Suspended sentences revoked for good behavior violation

The trial court properly admitted, under the relaxed evidentiary standard applicable at suspended sentence revocation hearings, field test results that established a vial found near appellant contained PCP. The trial court’s determination that appellant violated the good behavior provisions of his suspended sentences is affirmed.

Facts

Appellant was given suspended sentences for five previous cocaine offenses. Bennett, a police officer, was conducting surveillance from an apartment building rooftop with binoculars when he smelled the order of PCP. He saw a group of people standing near a planter box containing bushes.

A man identified as Lynch handed appellant what appeared to be money. Appellant then appeared to fumble with an object in the planter box. When appellant moved from the area, the odor dissipated. Bennett saw appellant return a short time later, retrieve an object from the planter box, produce a cigarette, return the object to the box and light the cigarette.

Appellant, Lynch and another man, later identified as Walker smoked the cigarette. The odor of PCP became strong when appellant manipulated the object and when the three were sharing the cigarette. Later, a car stopped by appellant and parked. Appellant retrieved the object, produced a cigarette and Lynch took it to the parked car. Lynch returned and gave appellant what appeared to be money.

The group began to disperse. Bennett signaled other officer to detain appellant. As officers approached, appellant quickly entered the apartment building and was apprehended while exiting the back door.

No contraband was found on appellant but about 30 minutes later, Bennett located a vial of liquid in the yard of a vacant home next to the apartment building, a short distance from where appellant was apprehended.

There were flecks of tobacco in the liquid. The liquid was field tested and proved to be PCP. Yanda, another police officer, questioned Walker at the scene. Walker admitted that he, Lynch and appellant smoked a PCP cigarette.

After a revocation hearing, the court determined that appellant had violated the good behavior provisions of his suspended sentences, revoked the suspended sentences and imposed four years of active incarceration.

Field test results

On appeal, appellant claims there were several evidentiary errors at the revocation hearing.

He argues that field test results are inadmissible at revocation hearings. “Code § 19.2-188.1 provides that in a preliminary hearing on charges involving drugs, or a trial on the charge of possession of marijuana, a ‘law-enforcement officer shall be permitted to testify as to the results of field tests that have been approved by the Department of Forensic Science’ regarding the identity of the substance at issue in the case.

“Appellant did not object to admitting into evidence the type of field test Officer Bennett had used to test the substance in the vial, but he objected to Bennett’s stating the results of the field test. Appellant argued that the plain language of Code § 19.2-188.1 did not apply to revocation proceedings.

“The prosecutor acknowledged that the statute did not address revocation hearings specifically, but he argued that the court had discretion to admit the results under the ‘relaxed evidentiary standards for a probation violation.’ See Va. Rule Evid. 2:1101(c)(1).” The court overruled the objection.

“Appellant argues that the trial court erred in admitting the results because Code § 19.2-188.1 did not apply. … [A]ppellant contends that if the General Assembly had intended to allow field test results in revocation hearings, it would have said so.

“We find that the trial court did not rely on the statute in admitting the results. Rather, the court determined that because a ‘relaxed standard’ for admitting evidence applied in a revocation hearing, the field test results would be ‘useful’ to the court and might ‘provide a little weight, depending upon the totality of the circumstances.’ …

“We hold that under the facts of this case the trial court properly exercised its discretion in admitting the evidence.”

Walker’s statement

Appellant argues that Walker’s statement about smoking a PCP cigarette with appellant and Lynch was inadmissible hearsay. “Appellant argues that the trial court erred in admitting Walker’s testimonial hearsay statement without making a specific finding of good cause to admit the statement.

“However, appellant did not object at trial that the court had not made a specific finding of good cause to admit the statement, nor did he ask the court to make that finding. Consequently, he has waived that claim on appeal.”

Sufficient evidence

There was sufficient evidence for the court to determine appellant violated the terms of his suspended sentences. Bennett smelled PCP from the side of the building where appellant and his group were located.

“Bennett testified that he saw Lynch walk from a Lincoln Navigator that was idling in the middle of the street to appellant and hand appellant what appeared to be cash, which appellant put in his pocket. Bennett saw appellant ‘reach[] and fumbl[e] with an object’ in the bushes in the planter box, and the odor of PCP dissipated when appellant moved away from the bushes.

“While Bennett watched, appellant retrieved an object from the bushes in the planter box before producing and lighting a cigarette. The odor of PCP became stronger as Bennett observed appellant, Lynch, and Walker smoke the cigarette. Bennett testified that PCP is consumed by dipping a cigarette into a vial of PCP.

“A short time later, Bennett saw a car stop near where appellant was standing and then park nearby. Appellant took an object from the planter box and gave Lynch a cigarette, which Lynch took to the parked car. The odor of PCP was prevalent while appellant was at the planter box.

“After a few minutes, Lynch returned and appeared to give appellant cash.

“The trial court concluded from Bennett’s testimony that appellant was distributing drugs and found his conduct ‘compelling’ evidence that he had failed to be of good behavior.”

Affirmed.

Singleton v. Commonwealth, Record No. 0605-19-4, July 7, 2020. CAV (Clements) from Arlington County Cir. Ct. (DiMatteo) John I. Jones IV for appellant, Rosemary V. Bourne for appellee. VLW 020-7-146, 9 pp. Unpublished.