April Nicole Corsaro v. Commonwealth of Virginia ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey, McClanahan,
Haley, Petty and Beales
Argued at Richmond, Virginia
APRIL NICOLE CORSARO
MEMORANDUM OPINION * BY
v. Record No. 1269-05-2 JUDGE RANDOLPH A. BEALES
NOVEMBER 6, 2007
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF MADISON COUNTY
Herman A. Whisenant, Jr., Judge Designate
Kevin E. Smith (Smith & Greene, P.L.L.C., on brief), for appellant.
Alice T. Armstrong, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
A jury convicted April Nicole Corsaro (appellant) of possession of cocaine and conspiracy
to distribute the same. Appellant asserts the trial court erred 1) in violating her constitutional right
to confront witnesses and 2) in denying her motion to strike the evidence on the conspiracy charge.
Agreeing with appellant on her second assignment of error, a divided panel of this Court reversed
appellant’s conviction for conspiracy to distribute cocaine. Corsaro v. Commonwealth, No.
1269-05-2 (Va. Ct. App. Nov. 14, 2006). Upon granting the Commonwealth’s petition for a
rehearing en banc, we stayed the mandate of the panel decision. After consideration from the full
Court and for the reasons that follow, we affirm appellant’s conviction.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
“Applying well-established principles of appellate review, we must consider the evidence
and all reasonable inferences fairly deducible therefrom in the light most favorable to the
Commonwealth, the prevailing party below.” Walker v. Commonwealth, 272 Va. 511, 513, 636
S.E.2d 476, 477 (2006). “That principle requires us to discard the evidence of the accused in
conflict with that of the Commonwealth and to regard as true all the credible evidence favorable
to the Commonwealth and all fair inferences that may be drawn therefrom.” Guda v.
Commonwealth, 42 Va. App. 453, 455, 592 S.E.2d 748, 749 (2004).
On April 14, 2004, Investigator Garry W. Harvey, a lieutenant with the Madison County
Sheriff’s Office and member of the Blue Ridge Narcotics Task Force, received a tip from a
confidential informant about an impending drug transaction. Based on this information, officers
from the task force proceeded to a 7-Eleven store off Route 29 in Madison County and awaited
the arrival of a maroon Chevy Blazer, purportedly driven by a white female named April.
Fauquier County Detective Timothy Chilton, a task force member, testified that he was familiar
with both this woman, April Corsaro, and this particular maroon Blazer, since “[t]he individual
that owned the vehicle had actually cooperated with the task force before on numerous
occasions.”
At approximately 10:00 p.m., a maroon Chevy Blazer arrived in the parking lot of the
7-Eleven. Officers surrounded the vehicle and detained the driver, whom Harvey and Chilton
identified at trial as appellant. According to Harvey, appellant “made a voluntary statement at
that point. She said, I’ll do anything. I don’t have it on me, but I’ll take you to get it.” Harvey
advised her to remain quiet and administered the Miranda warnings.
Thereafter, according to Officer Harvey, appellant “advised [Harvey] that she had come
out to deliver two hundred dollars ($200) worth of cocaine to a guy named Allen. She said --
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stated that she didn’t have the cocaine on her but she was going to pick up this Allen guy and
take him to a guy by the name of J-Rock in Culpeper.” Harvey testified that, through his
“connection with the [narcotics] task force,” he knew of a Jason Washington in Culpeper County
who used the name “J-Rock.” Harvey also recounted that officers found a beer can with ashes
inside the Blazer and that appellant “advised [him] that she had smoked crack out of that can
prior to arriving to 7-Eleven.” A certificate of analysis introduced at trial confirmed the
substance in the can was crack cocaine.
At trial, appellant interposed an objection during Harvey’s testimony “to information he
simply received from another individual.” Appellant further argued that, “unless that
individual’s here to testify, I would object to the hearsay evidence.” The trial court noted that
the testimony would not be considered for its truth, but it would be admitted to show how
Harvey proceeded.
At the close of the Commonwealth’s case, appellant moved to strike the evidence on the
conspiracy charge, arguing that there was “absolutely no evidence, whatsoever, that she met
with, talked to, agreed with anybody about anything as far as any kind of drug transaction . . .
other than a confession.” The trial court denied the motion, stating
there is sufficient corroboration that has been shown by the mere
fact that, not only did she arrive in the vehicle at the time, the
location, as was going to be indicated, but she had drugs in the car
at that particular time, and she also stated that the drugs were there
and she’s used the drugs -- smoked the drugs from the can prior to
coming there.
ANALYSIS
I.
In her first question presented, appellant contends “the trial court violated [her]
Constitutional right to confront witnesses against her in allowing prosecution witnesses to testify
about information that was provided to them by a confidential informant who was not present and
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did not testify at the trial . . . .” Appellant, though, only offered a general hearsay objection to
testimony concerning the confidential informant. That testimony was admitted for the limited
purpose of describing the progression of events and the police officers’ subsequent actions.
Appellant at no point during her trial alleged a violation of the Confrontation Clause.
Pursuant to Rule 5A:18, ‘“The Court of Appeals will not consider an argument on appeal which
was not presented to the trial court.’” Peake v. Commonwealth, 46 Va. App. 35, 42-43, 614
S.E.2d 672, 676 (2005) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d
484, 488 (1998)). 1 For that reason, our consideration of this issue is procedurally barred. 2
II.
Appellant framed her second question presented as follows: “Whether the trial court
erred in denying [her] motion to strike the Commonwealth’s evidence as to the conspiracy
charge when it ruled that Appellant’s confession was corroborated by the hearsay evidence of the
confidential informant.” At oral argument, appellant conceded that her statement to police
constituted a full confession to the crime of conspiracy to distribute cocaine, and, consequently,
only slight corroborative evidence was necessary to establish that confession’s veracity. See
Powell v. Commonwealth, 267 Va. 107, 145, 590 S.E.2d 537, 560 (2004) (“Although the
1
While Rule 5A:18 allows exceptions “for good cause shown” or “to attain the ends of
justice,” appellant does not ask this Court to invoke either of those exceptions here. “In order to
avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice
has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). “We will not consider, sua sponte, a
‘miscarriage of justice’ argument under Rule 5A:18.” Edwards v. Commonwealth, 41 Va. App.
752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
2
Appellant argues that the words “unless that individual’s here to testify” adequately
preserved the Confrontation Clause issue. We reject that argument as the objection was
presented as a simple hearsay objection and further note that appellant never sought a ruling
from the trial court on a Confrontation Clause issue, as required by Rule 5A:18. See Singleton v.
Commonwealth, 19 Va. App. 728, 735, 453 S.E.2d 921, 926 (1995) (noting that Rule 5A:18
applies to “even a constitutional question”).
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Commonwealth may not establish an essential element of a crime by the uncorroborated
confession of the accused alone, ‘only slight corroborative evidence’ is necessary to show the
veracity of the confession.” (quoting Williams v. Commonwealth, 234 Va. 168, 175, 360 S.E.2d
361, 366 (1987))). Following this concession, appellant urged us to hold that the record contains
absolutely no evidence that could corroborate her confession.
Appellant, in her question presented on this issue, challenges only the trial court’s
reliance upon hearsay evidence that described information supplied by the confidential
informant. We agree with appellant that the trial court improperly considered this evidence, which
was admitted not for its truth, but instead to show the progression of events. However, appellant
failed, in her questions presented, to challenge the trial court’s alternate holding on the
corroboration issue, namely that appellant “had drugs in the car at that particular time, and she
also stated that the drugs were there and she’s used the drugs -- smoked the drugs from the can
prior to coming there.” In other words, appellant did not allege in her questions presented to this
Court that the trial court erred in finding that the physical evidence seized from appellant’s
vehicle provided the slight evidence necessary to corroborate the veracity of her full confession,
nor did she dispute that either Officer Harvey’s prior knowledge of “J-Rock” as Jason
Washington of Culpeper County or Officer Chilton’s familiarity with her and the vehicle she was
driving could supply the slight corroboration needed.
We hold that “appellant’s ‘failure to address one of the [trial court’s alternate] holdings
results in a waiver of any claim of error with respect to the court’s decision on that issue.’”
Johnson v. Commonwealth, 45 Va. App. 113, 116, 609 S.E.2d 58, 60 (2005) (quoting United
States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001)). See also Rule 5A:12(c) (“Only
questions presented in the petition for appeal will be noticed by the Court of Appeals.”). “That
said, we still must satisfy ourselves that the alternative holding is indeed one that (when properly
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applied to the facts of a given case) would legally constitute a freestanding basis in support of the
trial court’s decision.” Id. Given that only slight evidence is needed to establish the veracity of
appellant’s full confession, we find that the trial court’s alternate holding could independently
satisfy that legal standard. Consequently, we find appellant’s failure to assign error to the trial
court’s alternate holding in her question presented, or even to include a general allegation that
the record does not contain the slight evidence necessary to corroborate her confession, is
dispositive of this issue.
IV.
For the foregoing reasons, appellant’s conviction is affirmed.
Affirmed.
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VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 13th day of February, 2007.
April Nicole Corsaro, Appellant,
against Record No. 1269-05-2
Circuit Court Nos. CR4146 and CR4147
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On November 28, 2006 came the appellee, by the Attorney General of Virginia, and filed a
petition requesting that the Court set aside the judgment rendered herein on November 14, 2006, and
grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered
herein on November 14, 2006 is stayed pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is
established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of
entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within 14 days of the
date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc
within 14 days of the date on which the appellee’s brief is filed. The appellant shall attach as an
addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the
appendix previously filed in this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Beales
Argued at Richmond, Virginia
APRIL NICOLE CORSARO
MEMORANDUM OPINION * BY
v. Record No. 1269-05-2 JUDGE JAMES W. BENTON, JR.
NOVEMBER 14, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MADISON COUNTY
Herman A. Whisenant, Jr., Judge Designate
Kevin E. Smith (Smith & Greene, P.L.L.C., on brief), for appellant.
Alice T. Armstrong, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
April Nicole Corsaro appeals her conviction for conspiracy to distribute a controlled
substance. She argues that the trial judge violated her constitutional right of confrontation,
impermissibly allowed the prosecutor to use evidence testimonially despite the trial judge’s
earlier ruling limiting it to a non-assertive purpose, and erred in denying her motion to strike the
Commonwealth’s evidence. We hold that the trial judge should have granted Corsaro’s motion
to strike due to insufficient evidence to corroborate her confession. Thus, we reverse the
conviction.
I.
A grand jury indicted April Nicole Corsaro for possession of cocaine and conspiracy to
distribute cocaine. At trial, the prosecutor offered evidence to prove the police conducted
surveillance at a convenience store in response to information received from an informant.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Corsaro’s attorney objected on the basis of hearsay to the testimony regarding the informant’s
statements. When the prosecutor told the trial judge that the statements explained why the police
were at the convenience store, the trial judge allowed the evidence. A police officer then
testified the members of a narcotics task force went to a specific convenience store due to an
informant’s report that a woman named April would arrive in a red or maroon Chevy Blazer to
deliver cocaine valued at $200 to an individual.
When Corsaro arrived at the store in the maroon vehicle, the police drew their weapons
and detained Corsaro. Detective Harvey testified “[s]he said, I’ll do anything. I don’t have it on
me, but I’ll take you to get it.” After the detective advised Corsaro of her Miranda rights, she
made the following statement:
She advised me that she had come out to deliver two hundred
dollars ($200) worth of cocaine to a guy named Allen. She said
. . . she didn’t have the cocaine on her but she was going to pick up
this Allen guy and take him to a guy by the name of J-Rock in
Culpeper, who we know a J-Rock to be a guy by the name of Jason
Washington and he lived in Culpeper County.
The detective explained that he knew of Washington through the narcotics task force.
In the vehicle, police found a beer can that had been fashioned into a smoking device.
The can had cocaine residue. Corsaro admitted that she had used it to smoke cocaine prior to her
arrival at the store.
At the conclusion of the Commonwealth’s evidence, Corsaro moved to strike the
evidence on the conspiracy charge. The trial judge denied the motion, citing as “sufficient
corroboration . . . that . . . she arrive[d] in the vehicle at the time, at the location, as was going to
be indicated, . . . she had drugs in the car at that particular time, and she also stated that the drugs
were there and she’s used the drugs . . . prior to coming there.”
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At the conclusion of the evidence, the jury convicted Corsaro of possession of a
controlled substance and conspiracy to distribute a controlled substance. Corsaro’s petition for
appeal was granted only with regard to the conspiracy conviction.
II.
Corsaro argues no evidence in the record corroborated her confession and, therefore, the
trial judge erred in not granting her motion to strike. The Commonwealth responds that five
different pieces of evidence corroborate the existence of an agreement between Corsaro and
Jason Washington to distribute cocaine: Corsaro’s presence as foretold by the informant, her
confession, her possession of a cocaine-smoking device, a police officer’s familiarity with
Washington’s name, and a police officer’s familiarity with the vehicle that Corsaro drove.
The following principle is well settled in Virginia:
The material fact in every criminal prosecution is the corpus
delicti. Proof of the charge, in criminal causes, involves the proof
of two distinct propositions; first, that the act itself was done; and
secondly, that it was done by the person charged.
Smith v. Commonwealth, 62 Va. (21 Gratt.) 809, 813 (1871); see also Maughs v. City of
Charlottesville, 181 Va. 117, 120, 23 S.E.2d 784, 786 (1943) (reversing a conviction where the
evidence did not prove the corpus delicti). It is equally “‘settled in this State that the corpus
delicti cannot be established by the extra judicial confession of an accused uncorroborated by
other evidence.’” Phillips v. Commonwealth, 202 Va. 207, 211, 116 S.E.2d 282, 285 (1960)
(quoting Wheeler v. Commonwealth, 192 Va. 665, 669, 66 S.E.2d 605, 607 (1951)). To obtain a
conviction upon the accused’s extrajudicial confession, the evidence “must corroborate the
elements of the corpus delicti.” Roach v. Commonwealth, 251 Va. 324, 344, 468 S.E.2d 98, 110
(1996), overruled in part on other grounds by Morrisette v. Warden of the Sussex I State Prison,
270 Va. 188, 613 S.E.2d 551 (2005). Indeed, as the Supreme Court has noted, “‘[t]he confession
must be corroborated in a material and substantial manner by evidence aliunde of the corpus
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delicti.’” Phillips, 202 Va. at 211, 116 S.E.2d at 284 (citation omitted). In other words, there
must be evidence from a source other than the confession that the crime was a real event and not
merely the product of the accused’s imagination or fantasy.
This appeal concerns Corsaro’s conviction for “conspir[ing] . . . with one or more other
persons to manufacture, sell, give or distribute a controlled substance . . . in violation of [Code §]
18.2-248.” The definition of “‘[c]onspiracy is an agreement between two or more persons by
some concerted action to commit an offense.’” Falden v. Commonwealth, 167 Va. 542, 544, 189
S.E. 326, 327 (1937). To establish a conspiracy to distribute a controlled substance, the
“Commonwealth ha[s] to prove beyond a reasonable doubt that an agreement existed . . . to
distribute drugs.” Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973). The
existence of an agreement to distribute a controlled substance is the essence of the offense. See
Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48 (1991) (reversing the
conspiracy conviction when the other parties to the alleged agreement never intended to actually
distribute drugs).
Opposing Corsaro’s motion to strike, the prosecutor suggested that Corsaro’s arrival at
the location in Madison County where an informant told the officers she would be corroborated
her confession. The prosecutor argued Corsaro arrived where the officers “expected her to be”
and at the time the officers “had expected.” On appeal, the Commonwealth again argues that
“the jury could reasonably infer from [Corsaro’s] presence at the appointed time and place that
Corsaro had agreed . . . to facilitate or participate in the sale of crack cocaine.” The trial judge
ruled, however, the evidence from the police officers regarding the informant’s statements was
admissible only for a limited purpose. Indeed, the trial judge permitted the evidence after the
prosecutor indicated it was offered only to “stat[e] what [the officers] were doing, why they were
there, and what they were looking for.” The trial judge later reiterated that the evidence was
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admitted “not for the truth of what it is but for the reason [the detective] did what he did at that
time.” See Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960) (holding
that evidence that is otherwise hearsay may be admitted for the limited purpose of explaining the
conduct of police officers); Speller v. Commonwealth, 2 Va. App. 437, 446, 345 S.E.2d 542, 548
(1986) (noting that a limitation to proof of a fact and not the truth of an assertion renders
evidence non-hearsay). In view of this limitation, any consideration of the truth of the matters
asserted by the informant to corroborate Corsaro’s confession would be an impermissible use of
the evidence as testimonial evidence. See Donahue v. Commonwealth, 225 Va. 145, 151-52,
300 S.E.2d 768, 771-72 (1983) (noting that the limitation on the use of hearsay evidence was
improperly disregarded).
Second, the Commonwealth asserts that statements in Corsaro’s confession corroborate
her confession. Noting that Corsaro spontaneously said, “I’ll do anything. I don’t have it on me
but I’ll take you to get it,” and that the “confession contained an explanation for her presence . . .
at that location,” the Commonwealth argues the jury could infer that Corsaro “knew why the
police stopped her” and could further infer that Corsaro “had agreed . . . to facilitate or
participate in the sale of . . . cocaine.” Simply put, this argument runs counter to the Supreme
Court’s holding that the confession must be corroborated from another source. Phillips, 202 Va.
at 211, 116 S.E.2d at 284. Corsaro’s confession is not evidence aliunde, evidence from another
source. The notion that the Commonwealth can use the confession itself to corroborate the
confession defies both logic and this state’s well-settled principles.
Third, the Commonwealth posits the confession was corroborated by Corsaro’s
possession of a beer can, which had been improvised to use as a smoking device and contained
cocaine residue. The Commonwealth contends that this evidence supplies a basis upon which
the jury could draw the “inference that Corsaro agreed to participate in the drug sale in order to
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feed her own drug habit.” The principle is well established, however, that a jury cannot “grope
in the realm of speculation for an inference or inferences not supported by facts proved from
evidence presented.” Lugo v. Joy, 215 Va. 39, 42, 205 S.E.2d 658, 661 (1974). Corsaro’s
possession of a can fashioned into a smoking device only tended to establish that she was a user
of cocaine. This was the basis upon which the jury convicted her of possession of cocaine, but it
proved nothing about an agreement to distribute cocaine. The inference the Commonwealth
supports could only have arisen if the jury impermissibly engaged in speculation and conjecture.
Fourth, the Commonwealth relies upon Detective Harvey’s testimony that he learned of
Washington’s name through his connection with a narcotics task force. The Commonwealth
asserts that the “jury could reasonably infer from this testimony Corsaro had, in fact, agreed with
[Washington] to participate in the proposed sale of cocaine.” Yet, the detective testified only
that he knew “a J-Rock to be a guy by the name of Jason Washington and he lived in Culpepper
County” and that he knew Washington through his work on the narcotics task force. The
conclusion that the Commonwealth asserts required the jury to speculate that only one person
was known as “J-Rock” in Culpeper County. More importantly, the detective’s awareness of
Washington through the task force does not lead to the conclusion that Washington was involved
with the illegal distribution of drugs. His knowledge of Washington through the task force is just
as consistent with Washington being engaged in innocent conduct as with criminal activities.
See Phillips, 202 Va. at 212, 116 S.E.2d at 285 (holding that the truth of the confession is not
fortified by facts “just as consistent with non-commission of the offense as . . . with its
commission”). For instance, if Washington worked in the task force office as a custodian or
secretary, or if he delivered supplies or mail to the office, the detective would still know of him
through his connection with the narcotics task force. The detective’s testimony merely suggested
a myriad of possibilities, requiring the jury to engage in pure speculation. Inferences cannot be
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founded upon mere guesswork. Lugo, 215 Va. at 41-42, 205 S.E.2d at 661; see also Holland v.
Commonwealth, 190 Va. 32, 39-40, 55 S.E.2d 437, 440-41 (1949) (reversing a conviction where
it was based on unwarranted presumptions of fact).
Fifth, the Commonwealth contends corroboration of the corpus delicti was provided by
Detective Chilton’s testimony that he was familiar with the vehicle Corsaro was driving because
the vehicle’s owner had “cooperated with the [narcotics] task force . . . on numerous times.” The
Commonwealth argues the jury could infer from this testimony “that the [vehicle] was being
used for an intended drug transaction.” This argument likewise supposes that the jury could
engage in speculation and conjecture about unproven allegations concerning the vehicle’s owner
and Corsaro’s use of the vehicle. Furthermore, any inference drawn from the cooperation of the
vehicle’s owner with the police could not suggest the existence of an agreement between Corsaro
and Washington to distribute cocaine. The best that could be said about this evidence as
corroboration of a conspiracy is that it was “just as consistent with non-commission of the
offense as it is with its commission.” Phillips, 202 Va. at 212, 116 S.E.2d at 285 (reversing
convictions where one defendant’s possession of the co-defendant’s car did not sufficiently
corroborate a sodomy confession).
In summary, to provide the requisite evidentiary corroboration of Corsaro’s confession,
the Commonwealth relies on the impermissible use of hearsay to prove the truth of the matter
asserted, and on speculation and conjecture. Simply put, the evidence corroborating the corpus
delicti was not sufficient to take the jury “‘out of the realm of mere conjecture, or speculation,
and into the realm of legitimate inference.’” Atrium Unit Owners Assoc. v. King, 266 Va. 288,
294, 585 S.E.2d 545, 548 (2003) (quoting Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d 851, 853
(1970)). Thus, the evidence was not sufficient to sustain a conviction based upon Corsaro’s
extrajudicial confession. Dunn v. Commonwealth, 222 Va. 704, 705-06, 284 S.E.2d 792, 793
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(1981) (holding that a verdict “based only upon speculation and conjecture . . . cannot be
permitted to stand”). For these reasons, we hold that the Commonwealth’s evidence did not
corroborate the element of agreement of the corpus delicti. Thus, the trial judge erred in not
granting Corsaro’s motion to strike the evidence. Because this holding is dispositive, we do not
need to address the other questions Corsaro raises on appeal. Accordingly, we reverse the
conviction for conspiracy to distribute a controlled substance.
Reversed and dismissed.
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Beales, J., dissenting.
Because I disagree with the majority’s conclusion that the record does not contain the slight
corroborative evidence necessary to substantiate appellant’s full confession to the conspiracy to
distribute cocaine charge, I respectfully dissent.1
Generally, “if the accused has fully confessed that he [or she] committed the crime, then
only slight corroboration of the confession is required to establish [the] corpus delicti beyond a
reasonable doubt.” Cherrix v. Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999)
(emphasis added). “The confession is itself competent evidence tending to prove the corpus
delicti, and all that is required of the Commonwealth in such a case is to present evidence of such
circumstances as will, when taken in connection with the confession, establish the corpus delicti
beyond a reasonable doubt.” Watkins v. Commonwealth, 238 Va. 341, 349, 385 S.E.2d 50, 54
(1989) (citation omitted). In other words, “‘the corpus delicti need not be established by
evidence independent of the confession, but may be established by both.’” Aldridge v.
Commonwealth, 44 Va. App. 618, 651, 606 S.E.2d 539, 555 (2004) (quoting Reid v.
Commonwealth, 206 Va. 464, 468, 144 S.E.2d 310, 313 (1965)).
Moreover, and as the Virginia Supreme Court further explained in Powell v.
Commonwealth, 267 Va. 107, 145, 590 S.E.2d 537, 560 (2004), “[a]lthough the Commonwealth
may not establish an essential element of a crime by the uncorroborated confession of the
accused alone, ‘only slight corroborative evidence’ is necessary to show the veracity of the
1
Though not addressed by the majority, appellant also argues that “the trial court violated
[her] Constitutional right to confront witnesses against her in allowing prosecution witnesses to
testify about information that was provided to them by a confidential informant who was not present
at the trial . . . .” However, appellant did not offer an objection to the trial court that alleged any
violation of her Sixth Amendment right to confront witnesses against her. Instead, she offered a
general hearsay objection to testimony concerning the confidential informant. For that reason, I
would hold that this Court cannot address this issue, as appellant has failed to comply with
Rule 5A:18.
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confession.” (quoting Williams v. Commonwealth, 234 Va. 168, 175, 360 S.E.2d 361, 366
(1987), cert. denied, 484 U.S. 1020 (1988) (quoting Clozza v. Commonwealth, 228 Va. 124, 133,
321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S. 1230 (1985))). Likewise, “if ‘this
corroborating evidence is consistent with a reasonable inference’ that the accused committed the
crime to which he has confessed, the Commonwealth need not establish through direct evidence
those elements of the crime that are proven by the confession.” Id. (quoting Jackson v.
Commonwealth, 255 Va. 625, 646, 499 S.E.2d 538, 551 (1998), cert. denied, 525 U.S. 1067(1999)). As Powell suggests, “‘The purpose of the corroboration rule is to reduce the possibility
of punishing a person for a crime which was never, in fact, committed.’” Aldridge, 44 Va. App.
at 650, 606 S.E.2d at 555 (quoting Jefferson v. Commonwealth, 6 Va. App. 421, 424, 369 S.E.
2d 212, 214 (1988) (additional citation omitted)).
On brief, appellant suggests that this “slight corroborating evidence” must be testimonial.
However, as both cases from the Virginia Supreme Court and this Court make clear, “slight
corroborating evidence” is not limited to testimonial evidence. See Powell, 267 Va. at 145, 590
S.E.2d at 560 (“[T]he forensic evidence and direct testimony are consistent with and substantiate
[the defendant’s] version of ‘the rest of what happened’ in every respect.”); Winston v.
Commonwealth, 268 Va. 564, 613, 604 S.E.2d 21, 49 (2004) (“The circumstances of the crime
scene, the DNA evidence relating to the handgun, the attempt to hide the handgun with a friend,
and the testimony of Niesha all serve to corroborate Winston's confession . . . .”); Aldridge, 44
Va. App. at 650, 606 S.E.2d at 556 (“[C]ircumstantial evidence may be used to corroborate a full
confession.”).
As the majority notes, “In order to convict [appellant] of conspiring . . . to distribute a
controlled drug, the Commonwealth had to prove beyond a reasonable doubt that an agreement
existed between the [appellant and another] by some concerted action to distribute the drugs.”
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Johnson v. Commonwealth, 42 Va. App. 46, 57, 590 S.E.2d 75, 80 (2003). “Conspiracy requires
. . . (1) an agreement between two or more persons, which constitutes the act; and (2) an intent
thereby to achieve a certain objective[,] either an unlawful act or a lawful act by unlawful
means.” Hix v. Commonwealth, 270 Va. 335, 347, 619 S.E.2d 80, 87 (2005).
Here, several key facts exist, independent of the informant’s tip, which substantiate
appellant’s confession. First, the task force seized a can with crack cocaine residue from
appellant’s vehicle; appellant admitted that she used that can to smoke crack prior to her arrival.
The majority argues that this only proved that appellant was herself a user of cocaine. While
crack cocaine residue on the can does indeed prove appellant possessed and used cocaine, the
actual seizure of physical evidence with cocaine residue substantiates appellant’s confession to
using cocaine prior to her arrival. Stated another way, the presence of the can demonstrates not
only the truthfulness of appellant’s admission to using cocaine, but also the veracity of her entire
confession.
Secondly, Inspector Harvey, through his work with the narcotics task force, knew of the
alleged supplier appellant named in her confession, Jason Washington of Culpeper County.
Harvey knew this individual used the street name, “J-Rock,” by which appellant had referred to
him. I respectfully submit that this information, the police’s independent knowledge of the
alleged drug supplier and his street name, supplies the minimal and slight evidence necessary to
corroborate the confession. Though the majority says that Inspector Harvey might have known
Washington (“J-Rock”) because he could have possibly “worked in the task force office as a
custodian or secretary, or if he delivered supplies or mail to the office,” it is highly unlikely that
Harvey was testifying about a custodian, secretary, or mail room attendant in the context of this
criminal trial. That being said, I would leave that consideration for the jury as the trier-of-fact
and sole judge of witness credibility in this matter.
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Finally, Detective Chilton was already familiar with appellant and the maroon Blazer,
because, as he testified, the owner of that “vehicle had actually cooperated with the task force
before on numerous occasions.” The majority maintains that this evidence would lead the jury to
“engage in speculation and conjecture about unproven allegations.” I would instead suggest that
Chilton’s knowledge of both appellant and the vehicle is consistent with a reasonable inference
that appellant was involved in the impending drug transaction described in her confession, as the
jury apparently found.
I respectfully submit that the record contains the slight evidence necessary to corroborate
appellant’s confession. Specifically, Inspector Harvey’s knowledge of the person appellant
alleged to be her supplier is “consistent with a reasonable inference” that appellant, as she
confessed, had entered into an agreement and intended to distribute cocaine, i.e., a conspiracy to
distribute. I would find that this and the totality of the other evidence, when taken in connection
with the confession, would enable a reasonable fact finder to conclude beyond a reasonable
doubt that appellant had entered into an agreement to distribute cocaine. I am, therefore,
confident that the purpose of the corroboration rule -- avoiding the risk of punishing a defendant
for a crime that he or she did not commit -- has been satisfied in this case. Thus, I must dissent.
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