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1 CLERK SUPREME COURT OF VIRGINIA APPENDIX TO THE BRIEF FOR APPELLANT IN THE SUPREME COURT OF APPEALS OF VIRGINIA RICHMOND, VIRGINIA EDGAR W. HUNTER, JR., APPELLANT vs. COMMONWEALTH OF VIRGINIA, APPELLEE ***************. RECORD NO *************** APPEAL FROM THE HUSTINGS COURT FOR THE CITY OF NEWPORT NEWS JAMES S. INSLEY 222 EAST QUEEN STREET HAMPTON, VIRGINIA COUNSEL FOR APPELLANT (Appointed by Court)

2 TABLE OF CONTENTS I. Indictment. II. Final Judgment Order III. Notice of Appeal and Assignments of Error IV. Testimony of Lieutenant Charles E. Hinman V. Testimony of Sergeant Thomas Epling. VI. Testimony of Sergeant M. B. Farmer Page 1 Page Page 2 Page 2 through Page 7 Page 7 through Page 16 Page 16 through Page 24 VII. Testimony of Daniel Grinnan, Jr Page 24 through Page 27 VIII. Arguments of Counsel. Page 27 through Page 29 IX. Opinions of Court... Page 29 through Page 30

3 APPENDIX I. INDICTMENT #71-105, STATE OF VIRGINIA, CITY OF NEWPORT NEWS [Tr. Page 3, Line 17 through Page 4, Line 14]. The Grand Jurors, impanelled, sworn and charged in and for the body of this City, have found the following indictment against you. Indictment Number State of Virginia, City of Newport News, to-wit: In the Hustings Court of the said City. The Grand Jurors of the Commonwealth of Virginia, in and for the body of the City of Newport News, and now attending the said Court at its May tenn, 1971, upon their oaths do present: "That Edgar Wardell Hunter, on the fifth day of December, in the 1970, in the said City,unlawfully and feloniously did possess, with intent to distribute, a controlled drug or substance, to-wit: heroin, in violation of the Drug Control Act of Virginia, against the peace and dignity of the Commonwealth of Virgnia. 11 II. FINAL JUDGMENT ORDER OF NOVEMBER 22, 1971 [Tr. Page 58, Line 15 through Line 17 and Page 62, Line 20 through Line 25]. COURr: I'll find he 1 s guilty. I'm ready to hear what you have to say about the recommendation. [Tr. Page 62, Line 20 through Line 25]. COURT: I'm going to sentence you to the penitentiary for a period of four years, which w~ll not run concurrently with any other time you might be required to serve. 1

4 III. NOTICE OF APPEAL AND ASSIGNMENTS OF ERROR DATED JANUARY 21, 1972 NOTICE is hereby given that Edgar W. Hunter, Jr. appeals from a final judgment rendered by this Court on November 22, 1971, and announces his intention of applying for a Writ of Error to the Supreme Court of Appeals of Virginia. ASSIGNMENT OF ERROR 3. The Court erred in holding that the facts alleged to have been committed by the Defendant were such to have constituted possession of heroin by the Defendant with the intent to distribute the same. 4. The Court erred in not dismissing this indictment against the Defendant for the reason that the Virginia Code Section , which sets out the offense of possession of a controlled drug with the intent to distribute is constitutionally deficient in that it violates the due process clause of the Fourteenth Amendment of the United States Constitution, as well as the Equal Protection clause of the Fourteenth Amendment of the United States Constitution. 5. The Court erred in its failure to set aside the verdict as contrary to the law and evidence. 6. The Court erred in its failure to set the verdict aside on the grounds that the Defendant was not shown to be guilty of the crime alleged beyond a reasonable doubt. IV. LIEUTENANT CHARLES E. HINMAN [Tr. P.age 7, Line 16 through Page 8, Line 17; Page 11, Line 18 through Page 13, Line 19 and Page 18, Line 18 through Page 21, Line 11]. LIEUTENANT CHARLES E. HINMAN, called as witness by the Commonwealth, being duly sworn, testified as follows: 2

5 DIRECT EXAMINATION BY MR. DAVIS: Q. All right. State your full name and occupation to the Court. A. C. E. Hinman, Detective Lieutenant, Newport News Police. Q. And Lieutenant Hinman, what particular department do you work out of over there? A. Vice Squad. Q. Directing your attention to the 5th of December, 1970, were you working in this capacity with the Police Department? A. Yes sir. Q. Did you have occasion to go to 868 Arnold Street, in the City of Newport News, Virginia? A. Yes sir. Q. Did you have with you, a search warrant? A. I did. Q. Did you obtain a search warrant?. A. I did. Q. Do you have a copy of the search warrant and the affidavit which you obtained? A. Yes sir. [Tr. Page 11, Line 18 through Page 13, Line 19] Q. All right, Lieutenant Hinman, after you obtained this search warrant, what did you do with it? A. I took a raiding party. to 868 Arnold Street, in the City of Newport News, approximately 10:00 p.m. I went to the back door, with sev~ral other Officers, and I sent a number of other Officers to the front door. I could see through the back door into the back portion of the living room; looking 3

6 through the bedroom area. I could see several people in the living room. I knocked on the glass of the back door and when I knocked, I could see people begin to move around in the living room area. No one came to the back door. I forced the back door open and I went immediately to the bathroom, where I arrested three people there. I served a -- executed a copy of the search warrant on Jimmy Barbara, who was one of the people who lived at this address. When I returned to the living room, I observed the Defendant, Edgar Wardell Hunter, Junior, in the living room. He was dressed in army field jacket and I was advised in his presence that he was under arrest. He, along with several others, were arrested. I had no contact with the evidence in Mr. Hunter's case until December the 7th, 1970, at 3:00p.m., when I removed it from the Police vault in a sealed condition and turned it over to Daniel Grinnan, Junior, a Drug Chemist for the State Board of Pharmacy. Q. All right, sir. You removed it from the Police vault in a sealed condition and turned it over to Mr. Daniel Grinnan? A. Yes sir. Q. In what condition was it in when you turned it over to Mr. Daniel Grinnan? A. In a sealed condition. Q. It remained, from the.time you took it out of the vault, until you turned it over to Mr. Grinnan? A. Yes sir, it did. 4

7 Q. All right, sir. I show you this, which has previously been- left with the Clerk by Mr. Daniel Grinnan and ask you if you can identify that envelope? (At this time an envelope was handed to the witness for his perusal.) A. I can. It bears my initials in the lower left-hand corner and its the evidence in the case of the Defendant, Edgar Wardell Hunter, Junior, on December 5, [Tr. Page 18, line 18 through Page 21, line 11]. Q. Do you know who resides at this address on Arnold Street, where the arrest occurred? A. Yes sir, at the time, there was three boys living there. Jimmy Barbara, Woodard boy -- I m not sure of the other one's name right offhand. Anyhow, it was three living there, as was reported. Q. Was any of them the Defendant? A. No sir. Q. To your knowledge, has he ever resided there; lived there as his home? A. No sir. Q. Do you know where the Defendant lives or did live at this time? A. Yes sir. Q. When you made this arrest on Arnold Street, how many people were present? A. Eight. Q. How many of these were arrested? A. Eight. Q. What were the charges? A. Each was charged with possession of heroin, with the exception of the 5

8 Defendant and he was charge~ with possession of heroin, with intent to distribute. Q. Did you -- personally see the Defendant give anyone any drugs? A. I did not. Q. On this occasion? A. No sir. Q. You say, before you entered this apartment, that you knocked on the window of the back door? A. I did. Q. And how long did you wait, from that time, until you forced the door open? A. Well, I-- I don t know how much time elapsed. I knocked and I saw them moving around in the living room, and no one came to the back door, and I forced the door, and when I was crossing the back portion of the living room, two or three was trying to get out the front, and the - the Officers at the front -- was forcing them back inside, but I don't really know how much time elapsed. Q. So the back door -- to the best of your knowledge, the back door, the door you entered through, was the first door that was forced open; is that correct? A. Yes sir. Q. And let s back up a little bit. When you knocked on the door and you could see into a portion of what, the living room? A. Looking through the bedroom. Q. When you knocked, you got no notification that anyone had heard you, by anyone coming to the door? A. Other than the fact that they began moving around in the living room. 6

9 Q. When you say, 11 moving around," describe what you mean by, 11 moving around. 11 Moving around. Were they running or walking, or what? A. They were running, yes sir. Q. Now, this address, what is it, 868 Arnold Street; is that correct? A. Yes sir. Q. Is that an apartment building? A. It is. Q. And this -- this apartment you forced your way into, was one of the apartments in this building? A. That was 868 Arnold Street. It's just a row of apartments in Briarfield Manor, and each apartment has a different number. V. SERGEANT THOMAS EPLING [Tr. Page 21, line 20 through Page 27, Line 20~ Page 28, line 16 through Page 36, line 11]. SERGEANT THOMAS EPLING, called as a witness by the Commonwealth, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. DAVIS: Q. All right, sir, state your full name and occupation to the Court. A. Thomas Epling, Sergeant, Traffic Division, Newport News Police Department. Q. Sergeant Epling, I direct your attention to the 5th of December, Were you on duty in the City of Newport News? A. Yes sir, I was. Q. And did you have occa~ion to go with Lieutenant Hinman and other members of the Vice Squad to 868 Arnold Street, in the City of Newport News? A. Yes sir, I did. 7

10 Q. And tell the Court just what you observed in reference to this charge here today, when you -- arrived there. A. Yes sir. It was approximately ten o'clock p.m., December the 5th, in the City of Newport News. We went on 868 Arnold Street. Lieutenant Hinman, Sergeant Farmer and myself went to the back door of this residence, and four other Officers went to the front door. We could -- see through an open curtain. We knocked on the door and we could see through the open curtain, people was moving, milling around in the back part of the living room, and no one would come and open the door and Lieutenant Hinman and Sergeant Farmer forced the door open. Lieutenant Hinman went to the bathroom and Sergeant Farmer and myself went on into the living room. The kitchen is a small area just off of the living room. We could see a colored male and a -- white male standing there, side-by-side. They were facing me. White would be on the left and the colored male on the right. I observed the Defendant, Edgar Wardell Hunter, Junior~ take a piece of paper and throw it over by the stove. Sergeant Farmer and I started towards him. He backed up about two steps, reached into his right coat pocket. He had on an army field jacket. He reached into the right pocket and reached his arm down to his side for the length of his arm, and dropped a Coricidin bottle, hit. the floor, and rolled over. Sergeant Farmer and I went for it at the same time. I picked the bottle up. Q. Who dropped that? A. The Defendant. Q. All right. 8

11 A. Edgar Wardell Hunter Junior. Sergeant Farmer and I looked at the bottle after I picked it up, and examined the contents of it, and approximately 10:05 p.m., Sergeant Farmer advised the Defendant that he was under arrest and advised him of his rights. We left the area there and came to the Police Headquarters, counted the -- the caps. There was -- clear caps with white powdery substance in them. We counted them. There was 71 of them. Sergeant Farmer packaged these up in a small brown manila envelope to - send them -- to the druggist to have them examined, and I put my signature on the bottom of this bag they were sent off in. They were placed in a safe at the Headquarters and that s the last I seen of them. Q. When you picked up this Coricidin bottle, what did you do with it? A. I handed it to Sergeant Farmer. Q. I show you this brown envelope and ask you if you can identify that envelope, Sergeant Epling? (At this time a brown envelope was handed to the witness for his perusal.} A. Yes sir, this is the envelope that -- Sergeant Farmer packed the contents, the 71 caps and the Coricidin bottle. BY MR. DAVIS: Q. All right, sir. I would take this knife and I ask you to open the envelope along the lower portion there, and then r 11 -ask you if you can identify the contents -- (The witness complied with the request of counsel.) BY MR. DAVIS: Q. Of that brown paper bag which you have identified. (Th~ witness opened the bag as requested by counsel.} A. Yes sir.. This is the piece or paper that I observed the Defendant throw over by the stove (indicating}. 9

12 BY MR. DAVIS: Q. All right, sir. MR. INSLEY: Your Honor, I'm going to object to that piece of paper at this point. There has been no testimony that it was even picked up and ta~en to the Police Station. MR. DAVIS: If your Honor please, I think he can identify it at this time. Now, whether or not I may -- or may not introduce it at a later point, I think it would be the proper time for him to object to it. I believe he can -- identify it at this time, as to what -- he observed and if he saw anybody pick it up~ COURT: All right, let you object to it in its form to being introduced as an exhibit. BY MR. DAVIS: Q. This piece of white paper, that was -- A. The top of a folder -- that is used to -- package syringes and needles in the types diabetics use. Q. Where did that come from? A. This was thrown by the Defendant onto the floor by the stove in the kitchen, when Sergeant Farmer and I were coming through the living room. Q. All right, and do you recall who picked that up? A. No sir, I don t. Q. All right. Now, I ask you if you can identify the bottle there (indicating)? A. Yes sir. This is the _bottle that I picked up out of the floor, that the Defendant dropped onto the floor. Q. All right, sir, and did that remain in your possession until you handed it to Sergeant Farmer? 10

13 A. Yes sir. Immediately after picking it up, I handed it to Sergeant Farmer. Q. And without opening the bottle, can you identify those as being the caps on the inside there? A. Yes sir, to the best of my knowledge, they are the type we packed and sent off. Q. Were you present when this was sealed and everything? A. Yes sir, it was done in my presence, and we took it and locked it up in the big vault safe, Police Headquarters. Q. Now, the other object that's in there, can you identify that or not? A. No sir. [Tr. Page 28, Line 16 through Page 36, Line 11]. BY MR. INSLEY: Q. Sergeant Epling, you say that -- when you were knocking on the door, you could see into the living room of the apartment? A. That's right. Q. What did you see after you knocked? A. There was people milling around. Q. Just milling around? A. I couldn't tell where they had come from, but they were going towards the front part of the living room. I just -- got a -- short look. Q. Were they walking? A. Yes sir; fast. Q. They were walking? A. Two of them were -- going pretty fast. Q. How far could you see into the living room through this door; through this curtain over the window? 11

14 A. It's a limited view. You could see - Q. How many people could you see? A. I only remember seeing four. Q. You could see four people? A. That's all I remember seeing, yes. Q. They were milling around and walking in another direction, away from this door? A. Towards the front of the -- living room. Q. What did you say, the front of the living room? A. Right. Q. Who actually knocked on the window? Was it you? A. No, it wasn't me. I don't recall if it was lieutenant Hinman or Sergeant Farmer. It was one of the two. Q. After you saw these people milling around in the living room, nobody answered the door, you went ahead and forced the door open? A. Right. Q. You say you don't remember who knocked on the window? How loud did they knock on the window? A. They knocked loud enough I could hear it okay, without any trouble. Q. Knocked only one time? A. Right. Q. After -- A. It was continuous raps. Knocked one time that I can remember, but it was continuous rap. Q. One sequence. All right. After you went into the front room, where was the Defendant when you first saw him? A. Standing in the kitchen with another man. 12

15 Q. He was standing in the kitchen? A. Right. Q. You came through -- tell me, what is the -- the back door, where do you go from the back door? What is the next -- part of the building from where you went to the back door? A. I really can't tell you, because I was moving when I went through there and I didn t go back and take a good look at it. I went down through a hallway leading right into the living room. Q. living room? A. I didn t notice what was on the right. The bathroom was to the left, before we got to the living room. I remember that much. Q. Did you stop long enough to aid Lieutenant Hinman in opening the bathroom door? A. No sir. Q. You went right into the living room? A. Directly to the living room. Q. Then yo~ saw the Defendant in the kitchen, from the living room? A. Yes sir. Q. When you first saw him? A. That s correct. Q. And you saw one other white male in the kitchen with him? A. That is correct, standing off from him. It was about -- three or four feet. Q. I thought you said, on direct examination, he was standing right beside him? A. They were standing alongside, in close proximity. It was three or four feet. 13

16 Q. All right. Isn't it true that -- there's a partition between the bathroom -- I mean, the kitchen, and the living room? A. Yes, but it doesn't go all the way to the ceiling. Q. I'm sorry, I couldn't hear you. A. It does not go all the way to the ceiling. Q. Does it go a 11 the \'lay to the floor? A. It comes from the floor up, but it doesn't go to the ceiling. It gives you -- a good view of the kitchen area from the living room. Q. How close were you to the Defendant when you say that' he dropped this bottle; the first object he dropped? A. I was about as far as from here to the table (indicating}, when I observed him throw the white piece of paper over by the stove. Q. And you could see where it hit; where it landed? A. I seen where it hit, after I went in. When he threw it over by the stove, it left my vision. Q. It left your vision when it went below the partition? A. The white piece of paper did. Q. And you say he dropped a bottle to the floor also? A. That's correct. Q. Did that leave your vision before it hit your floor, because of the partition? A. No sir, it rolled -- towards me from the direction that I was approaching, off to a slight --right angle from where he was standing; in my general direction. Q. I don't understand how the partition is. Does it go all the way across the kitchen and just a doorway? Is it just a doorway there and the 14

17 rest of it is partition between that and the living room? A. You have the doorway and then the partition comes up like so and goes across (indicating), towards the stove, back to the left, as you re facing the-- the kitchen in the living room. Q. let me ask you this: Is the partition broken anywhere from the floor up to where it stops, except at the -- where you go from the nving room into the kitchen by the doorway? A. I don't understand your question. Q. Is there any oth~r break in the partition besides the doorway from the living room to the kitchen? A. Yes, there s a break that comes up, like so (indicating), and then there s an open area between the top of the partition and the ceiling. Q. No, I don't mean that. I mean -- other than -- other than that, and other than the doorway from the living room to the kitchen, is there any other break? A. I don t recall what was back to the right. Q. You say when the Defendant dropped this bottle, it rolled toward you? You were in the living room? A. Yes; like he was standing here (indicating), the bottle rolled off like this (indicating), and I was standing here (indicating), comi~g --not standing, but coming towards him. It tame rolling in my general direction. Q. You actually see what was dropped? A. Yes sir. Q. You didn t actually see it when it hit the floor? A. Yes sir. Q. Sergeant Epling, isn t it actually true, when you came into the kitchen, these objects were already in the floor and that this raiding party was common knowledge among the Policemen, Edgar Hunter had at least some 15

18 reputation for being a dealer, and when you walked in, you reached him the bottle and said, "I'm giving 'you' to you Edgar?'' You dictn t actually see anyone drop it? A. I observed the Defendant reach into his pocket, take it ou~, and take it out, and reach down and drop it onto the floor. Q. Can you see through this partition when it hit the floor? A. It wasn't behind the partition. I was observing him through the doorway, when he dropped the bottle; the Coricidin bottle onto the floor. Q. Can you describe to me, why it is that you cannot see the piece of paper when it hit the floor and you could see the bottle? A. Right where he threw the paper was back by the stove, behind the partition and when he threw the paper over, it went out of my line of vision; the paper. He stepped back a couple of steps when he reached into his pocket and took the Coricidin bottle out with the capsules, and dropped it. Q. Was he standing side to you? A. No sir, he was standing facing me. Q. Front-on; standing front-on, to you? A. Right. Q. Looking face-to-face? A. That's correct. I actually got to him before Sergeant Farmer did; to where he was standing. MR. INSLEY: I can't hear you. A. I got to where he was standing before Sergeant Farmer did. I was reaching for it and Sergeant Farmer was reaching for it at the same time. VI. SERGEANT M. B. FARMER [Tr. Page 36, Line 23 through Page 43, Line 8 and Page 43, Line 15 through Page 48, Line 11]. 16

19 SERGEANT M. B. FARMER, called as a witness by the Commonwealth, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. DAVIS: Q. All right, sir, state your full name and occupation. A. My name is M. B. Fanmer. I'm a Detective Sergeant for the Newport News Police Department. Q. Sergeant Farmer, were you on duty at the 5th of December, 1970? A. Yes sir, I was. Q. And you have occasion, along with -- Lieutenant Hinman and Sergeant Epling, to go to 868 Arnold Street, located in the City of Newport News? A. Yes sir. Q. And will you tell the Court what you observed, if anything, after you arrived therein, in reference to this charge here today? A. Upon arriving there, Lieutenant Hinman and Sergeant Epling, and I, went to the rear door of 868 Arnold Street, and through the rear door and the window next to the door, we could observe some people inside of the Arnold, and after knocking at the apartment a.couple of times, the people started moving around in the apartment and no one would c~e to the door, so we forced the door open, and upon entering the apartment, Sergeant Epling and I went directly into the living room portion of the apartment. Upon entering the living room, I observed three of four subjects seated in the living room, and I observed Edgar Hunter and another subject, known to us as 11 Tiny, 11 standing in the kitchen. The kitchen is --adjacent to the living room, and it is only separated by a small bar which goes about 17

20 halfway to the ceiling. As we entered the living room, I observed Mr. Hunter toss a large white piece of paper onto the floor beside of a stove in the kitchen. was walking toward him at the time, and when he threw this paper, I continued on toward him, with Sergeant Epling, and as I did, Mr. Hunter took a couple of steps back and reached his right hand into the coat pocket of an army field jacket which he was wearing. He pulled his hand out and held it down by his side, and dropped a small bottle onto the floor. Sergeant Epling and I had reached just about where he was at this time, and we both reached for this bottle which he dropped onto the floor, and Sergeant Epling picked it up and handed it directly to me. I checked the bottle and found it was a Coricidin bottle and that it contained a large quantity of white capsules. I then retrieved the piece of paper which Mr. Hunter threw onto the floor, and I found that it contained a needle, a syringe and a needle cover on it. Also lying on the floor, beside of this piece of paper, was a bottle cap which had a residue in it and a piece of cotton with -- which was wet and had some blood on it. I then advised Mr. Hunter that he was under arrest for violation of the Drug Control Act of Virginia, and also of his rights. I retained possession of the evidence which was recovered, brought it to the Police Station, where Sergeant Epling and I both marked the Coricidin -; bottle and the white paper which I recovered, marked it for identification purposes. I then conducted a field test, chemical field test on the -- one. of the capsules which I removed from the Coricidin bottle, which proved positive to the test for heroin. I counted the capsules which was inside the Coricidin bottle and found it contained 71, all containing a white powdery substance. I I filled out a 18

21 brown envelope, which I marked as evidence in the case of Edgar Wardell Hunter, which was charged with violation of the Drug Control Act of Virginia. Sergeant Epling and I both marked this for identification purposes. I then sealed the envelope and placed it into the Police vault about 11:50 p.m. Q. And what kind of condition was it in; this envelope in, when you placed it in the Police vault? A. It was in a sealed condition. Q. I show you this envelope, which has previously been introduced as Commonwealth Exhibit Number One, for Identification Purposes, and ask you if you can identify that envelope? (At this time the exhibit was handed to the witness for his perusal.) A. Yes sir, I can. BY MR. DAVIS: Q. And what envelope is that -- Sergeant Farmer? A. This is a brown envelope, which is marked as evidence in the case of Edgar Wardell Hunter. It is filled out in my handwriting. It is signed by --me; my signature, and also the signature of Sergeant Epling. Q. I ask you to open that envelope, which has previously been opened by Sergeant Epling, and ask you if you can identify its contents? (The witness compled with the request of counsel.) A. Yes sir. The brown envelope contains a -- a white packet. It s a plaster pack, disposable-type package for a syringe and needle. This is the syringe -- this is the paper wnich contained the syringe and needle, which I recovered in _the apartment at 868 Arnold Street. It is identified by my name and the date. 19

22 The envelope also contains a bottle cap, which has cotton inside of it. It is also -- it also has my initials scratched on the back of the bottle cap. MR. INSLEY: Your Honor, at this time, I'll object to the bottle cap coming into evidence, concerning the charge of possession with the intent to distribute. There's been no evidence this was even in the possession of Mr. Hunter and there were nine -- eight or nine other people in the apartment at the time. There has been no connection between him and this bottle cap. COURT: I understood the witness to testify that the accused threw.the syringe and paper, and bottle cap toward the stove. MR. DAVIS: No sir. MR. INSLEY: Only the paper. A. I did not see the bottle cap. I saw the piece of paper. I saw it thrown onto the floor, but I did not see the bottle cap thrown to the floor. MR. DAVIS: If your Honor please, at this point, I haven't really attempted to offer those other items into evidence; any of them, at this point; just for identification purposes only. COURT: Wait until the Officer finishes. BY MR. DAVIS: Q. All right. I ask you if you can identify that? A. Yes sir. The envelope also contains the Coricidin bottle, which contains a quantity of white capsules. This is also marked with my name and the date. Q. All right, sir, and what -- did you seal that -.A. I did. Q. Sergeant Farmer? A. Yes sir, I did. I sealed it with the tape that's around it. 20

23 .MR. DAVIS: I ask you to put those three items which you have identified back into the brown envelope. (The witness complied with the request of counsel.) BY MR. DAVIS: Q. These items remain in your possession from the time you received them until you placed them in the Police vault? A. Yes sir, they did. [Tr. Page 43, Line 15 through Page 48, Line 11] BY MR. INSLEY: Q. Sergeant Farmer, you came to the back door of this apartment? A. Yes sir, I did. Q. And who knocked on it? A. I think Lieutenant Hinman and I both knocked on the door. Q. At the same time? A. I think Lieutenant Hinman knocked at the door the first time and I knocked -- a few seconds later. Q. After you knocked a second time, what did you see in the apartment? A. You could see people starting to move around; people starting to scramble inside. Q. What do you mean by, "scramble 11? A. They started just moving around in the apartment. I could not see everyone in the apartment. I could only see about -- three or four people, due to the fact of the way -- the window that we were looking through was located. Q. And you saw these people, you say, moving around. Were they running, walking, or what? 21

24 A. They wasn t running. They appeared to be walking; what I saw. Q. Then you forced the door open and went on into the back; is that correct; went on through the back door? A. Yes sir. Q. The three Officers and -- did you go down the hallway; is that correct? A. You go through the living room into the hallway, and the living room is located right off the hallway, and so is the back bedroom. Q. Where is the bedroom, I mean, the bathroom? A. As you go in and -- through the bedroom door, it's located right at the end of the hall there. Q. So as you go in the back door, you are in the hallway; is that correct? A. No sir, you re not in the hallway. Q. You go directly into the living room by the back door? A. No sir, you go into the bedroom from the back door. Q. And where -- did you go into the bedroom? Where is the bathroom, next door down? A. You come back out of the bedroom and the bathroom is immediately to the left of the bedroom. Q. And who stopped there at the bathroom? A. Lieutenant Hinman went -- went in that direction and we continued on into the living room. Q. When you came into the living room, what did you see? A. I saw three or four people in the living room. One was -- at the front door and there was either two or three others seated -- in the living

25 room, and Mr. Hunter and Jimmy Barbara was standing in the kitchen. Q. How close were they, the Defendant and this Jimmy? A. Three or four feet apart. Q. As you were coming across the living room, you say you saw the Defendant drop something? A. I saw him toss this -- a white piece of paper, which I found later to be this syringe and needle. Q. Did you see that when it hit the floor? A. Yes, I did. Q. You could see -- the syringe; this piece of paper hit the floor in the kitchen? A. I can see it hit the floor, yes sir. Q. How could you do that, if there's a partition? A. The stove is right next to the edge of the partition. It's a very small partition and this stove and the kitchen is also very, very small, and the appliances there take up just about the entire floor space of the.-kitchen. Q. Then you went in through the opening behind the -- Sergeant Epling into the -- into the kitchen? Who went into the kitchen first? A. Epling and I entered about the same time. The entrance into the kitchen is -- is fairly wide there. It's like I said, it's a very small kitchen and a very small bar that separates the kitchen from the living room. Q. Sergeant Epling, I mean, Sergeant Farmer, isn't it true, when you went in there that -- Sergeant Epling actually said --you didn't actually see anything drop to the floor when you got in there, that Sergeant Epling said, 11 1'm going to give this bottle to you, Edgar;u actually these things were on the floor when you came in there? You didn't see anyone drop them? 23

26 A. I 1 m sorry. I don t understand your question. Q. Isn t it true that -- when you went into the living room and got into the kitchen, you didn 1 t see anyone drop these things on the floor, and after you got there, Sergeant Epling picked this bottle up and gave it to Edgar Hunter, and said, 11 Edgar, I'm going to give this to you 11? A. No, I saw someone drop it on the floor. I did~.not hear Epling make such a statement. Q. Vou... saw someone? You saw the Defendant? A. I saw Hunter drop it on the floor. Q. Did you also see him drop the bottle, you say? A. The bottle, yes sir. Q. Where as he -- standing in relation to you, when he did that? A. He was standing almost directly in front of me, about -- four or five feet away, I guess. Q. And he was facing you? A. He was facing me, yes sir. I was walking directly toward him at the time. Q. Did you actually, on this occasion, see -- Edgar Hunter distribute any drugs to anyone? A. No sir, I did not. VII. DANIEL GRINNAN, JR. [Tr. Page 48, Line 19 through Page 51, Line 12 and Page 53, Line 17 through Page 54, Line 17]. DANIEL GRINNAN, JUNIOR, called as a witness by the Commonwealth, being duly sworn, testified as follows: DIRECT EXAMINATION 24

27 BY MR. DAVIS: Q. State your full name and occupation, please, sir. A. My name is Daniel Grinnan, Junior, and I~m a Drug Chemist with the Virginia State Board of Pharmacy. Q. All right, sir. MR. INSLEY: Your Honor, rve already heard the qualifications of the witness. I'll waive those. COURT: All right. BY MR. DAVIS: Q. Did you have occasion to examine the evidence in this matter before the Court here today, Mr. Grinnan? A. Yes sir, I did. Q. All right, sir. I show you this envelope which has previously been introduced as Commonwealth Exhibit Number One, for Identification Purposes. I want to ask you if you can identify that envelope and its contents? (At this time the exhibit was handed to the witne$for his perusal.) A. Yes sir, I can. The envelope bears my initials, and also bears the analytical number to which I assigned this particular case. I received the -- the envelope in a sealed condition. When I received it, it contained one glass bottle, containing 71 clear capsules of white powder, one bottle top with cotton, and a crystalline resfdue, and one white syringe envelope containing one plastic syringe and needle, and needle cover. BY MR. DAVIS: Q. Who did you receive these items from? A. I received these from Lieutenant C. E. Hinman, of the Newport News Police Department,and I received them on December 7th, of last year, at approximately 3:00p.m., in Newport News. 25

28 Q. And did you have occasion to, after you received these items, to examine them? A. Yes sir, I did. I returned to the lab in Richmond, and analyzed the contents of the brown envelope. I found that the white powder in the 71 capsules did respond positively to the qualitative test for heroin, diacetylmorphine, a narcotic and Schedule One drug. Q. All right, sir. A. The residue in the bottle top, I found to contain an opium derivative. Q. How about anything in the syringe? A. I didn t find anything in the syringe. Q. What did you do with these items, from the time you received them from Lieutenant Hinman, until you arrived in Court here today? A. I kept the items in my possession or control. When I say. 11 control, 11 I kept them in a locked compartment within a safe at the lab, and I have the only key to that compartment, or I kept them in a briefcase while traveling to Court, and I have the key to that briefcase,_ and then I turned it over to the Clerk, in a sealed condition. [Tr. Page 53, Line 17 through Page 54, Line 17]. CROSS EXAMINATION BY MR. INSLEY: Q. Mr. Grinnan, you say that -- you received these -- this bottle with the 71 capsules within it? A. Yes sir, that s correct. Q. And did you actually count these capsules; how many there are? A. Yes sir, I did. Q. How long does it take for -- to run a test on any heroin sample? 26

29 A. Well, of course, that depends on the size of the sample. Seventy-one capsules would certainly take longer than the -- say another sample that only had -- oh, ten or so caps in it. On each capsule, I run a series of four chemical tests and each one of these tests requires a relatively short space of time; just a matter of a few seconds, but - the total amount of time required on 71 caps would be probably close to half a day or -- in that range. Q. You did test all 71 capsules? A. Yes sir, I did. MR. INSLEY: I have no further questions, your Honor. COURT: Stand down. MR. DAVIS: The Commonwealth rests. VIII. ARGUMENTS OF COUNSEL [Tr. Page 57, Line 5 through Page 57, Line 14; Page 57b, Line 13 through Page 57e, Line 16 and Page 58, Line 18 through Page 59, Line 5]. MR. INSLEY: I'd ask the Court to strike the evidence of the Commonwealth and dismiss these cases. First of all, on the grounds of forcible entry, and also on the grounds that they haven't carried the burden with regard to possession with intent to distribute, and at best, they have shown a possession. That's all I have, your Honor, at this point. [Tr. Page 57b, Line 13 through Page 57e, Line 16]. MR. DAVIS: If your Honor please, the cases on this forcible entry say the reason that the Officers could forcible "entry,n because there's no Constitutional guarantee for Defendants to destroy or conceal evidence; and as far as the charge of possession, with the intent to distribute, I would submit the Court has heard a lot of cases dealing with drugs, and 27

30 Mr. Insley, 1 1 m sure he s tried cases here, and would not want the Court, to have the Court believe these drugs belonged to anyone else. Seventy-one caps, they would just pass them around? They might give him one, but it is contrary to human nature, someone in possession of 71 caps, say: "Here, take the whole bottle. Use how many you want, and give it back to me... ThatScontrary to human nature. Two Officers testified they saw these 71 caps in the Coricidin bottle, and come from the Defendant, and he eased them down, and they dropped on the floor. From the number here, we have proven possession, with intent to distribute. COURT: I overrule your motion and note your exception, for the record. MR. INSLEY: Your Honor, the Defendant has no evidence to produce. However, I 1 d like to renew my motion again, regarding the same arguments and also would like to state that I feel the Statute involved here, concerning the possession with the intent to distribute, especially on the facts of this case, I believe it s unconstitutional, as being a violation of the due process of someone's rights, when you can infer that because someone has a bottle of so many capsules of heroin, and the police break in at one particular time, and there are ten other -- eight or nine other people in the apartment that might have had this bottle some other time, that you can infer that this person had this with the intent to distribute it. I feel this is a violation of the due process, and I would ask the Court to -- to set -- to strike the evidence and so decide. Because of this factor, it would be in violation of my client's Constitutional rights, as well as the -- 28

31 I feel that -- this particular statute also violates the Constitutional right; when it gives to the Judge the authority to determine what the quantity of the particular -- how much a particular drug should be enough for a person to have the intent to distribute, when they just possess it. And I feel if this statute is upheld, you're going to get different justice from one Courtroom to the other, depending on the experience of the Judge, and the environment the Judge came from. I feel that the statute is unconstitutional, because it doesn t give enough standards within it, for the Judge to goqy, and that-- when the Judge enforces this type of Statute, that he is, in essence, legislating, himself. [Tr. Page 58, Line 18 through Page 59, Line 5]. MR. INSLEY: After renewing my motion, I have to renew my motion to strike the evidence, after the Defense rests. I make a motion to set aside the verdict as conti"ary to the law and the evidence, and I wou ld just submit on the arguments I made before, that -- I don't believe that the Defendant has been shown to be guilty of this particular crime, beyond a reasonable doubt, and for this reason, I feel the Court should dismiss his case. IX. OPINIONS OF THE COURT [Tr. Page 59, Line 6 through Page 59, Line 9 and Page 62, Line 17 through Page 62, Line 25]. COURT: I overrule your motion and note your exception. All right, Mr. Davis, what do you want to recommend? [Tr. Page 62, Line 17 through Page 62, Line 25]. COURT: Do you know of any reason, now, why the Court should not pass sentence on you? 29

32 MR. EDGAR WARDELL HUNTER: No. COURT: r m going to sentence you to the penitentiary for a period of four years, which will not run concurrently with any other time you might be required to serve. * * * * 30

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