COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
JAMES ALLEN BOLEY, JR.
MEMORANDUM OPINION *
v. Record No. 1927-95-1 BY JUDGE JOSEPH E. BAKER
MARCH 11, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT CURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Michael Rosenberg for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Margaret Ann B. Walker, Assistant
Attorney General, on brief), for appellee.
James Allen Boley, Jr. (appellant) appeals from his bench
trial convictions by the Circuit Court of the City of Norfolk
(trial court) for (1) possession of cocaine with intent to
distribute in violation of Code § 18.2-248, (2) possession of
marijuana with intent to distribute in violation of Code
§ 18.2-248.1, and (3) possession of a firearm while in possession
of cocaine in violation of Code § 18.2-308.4.
Appellant contends that the evidence was insufficient to
prove that he exercised dominion and control over the cocaine and
marijuana. Appellant also contends that the trial court erred
when it denied his motion for a mistrial based upon a question by
the Commonwealth's attorney and the investigating officer's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
affirmative response thereto. Appellant asserts that this
question and response were a comment upon his post-Miranda
silence and a violation of his due process rights. Appellant was
tried without a jury, simultaneously with his brother, Robert. 1
As the parties are fully cognizant of the facts produced at
trial, we state only those necessary to an understanding of this
opinion.
I. Sufficiency
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On November 18, 1994, Investigator James Stevens and other
Norfolk police officers searched a two-bedroom apartment located
in the Ocean View section of the City of Norfolk. One bedroom
was on the right side of a hallway, the other bedroom was on the
left. When the officers entered, four persons were in the
apartment including appellant and Robert. Appellant was in the
kitchen, and Robert was in the shower. All four persons were
arrested; however, only appellant and Robert were subsequently
charged.
Police found appellant's personal papers and belongings in
1
This Court previously reversed Robert's conviction in a
memorandum opinion (Record No. 1943-94-1, July 23, 1996). In
contrast to the case before us, the evidence in Robert's case was
insufficient to support his conviction.
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three different locations in the apartment: 2 his identification
card, vehicle registration, and a receipt in his name for payment
of electricity to the apartment were in an envelope on top of the
refrigerator in the kitchen; a traffic summons in appellant's
name was on the floor in the bedroom on the right; and a
misdemeanor arrest warrant for appellant was stuffed in the
pocket of his jacket which hung in the closet in the same right
bedroom. In the right bedroom, police also found nearly $600 in
cash, a nine millimeter pistol with eleven rounds of nine
millimeter ammunition, and a plastic bag containing seventy-three
unused plastic baggies.
Police seized a total of $1,020 from the apartment, along
with four firearms, including the nine millimeter pistol, a
.380 semi-automatic pistol, and two revolvers. They also
discovered two cellular telephones and a pager. Appellant had an
additional pager on his person at the time of the search.
Police discovered cocaine in plain view on top of a speaker
in the front room. The cocaine weighed approximately twenty-four
grams. Electronic scales and almost one hundred and fifty
color-coded plastic baggies were also on or near the speaker.
The bags were divided into groups of black, clear, and blue. The
officers confiscated marijuana from the left bedroom closet where
three of the firearms were kept and from a shoe which contained
2
Tameka Ellis was the actual lessee of the apartment, but
there was no evidence that Ellis was in the apartment when the
search occurred.
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thirteen individual bags of marijuana. The shoe was next to the
speaker in the front room. Altogether, the marijuana weighed
approximately eighty grams.
Appellant's belongings were found in the right bedroom,
while Robert's were found in the front room next to the speaker
and in the hallway on a box. Officer Stevens estimated that the
guns were found approximately twelve feet from appellant's jacket
and approximately eight feet from the refrigerator where items
bearing appellant's name were located. Robert told Officer
Stevens that his cellular phone, money, keys, and jewelry were on
the floor next to the speaker in the front room. Robert's
belongings were a foot or less from the cocaine to the left of
the speaker.
Possession need not always be exclusive. The accused may
share it with one or more. Gillis v. Commonwealth, 215 Va. 298,
302, 208 S.E.2d 768, 771 (1974); Josephs v. Commonwealth, 10 Va.
App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).
We hold that the evidence is sufficient to support the
judgment of the trial court. See Gillis, 215 Va. at 302, 208
S.E.2d at 771; Ritter v. Commonwealth, 210 Va. 732, 741-43, 173
S.E.2d 799, 805-07 (1970); Servis v. Commonwealth, 6 Va. App.
507, 524, 371 S.E.2d 156, 165 (1988); Monroe v. Commonwealth, 4
Va. App. 154, 156, 355 S.E.2d 336, 337 (1987).
II. Mistrial
Appellant and Robert were tried at the same time before the
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same trial court. After establishing that both appellant and
Robert had been advised of their respective Miranda rights, the
prosecutor further inquired of Investigator Stevens in the
following manner:
Q. I understand that [appellant] made no
statement to you but [Robert] made a
statement to you?
A. He made a statement, yes.
Appellant objected and moved for a mistrial, citing Doyle v.
Ohio, 426 U.S. 610 (1976). The trial court denied the motion.
Appellant offered no evidence at trial. Here, appellant asserts
that use of his post-arrest silence violates his right to remain
silent and denies him fundamental fairness guaranteed by the
Fourteenth Amendment to the United States Constitution.
In Robinson v. Commonwealth, 14 Va. App. 91, 414 S.E.2d 866
(1992), we reviewed Doyle, Durant v. Commonwealth, 7 Va. App.
454, 375 S.E.2d 396 (1988), and other federal opinions concerned
with Doyle issues. On facts more similar to those before us, we
said, "a single comment, which only vaguely and indirectly
referenced the defendant's post-arrest silence, does not violate
Doyle." Robinson, 14 Va. App. at 94, 414 S.E.2d at 868. As
further noted by the Robinson Court, the trier of fact here is
not likely to have related appellant's post-arrest silence to the
isolated statement. The question was not made on
cross-examination to challenge appellant's credibility and
clearly did not "so infect the trial with unfairness that the
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ultimate conviction constituted a denial of due process." Id. at
95, 414 S.E.2d at 868.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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