge's stated view of Wilson's counsel raises a

concern regarding the judge's impartiality and the public

perception of his fairness.

Finally, declaring that there was no plea agreement and

refusing to allow the agreement to be reduced to writing

similarly raises questions about the judge's attitude toward

Wilson's counsel and counsel for the Commonwealth. Judge

Griffith declared that there was "no plea agreement" even

though counsel for the Commonwealth and for Wilson stated that

an agreement had been reached, and he refused to allow the

parties the opportunity to reduce the agreement to writing for

presentation to the court because the time for "negotiating

[was] over."

While the procedure described in Rule 3A:8(c), titled

"Plea Agreement Procedure," refers to a written, signed plea

agreement, creation of such an agreement does not depend on

the agreement being in written form or on its specific terms

being recited to the judge. A judge need know the specifics

of an agreement only when asked to accept or reject the plea

agreement. Here, both parties represented to Judge Griffith

that a plea agreement existed and that it was initiated at the

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request of the Commonwealth. The parties also explained the

reasons for the timing of the agreement to the judge. Judge

Griffith nevertheless continued to maintain that there was no

agreement, that the time for negotiating such an agreement

"had passed," and that the case was going to proceed to trial

immediately. Judge Griffith made it completely clear that he

would not consider a plea agreement and would not allow

counsel an opportunity to reduce the agreement to writing.

The judge's position gives rise to a reasonable question

concerning his impartiality and the public's perception of his

fairness.

The Commonwealth argues that these instances address

Judge Griffith's attitude toward counsel rather than Wilson

and that during the actual trial Judge Griffith did not make

any rulings that could be considered prejudicial to Wilson.

Consequently, the Commonwealth urges, there is no prejudice or

impartiality shown toward Wilson and no need for recusal. We

disagree with the Commonwealth.

First, an apparent bias against a litigant's attorney

gives rise to a perception by the litigant and the public in

general that the judge may not be fair and impartial in the

conduct of the proceeding. See Canon 3(E)(1)(a) (reasonable

question of judge's partiality when personal bias or prejudice

shown against party or party's counsel). Judge Griffith's

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prejudice or bias against Zaleski is repeatedly reflected in

this record and such bias does raise questions about Judge

Griffith's ability to be impartial in this proceeding.

Furthermore, the refusal to consider the plea agreement or to

allow the parties an opportunity to reduce such an agreement

to writing adversely affected Wilson. Although a trial judge

is free to reject the terms of a plea agreement, Wilson was

denied the opportunity to have such an agreement considered

and, if such an agreement had been presented to and refused by

Judge Griffith, another judge would have tried Wilson's case.

Rule 3A:8.

Based on this record, we conclude that Judge Griffith's

failure to recuse himself was an abuse of discretion because

the record shows that the judge's actions reflected a personal

bias and prejudice against Wilson's counsel and raised

concerns about the judge's impartiality in the case and about

the public's perception of his fairness in the case.3

Accordingly, although the evidence was sufficient to support

conviction of possession of marijuana with intent to

distribute, we will reverse the judgment of the Court of

Appeals, vacate the judgments of conviction, and remand the

3
In light of our decision, we need not address Wilson's
claim that the trial judge erred in refusing to consider the
plea agreement, and that such refusal constituted a rejection

14
case to the Court of Appeals with instructions to remand the

matter to the trial court for a new trial, if the Commonwealth

be so inclined, before a different judge.

Reversed and remanded.

of the agreement, thereby requiring a different judge to
preside over Wilson's trial pursuant to Rule 3A:8(c)(4).

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