COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
EVWAN LEVAR WELLS
OPINION BY
v. Record No. 1950-99-2 JUDGE LARRY G. ELDER
JULY 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Charles C. Cosby, Jr. (Andrea C. Long; Boone,
Beale, Cosby & Long, on brief), for
appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Evwan L. Wells (appellant) was convicted in a bench trial
for possession with intent to distribute more than one-half
ounce but less than five pounds of marijuana, in violation of
Code § 18.2-248.1. On appeal, appellant contends the trial
court erroneously (1) concluded the evidence was sufficient to
prove he possessed the marijuana; (2) permitted the Commonwealth
to impeach its own witness; and (3) permitted the Commonwealth
to argue in closing that appellant took the stand but failed to
deny possession of the drugs, thereby implying he was guilty.
We hold the testimony of Commonwealth's witness Aretha Elder was
not inherently incredible and, along with other evidence, was
sufficient to prove appellant's guilt beyond a reasonable doubt.
We also hold the trial court did not err in permitting the
Commonwealth to impeach its own witness, who first gave
testimony at odds with her prior statement but later admitted
most of the statement was true. Finally, we hold the court did
not err in permitting the Commonwealth to comment in closing on
appellant's failure, while testifying in his own behalf, to
disclaim possession of the drugs. Therefore, we affirm
appellant's conviction.
A.
SUFFICIENCY OF THE EVIDENCE TO PROVE POSSESSION 1
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
conclusions of the fact finder on issues of witness credibility
"may only be disturbed on appeal if this Court finds that [the
witness'] testimony was 'inherently incredible, or so contrary
to human experience as to render it unworthy of belief.'"
Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417,
419 (1991) (quoting Fisher v. Commonwealth, 228 Va. 296,
299-300, 321 S.E.2d 202, 204 (1984)).
1
Appellant does not challenge the sufficiency of the
evidence to prove intent to distribute.
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"To convict a person of possession of illegal drugs 'the
Commonwealth must prove that the defendant was aware of the
presence and character of the drugs and that he intentionally
and consciously possessed them.'" Castaneda v. Commonwealth, 7
Va. App. 574, 583, 376 S.E.2d 82, 86 (1989) (en banc) (quoting
Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814
(1975)). Possession need not be actual, exclusive, or lengthy
in order to support a conviction; instead, the statute
criminalizes constructive or joint possession of illegal drugs
of any duration. See 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).
Constructive possession of illegal drugs may be proven by
"'evidence of 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.'"
Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81,
82 (1992) (quoting Drew v. Commonwealth, 230 Va. 471, 473, 338
S.E.2d 844, 845 (1986)). Neither close proximity to illegal
drugs nor occupancy of an automobile in which they are found,
standing alone, is sufficient to prove "possession" of such
drugs; however, both are factors that may be considered in
determining whether possession occurred in a particular case.
See Castaneda, 7 Va. App. at 583-84, 376 S.E.2d at 87.
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Circumstantial evidence may be sufficient to prove possession,
as long as it excludes all reasonable hypotheses of innocence
flowing from the evidence. See Higginbotham, 216 Va. at 352-53,
218 S.E.2d at 537 (citing LaPrade v. Commonwealth, 191 Va. 410,
418, 61 S.E.2d 313, 316 (1950)).
Here, the combination of direct and circumstantial evidence
was sufficient to prove beyond a reasonable doubt that appellant
constructively possessed the marijuana found at 200 Gravatt
Avenue. Although Aretha Elder's trial testimony was partially
inconsistent with her pretrial statement to police, she
testified unequivocally that she knew appellant and her cousin
Jacques were selling narcotics from her home. The only aspect
of that issue on which her testimony varied from her pretrial
statement was whether appellant and Jacques made the sales from
"outside" or "in[side]" the home when she was present. Aretha
Elder's testimony on this point was not inherently incredible
and was supported by the testimony of Officer Rutledge that
Daniel Coles had purchased marijuana there a few days
previously. The trial court was entitled to accept Aretha
Elder's testimony as true. It also was entitled to reject
appellant's testimony and that of his father as to how appellant
obtained the large quantity of cash he had in his possession at
the time of the search.
Other evidence established that appellant frequently
"stayed" at 200 Gravatt Avenue and may have helped Jacques Elder
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with his share of the rent. Appellant was present when police
executed a search warrant on September 11, 1997, and was present
for at least thirty minutes prior to the execution of the second
warrant on February 24, 1998. When police entered the second
time, they noticed the strong odor of marijuana and found
marijuana in numerous locations throughout the house. Aretha
Elder's statement that appellant and Jacques sold drugs from
that location, coupled with appellant's presence in the home
with the strong odor of marijuana, multiple packages of
marijuana and cocaine, paraphernalia indicative of drug
distribution, including two sets of scales and a large quantity
of small ziploc baggies, and a large quantity of cash on his
person were sufficient to prove appellant possessed the
marijuana jointly with others and to exclude all reasonable
hypotheses of appellant's innocence. See Hetmeyer v.
Commonwealth, 19 Va. App. 103, 111-12, 448 S.E.2d 894, 899-900
(1994) (noting that defendant's possession of a large sum of
money in hotel room in which drugs were found was a factor in
determining whether appellant constructively possessed the
drugs).
B.
IMPEACHMENT OF COMMONWEALTH'S WITNESS
Appellant contends the trial court erred in allowing the
Commonwealth to impeach its own witness. We disagree.
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"Code § 8.01-403, applicable in criminal as well as civil
cases, allows impeachment of a party's witness with prior
inconsistent statements after that witness had been found by the
trial court to be adverse." Ragland v. Commonwealth, 16 Va.
App. 913, 920, 434 S.E.2d 675, 680 (1993). "A party's own
witness 'prove[s] adverse' if the witness 'surprise[s] the party
by changing stories or becoming hostile on the stand.'" Maxey
v. Commonwealth, 26 Va. App. 514, 519, 495 S.E.2d 536, 539
(1998) (quoting 1 Charles E. Friend, The Law of Evidence in
Virginia § 4-9, at 147 (4th ed. 1993) (emphasis omitted)).
Prior inconsistent statements admitted for impeachment may not
be used to prove the truth of their contents. See Hall v.
Commonwealth, 233 Va. 369, 374-75, 355 S.E.2d 591, 595 (1987).
The record here supports a finding that Aretha Elder
surprised the Commonwealth when she testified inconsistently
with her prior statement to Officer McNabb. Further, Aretha
Elder's inconsistent testimony was on issues relevant to the
Commonwealth's case, including questions about appellant's
connection to the residence in which the drugs were found, how
often he was there, whether he paid rent, and whether appellant
and Jacques Elder used drugs or sold drugs from the house.
Although such prior inconsistent statements are admissible
only for impeachment, appellant's only objection at trial was
"to the Commonwealth['s] impeaching their own witness." No
evidence indicates the trial court considered the prior
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inconsistent statements for an improper purpose. Aretha Elder
ultimately admitted while testifying that most of her prior
statements were largely true, and she corrected or clarified
those she contended were in error, thereby providing substantive
testimony on most of the same issues covered in her pretrial
statement.
Accordingly, the trial court did not abuse its discretion
when it declared Aretha Elder an adverse witness and allowed the
Commonwealth, in effect, to cross-examine her about her prior
inconsistent statements.
C.
COMMONWEALTH'S COMMENT ON APPELLANT'S TAKING THE STAND BUT
FAILING TO DENY MARIJUANA POSSESSION
Appellant contends that by taking the stand and testifying
about how he was employed at the time of the offense, he waived
his right against self-incrimination on that issue only and that
the Commonwealth's cross-examination was limited to the scope of
his direct examination. Consequently, he asserts, he did not
waive his right against self-incrimination on any other issue
and the trial court erred in allowing the Commonwealth to argue
during closing that his failure to deny possession of the
marijuana was probative of his guilt. We disagree.
An analysis of this assignment of error requires
consideration of two related principles. First, at common law,
an accused "was incompetent to testify in his own behalf."
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Smith v. Commonwealth, 182 Va. 585, 596, 30 S.E.2d 26, 30
(1944). This disability has been removed by statute in most
jurisdictions, including Virginia. See id.; Code § 19.2-268.
An accused has a right under the United States Constitution to
testify in his or her own behalf. See Rock v. Arkansas, 483
U.S. 44, 49-53, 117 S. Ct. 2704, 2708-10, 97 L. Ed. 2d 37
(1987). Although an accused may now choose to testify in his or
her own behalf, the United States and Virginia Constitutions
also provide that an accused may not be "compelled in any
criminal proceeding" to do so. Va. Const. art. I, § 8; see U.S.
Const. amend. V.; see also Farmer v. Commonwealth, 12 Va. App.
337, 340, 404 S.E.2d 371, 372 (1991) (holding that Virginia
Constitution's self-incrimination provision is no broader than
provision in federal constitution). If the accused chooses not
to testify, "the Fifth Amendment . . . forbids either comment by
the prosecution on the accused's silence or instructions by the
court that such silence is evidence of guilt." Griffin v.
California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233, 14
L. Ed. 2d 106 (1965).
Code § 19.2-268 both removes the common-law prohibition on
an accused's testifying and sets out certain principles intended
to protect the accused's constitutional right not to testify.
That statute provides as follows:
In any case of felony or misdemeanor,
the accused may be sworn and examined in his
own behalf, and if so sworn and examined, he
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shall be deemed to have waived his privilege
of not giving evidence against himself, and
shall be subject to cross-examination as any
other witness; but his failure to testify
shall create no presumption against him, nor
be the subject of any comment before the
court or jury by the prosecuting attorney.
Code § 19.2-268.
An accused does not waive his privilege against
self-incrimination by testifying before trial or, in a jury
trial, outside the presence of the jury as to "collateral
matters," such as venue or the admissibility of a confession.
See Washington v. Commonwealth, 214 Va. 737, 738-39, 204 S.E.2d
266, 267 (1974); Friend, supra § 7-7(c)(3), at 261. However, an
accused who chooses to testify as permitted by Code § 19.2-268
"must accept all of the terms of that section, and (1) 'be
deemed to have waived his privilege of not giving evidence
against himself,' and (2) 'be subject to cross-examination as
any other witness.'" Thaniel v. Commonwealth, 132 Va. 795, 805,
111 S.E. 259, 262 (1922) (citation omitted). The testifying
accused waives his privilege against self-incrimination
"absolutely and in all respects." Id. at 806, 111 S.E. at 262
(emphasis added).
[W]here the accused takes the stand in his
own behalf and voluntarily testifies for
himself, he may not stop short in his
testimony by omitting and failing to explain
incriminating circumstances and events
already in evidence, in which he
participated and concerning which he is
fully informed, without subjecting his
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silence to the inferences naturally to be
drawn from it.
Caminetti v. United States, 242 U.S. 470, 494, 37 S. Ct. 192,
198, 61 L. Ed. 442 (1917) (upholding trial court's giving of
instruction permitting jury to draw such an inference), cited
with approval in Johnson v. United States, 318 U.S. 189, 196, 63
S. Ct. 549, 553, 87 L. Ed. 704 (1943); see also Carpenter v.
United States, 264 F.2d 565, 569-70 (4th Cir. 1959). A court
does not err in instructing a jury that it may draw such
inferences from the selective silence of a testifying accused.
See Caminetti, 242 U.S. at 494, 37 S. Ct. at 198. Any
inferences that a jury may draw are also appropriate subjects
for argument by the Commonwealth.
Manifestly, an accused who takes the stand waives his right
against self-incrimination in its entirety, not just
selectively, and may be cross-examined on any subject related to
the offenses for which he is on trial. See, e.g., Drumgoole v.
Commonwealth, 26 Va. App. 783, 786-87, 497 S.E.2d 159, 161
(1998) (holding that defendant who testified on direct
examination only about reasons Commonwealth's witness would be
motivated to give false testimony about him could be
cross-examined about the circumstances surrounding the malicious
wounding and robbery for which he was on trial). An accused, by
taking the stand, also waives his right not to have the
Commonwealth comment on his failure to testify on a particular
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issue or subject. Both the United States and Virginia
Constitutions and Code § 19.2-268 prevent the Commonwealth from
commenting on the failure of the accused to testify only if he
does not take the stand. Once the accused does so, as set out
above, he waives the privilege against self-incrimination
"absolutely and in all respects." Thaniel, 132 Va. at 806, 111
S.E. at 262; see Caminetti, 242 U.S. at 494, 37 S. Ct. at 198.
Accordingly, we hold the trial court did not err in permitting
the Commonwealth to argue that appellant's failure to deny
possession of the marijuana was probative of his guilt of the
charged offense.
For these reasons, we hold the evidence was sufficient to
support appellant's conviction. We also hold the trial court
did not err when it allowed the Commonwealth to question its own
witness about allegedly prior inconsistent statements and to
comment in closing about appellant's failure when testifying to
disclaim possession of the marijuana. Therefore, we affirm
appellant's conviction.
Affirmed.
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