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Insufficient corroboration of accomplice testimony

Virginia Lawyers Weekly//December 5, 2022

Insufficient corroboration of accomplice testimony

Virginia Lawyers Weekly//December 5, 2022

Although there was sufficient evidence to convict appellant of racketeering, the court’s failure to give the jury a cautionary instruction regarding corroboration of accomplice testimony requires reversal and remand for a new trial.

It was meth

Appellant Holmes appeals two racketeering convictions. “Holmes argues the evidence was insufficient to prove … that she committed two distinct acts as alleged in the indictments, for each indictment.

“Specifically, she argues that only one certificate of analysis proving the presence of methamphetamine was established for each indictment, and the other circumstantial evidence of a second distinct act did not sufficiently establish the nature of the substances delivered to and subsequently redistributed by Hartless and Roger.

“It is not necessary for the Commonwealth to prove the nature of an illegal substance using direct evidence, such as a certificate of analysis. … Rather, the nature of the substance can be proven by circumstantial evidence.”

Such evidence includes the physical appearance of the substance, whether it produced the intended effect when sampled, a high price paid in cash for the substance, secrecy and whether the substance was called by name by a defendant or others in his or her presence.

“[C]ircumstantial evidence of the nature of an illegal substance need not include expert testimony. … Users and addicts, if they have gained familiarity or experience with a drug, may identify it. …

“[T]he evidence clearly established that Hartless and Roger were longtime methamphetamine users and, therefore, were familiar enough with the drug to identify it. …

“Hartless and Roger both testified they paid Holmes $14,000 to $15,000 per pound of methamphetamine. … [T]he court received testimony from Hartless, Roger, and Verdi that each of them communicated with Holmes regarding the purchase, delivery, and sale of methamphetamine.

“Hartless testified that a friend introduced him to Holmes and initially told him that Holmes wanted to purchase methamphetamine from him, but when the two met in person Hartless learned that Holmes was actually trying to sell to him.

“This included discussions about the quantity and price of the methamphetamine, how it would be packaged, and how it would be delivered.

“A reasonable factfinder could conclude from the accomplices’ testimony about their communications with Holmes that ‘the substance was called by the name of the illegal narcotic by the defendant or others in his presence.’”

Sufficient evidence

“Holmes … challenges the sufficiency of the evidence ‘tying [her] to the charges at hand.’ She argues that … she was never caught with drugs or money, she was supposed to have been delivering narcotics where there were no narcotics and no cash, she had known Roger Holmes and Andrea Verdi outside the context of the alleged distribution ring, and brought grandchildren to a supposed large scale methamphetamine deal among many others.

“We disagree and hold that … the record contained sufficient evidence to convict Holmes of racketeering.

“Three accomplices, Hartless, Roger, and Verdi, all testified that Holmes facilitated and directed the distribution of methamphetamine in Augusta County. … The accomplices testified unequivocally that they communicated with Holmes about purchasing and distributing large quantities of methamphetamine, which she then either delivered or directed to be delivered to Augusta County, and for which she collected large payments.

“This testimony, taken in the light most favorable to the Commonwealth, foreclosed all reasonable hypotheses of innocence and provided the factfinder with more than sufficient evidence to conclude, beyond a reasonable doubt, that Holmes was guilty of racketeering.”

Jury instruction

One rejected instruction “cautioned the jury against the danger of convicting Holmes upon the uncorroborated testimony of an accomplice. … In rejecting Jury Instruction T, the court held that the instruction was not warranted because the accomplice testimony was not uncorroborated.

“The court stated that ‘the testimony of the witness itself can contain the corroboration and in this case there was ample corroboration of the cases.’ We disagree.

“‘[T]he danger of collusion between accomplices and the temptation to exculpate themselves by fixing responsibility upon others is so strong that it is the duty of the court to warn the jury against the danger of convicting upon their uncorroborated testimony.’

“[A]lthough the testimony of Holmes’s accomplices, Benjamin Hartless, Roger Holmes, and Andrea Verdi, corroborate each other, the ‘danger of collusion between [these three] accomplices and the temptation to exculpate themselves by fixing responsibility upon others’ is not alleviated where the sole corroboration is the testimony of another accomplice to the crime. …

“The Commonwealth relies upon three different items of evidence which it argues corroborate the accomplice testimony in this case.

“First, that Roger told the Skyline Drug Task Force that Holmes would go to his house on December 21, 2018, to conduct a methamphetamine transaction, and although Holmes did not have methamphetamine on her person or in her vehicle and no transaction was attempted, she did arrive at the location at the approximate time she was expected.

“Second, both Hartless and Verdi testified that Holmes used SUVs for the drug transactions, and she in fact arrived at Roger’s home on December 21, 2018, in an SUV.

“Third, Officer Hilliard testified that ‘numerous people’ identified Holmes as a drug dealer in Augusta County.

“None of this evidence tends to connect Holmes with the racketeering crimes for which she was convicted. … [T]he testimony that ‘numerous people’ had identified Holmes as a drug dealer, while ‘admitted without objection’ … remains hearsay and is entitled to minimal weight. …

“The identity of the declarants, the context of the statements, and the bases of the declarants’ knowledge, are entirely unknown.

“It therefore cannot be known whether the declarants are likewise accomplices in this racketeering enterprise and thus subject to the same requirement of corroboration, or whether the statement that Holmes has been identified as a drug dealer even relates to the charged offenses.

“The testimony that ‘numerous’ unidentified ‘people,’ in unknown contexts, had, at some unknown point in time, identified Holmes as a drug dealer is so attenuated from the charged crimes, and so lacking in any indicia of reliability that it cannot, alone, serve as the corroboration necessary to obviate the need for the cautionary instruction warning against convicting based on the uncorroborated testimony of accomplices.

“We, therefore, hold that the trial court erred in refusing to give the cautionary instruction.”

Affirmed in part, reversed in part and remanded for a new trial.

Holmes v. Commonwealth, Record No. 0250-22-3, Nov. 22, 2022. CAV (Fulton III). From the Circuit Court of Augusta County (Ritchie) H. Eugene Oliver III for appellant. Ken J. Baldassari, Jason S. Miyares for appellee. VLW 022-7-527, 20 pp.

VLW 022-7-527

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