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Lack of transcript fatal to appellate issue

The court could not determine if the trial court erred in denying appellant’s motion to suppress his statements to police regarding the marijuana found in his backpack and his residence because he failed to include a transcript or an agreed upon statement of facts.

Background

On July 27, 2015, Corporal Andrew Perry stopped James Wesley Amonett Jr.’s vehicle. When Officer Perry approached the vehicle, he smelled marijuana. Perry searched Amonett’s vehicle’s center console, where he found marijuana and associated paraphernalia. Perry also found a backpack containing a safe which gave off a strong odor of marijuana.

Detective James Passmore arrived at the scene to assist Perry. Perry and Detective Passmore told Amonett that “if he cooperated further he would possibly be able to go home that night without being arrested or charged.” Amonett signed a consent to search form for the safe in the backpack. Inside the safe the officers found half a pound of marijuana.

At the police station, Amonett stated that he had received a two-pound parcel of marijuana from California, that the half pound found in the safe had been part of this shipment and that the remainder of the shipment was at his residence. Amonett signed another consent to search form related to his residence where they secured the remaining marijuana along with other paraphernalia.

Amonett filed a written motion to suppress his statements to police. A hearing on that motion was held on Feb. 24, 2017. No transcript of that hearing or statement of facts has been provided on appeal.

On March 10, 2017, Amonett filed a pretrial motion to bar the testimony of Dr. Eugene Reichenbecher or in the alternative to dismiss the indictment based upon Dr. Reichenbecher’s failure to appear and testify at the preliminary hearing. The motion was denied. The jury convicted Amonett.

Analysis

At a pre-trial hearing regarding his motion to suppress, Amonett apparently argued, as he does on appeal, that the statements made by the police, “if he cooperated further he would possibly be able to go home that night without being arrested or charged,” constituted an agreement not to prosecute. However, while Amonett provided a transcript of the trial, he did not provide a transcript of the suppression hearing. Without the benefit of a transcript or an agreed upon statement of facts, we cannot say that the circuit court erred in failing to suppress Amonett’s statements.

Moreover, although Amonett’s first assignment of error alleges error on the part of the circuit court for failing to dismiss the indictment, the written motion filed in the circuit court only seeks suppression of the statements, not dismissal of the indictment. For these reasons, in the absence of a record of the pre-trial hearing, Rule 5A:18 bars our consideration of that assignment of error.

Regarding Amonett’s third assignment of error, Amonett is correct that “cooperation/immunity agreements can be somewhat analogous to plea agreements.” However, Amonett fails to recognize the fact that cooperation/immunity agreements and plea agreements are entered into by prosecutors, not the police.

The only scenario in which the police could have granted Amonett immunity from prosecution is if they were acting as agents of the commonwealth attorney. The police officers in this case were clearly not express agents of the prosecution, as there is nothing in the record before us to indicate that they were authorized by the commonwealth attorney to negotiate an immunity agreement on behalf of that office.

Amonett’s second assignment of error is essentially that the jury should have been instructed to return a verdict of “not guilty” if they determined that he had been granted immunity by the police. If an agreement not to prosecute existed between himself and police, it was a contract, the existence of which was a matter of law properly resolved only by the circuit court at the pre-trial hearing, of which there is no record before us. In any event, it was not error for the circuit court to refuse to instruct the jury on that question.

Amonett’s final assignment of error asserts that the circuit court erred by allowing Dr. Reichenbecher to testify at trial because he did not appear at a preliminary hearing despite multiple subpoenas from Amonett. The criminal appellate jurisdiction of this court is limited to reviewing error in the circuit courts of the Commonwealth. Moreover, ample other evidence also showed that the substance confiscated was marijuana—indeed Amonett himself testified that it was “high quality” marijuana. For all of these reasons, we find no merit to this assignment of error.

Affirmed.

Amonett v. Commonwealth of Virginia, Record No. 1613-17-4, Feb. 19, 2019. CAV (Humphreys) from Fairfax Cir. Ct. (White). Alan J. Cilman for Appellant, Liam A. Curry for Appellee. VLW No. 019-7-035, 10 pp. Unpublished.

VLW 019-7-035

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