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Saunders v. Commonwealth

Court of Appeals of Virginia. Alexandria
Jun 29, 1993
Record No. 2044-91-4 (Va. Ct. App. Jun. 29, 1993)

Opinion

Record No. 2044-91-4

June 29, 1993

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY ROSEMARIE ANNUNZIATA, JUDGE.

Patrick N. Anderson (Albo Anderson, on brief), for appellant.

Virginia B. Theisen, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.

Present: Chief Judge Moon, Judges Coleman and Willis.

On May 1, 1993, Judge Moon succeeded Judge Koontz as chief judge.

Argued at Alexandria, Virginia.


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


On appeal from his conviction of possession of cocaine with intent to distribute, Posey J. Saunders contends that the trial court erred (1) in finding the evidence sufficient to prove intent to distribute, (2) in finding the chain of custody sufficient and refusing to suppress as evidence a sliver of cocaine, and (3) in finding the chain of custody sufficient and refusing to suppress as evidence contents recovered by pumping his stomach. We find no error and affirm the judgment of the trial court.

On December 26, 1990, Officer Pedigo, working undercover, asked Saunders if he knew where to get a "40." Saunders asked Pedigo whether he had a pipe and Pedigo replied that he did. Saunders disappeared for approximately a minute and one-half. When he returned, he entered Pedigo's truck. Saunders produced a baggie containing a rock-like piece of material. Saying that he wanted to make sure that Pedigo was "cool" and not "a cop," he offered Pedigo a small piece of material from the baggie and told him to smoke it. Pedigo removed $40 from his pocket and placed it on the truck's seat. He then took the piece of material from Saunders, placed it and the pipe on the truck's dashboard and signaled electronically for fellow officers to make an arrest. Saunders, alarmed by Pedigo's actions, twisted the "baggie" closed and swallowed it. Pedigo tried to prevent this by wrestling with Saunders for several seconds. Soon afterwards, the other officers arrived and arrested Saunders.

After the arrest, Pedigo placed the small piece of cocaine he had left on the truck's dash into a "baggie," sealed it, took it to the police station and then delivered it to the Northern Virginia Forensics Laboratory, where it was determined to be cocaine. Meanwhile, Officer Greeves noticed that Saunders was sweating profusely and seemed agitated. Concerned that Saunders might be in danger from swallowing the cocaine, Greeves took Saunders to a hospital, where a doctor pumped his stomach. The attending nurse handed Greeves a specimen cup containing the removed stomach contents, which included a plastic baggie and small chunks of material.

On March 1, 1991, the court denied Saunders' motion to suppress the piece of cocaine for an alleged break in the chain of custody. On April 19, 1991, the trial court granted Saunders' motion to suppress the evidence of the fluids extracted from Saunders' stomach but denied the motion as to the "baggie" or chunks of extracted material. The trial court rejected evidence of laboratory analysis of the stomach contents but ruled that the baggie and small chunks were admissible as circumstantial evidence corroborating Pedigo's account of the incident.

Mr. Saunders first argues that the evidence failed to prove his intent to distribute cocaine. We disagree. Saunders and Officer Pedigo negotiated for the sale and purchase of a "40." Saunders disappeared. He returned with the requested cocaine and gave a small piece to Officer Pedigo to try before concluding the sale. These circumstances sufficiently support the finding that Saunders intended to distribute cocaine.

Saunders next contends that the evidence of the small piece of cocaine should have been suppressed because Officer Pedigo broke the chain of custody when he took his eyes off it. The Commonwealth must afford reasonable assurance that the exhibits at trial are the same and in the same condition as when first obtained. Robinson v. Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971). However, "[t]he Commonwealth is not required to exclude every conceivable possibility of substitution, alteration or tampering." Reedy v. Commonwealth, 9 Va. App. 386, 392, 388 S.E.2d 650, 653 (1990).

The trial court properly received the small piece of cocaine into evidence. The circumstances fairly and reasonably established that the cocaine piece produced at trial was the one placed on the truck's dashboard. Pedigo testified that he placed it on the dashboard directly above the steering wheel, that he picked it up shortly thereafter from the same location, and that he had no doubt that the piece retrieved was the same piece he placed there.

Finally, Saunders argues that the trial court erred in receiving into evidence the chunks extracted from his stomach. He argues that this does not meet the reasonable certainty test of Robinson. He argues that he could have had cocaine in his stomach prior to swallowing the plastic "baggie." We disagree. The trial court properly ruled that these items were circumstantial evidence corroborating Pedigo's account of his transaction with Saunders. Saunders represented to Pedigo that the substance in the "baggie" was cocaine. He sliced off a piece, which tested positive for cocaine. Saunders then swallowed the "baggie" and its contents. The retrieval of the material from Saunders' stomach supported Pedigo's account.

For these reasons, we affirm the trial court's decision.

Affirmed.


Summaries of

Saunders v. Commonwealth

Court of Appeals of Virginia. Alexandria
Jun 29, 1993
Record No. 2044-91-4 (Va. Ct. App. Jun. 29, 1993)
Case details for

Saunders v. Commonwealth

Case Details

Full title:POSEY J. SAUNDERS, SOMETIMES KNOWN AS POSEY JEROME SAUNDERS v…

Court:Court of Appeals of Virginia. Alexandria

Date published: Jun 29, 1993

Citations

Record No. 2044-91-4 (Va. Ct. App. Jun. 29, 1993)