No hearsay violation in drug possession case

Appellant’s convictions of six counts of possession with intent to distribute cocaine are affirmed.

There were no hearsay violations, there was sufficient evidence to support his convictions and there were no speedy trial violation.

Statement of the case

“Palmer was convicted of six counts of possession with intent to distribute cocaine after a confidential informant purchased cocaine from him or an associate [Bond] during six separate controlled buys over the course of a month. …

“Palmer argues that the circuit court erred in

“(1) denying his motion to strike the evidence relating to the controlled buy on July 25, 2019 (third controlled buy) because the evidence failed to show he distributed cocaine,

“(2) admitting testimonial hearsay statements relating to the third controlled buy in violation of the Sixth Amendment’s Confrontation Clause and the rule against hearsay, and

“(3) denying the motion to dismiss all six counts after Palmer’s statutory speedy trial rights were violated. …

“[W]e affirm Palmer’s convictions.”

Background

“The third controlled buy proceeded much like the other buys. Before the controlled buy, the law enforcement officers searched the informant’s vehicle, gave her money and surveillance equipment, and showed her Palmer’s photograph.

“They then conducted the controlled call, and Palmer answered and instructed the informant to go to a local restaurant. Once the informant arrived, a second call occurred and a female voice told the informant to go to a 7-Eleven. When the informant arrived at the 7-Eleven, she texted Palmer and asked where he was.

“She was then approached by a woman she did not know, later identified as Courtney Bond.

“The informant initially refused to purchase cocaine from Bond because she did not know her. The informant texted Palmer after he did not answer her phone call and told him she would not talk to Bond.

“Palmer texted the informant, ‘Go ahead and deal with [Bond]. She’s okay. She’s with me.’ …

“Once both Palmer and Bond assured the informant that Bond was with Palmer and Palmer had packaged the cocaine, the informant bought it.

“After the buy, a detective saw Bond meet up with Palmer. The police conducted three more controlled buys until indictments were issued for Palmer for six counts of distribution of a controlled substance.”

Palmers appealed his convictions.

No hearsay violation

“Palmer contends … Bond’s statements to the informant … were inadmissible testimonial hearsay and Palmer did not have an opportunity to confront Bond about them.

“But the statements were admissible as an exception to the hearsay rule allowing co-conspirator statements made in furtherance of a conspiracy and were not testimonial. Thus, the Confrontation Clause’s protections did not apply, and the circuit court did not err in admitting the statements. …

“Bond’s statements alone cannot prove the conspiracy existed. Yet circumstances and acts outside of those statements established that Palmer and Bond conspired to distribute cocaine.

“Palmer orchestrated and coordinated the buy with the informant, and he told the informant where to go. Bond did not appear at the informant’s vehicle until after the informant texted Palmer that she had arrived. The informant refused to buy the cocaine from Bond until Palmer reassured her that Bond was working with him.

“A detective then saw Bond and Palmer meet up shortly after the sale. Further, the informant purchased drugs twice from Palmer directly in the ten days before the third controlled buy, using a nearly identical process.

“All of these circumstances showed that Palmer and Bond pursued the same object, that is, cocaine distribution, and took steps to achieve it. As a result, the Commonwealth sufficiently proved a prima facie case that a conspiracy between Bond and Palmer existed.”

Sufficient evidence

“Palmer argues that the circuit court erred in denying his motion to strike the evidence on the third controlled buy count because the evidence merely revealed suspicious circumstances and the circuit court ignored a reasonable hypothesis of innocence.

“He contends that the evidence only showed that Bond sold the cocaine to the informant and Bond and Palmer met up shortly after the sale. These circumstances, while suspicious, fail to prove he committed the crime.

“Moreover, even if the circuit court credited the inadmissible statements Bond made to the informant, it overlooked a reasonable hypothesis of innocence that Palmer gave Bond the cocaine as an accommodation and she sold it without his knowledge. …

“[T]he evidence sufficiently proved Palmer possessed the cocaine with the intent to distribute. … [T]he record contains ample evidence to support the circuit court’s finding that Palmer possessed the cocaine with the intent to distribute it as a principal in the second degree.

“Palmer’s recitation of the facts omits that the informant called his number to set up the controlled buy, he told the informant where to get the cocaine, and he assuaged the informant’s concerns about Bond. In fact, the informant refused to buy from Bond until Palmer assured her that he had sent Bond.

“Further, the informant identified Palmer as the person she spoke to on the phone to coordinate the buy and as the person she had purchased drugs from directly two days earlier. Bond also told the informant that Palmer had sent her, and Palmer bagged the cocaine himself. …

“Overall, Palmer’s acts and declarations show that he controlled the cocaine, and thus constructively possessed it with the intent to distribute it. Thus, the Commonwealth presented extensive evidence that Palmer intended his words or actions to advise and help Bond commit the crime.

“Lastly, Palmer’s reasonable hypothesis of innocence argument fails because no evidence in the record shows that he gave Bond an accommodation. Even overlooking the evidence that Palmer orchestrated the buy, Palmer failed to meet his burden of proving an accommodation in the circuit court. … Palmer did not put on any evidence at trial that he gave Bond the cocaine as an accommodation. Thus, Palmer’s argument fails.”

Speedy trial

“Palmer argues that he was incarcerated for a period well over the speedy trial statutory maximum, despite his objections. But most of the 631 days between Palmer’s arrest and trial can be attributed either to Palmer’s own agreement or the judicial emergency’s tolling of the statutory deadline.

“As a result, the circuit court did not err in denying Palmer’s motion to dismiss based on statutory speedy trial grounds.”

Affirmed.

Palmer v. Commonwealth, Record No. 0885-21-1, Aug. 9, 2022. CAV (Ortiz) From the Circuit Court of the City of Hampton (Gaten) Joshua A. Goff for appellant. Ken J. Baldassari, Jason S. Miyares for appellee. VLW 022-7-316, 14 pp. Unpublished opinion.