Jose Juan Carcamo v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
JOSE JUAN CARCAMO MEMORANDUM OPINION* BY
v. 	Record No. 1554-95-4 	JUDGE JOHANNA L. FITZPATRICK
SEPTEMBER 17, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William L. Winston, Judge
Deborah E. Kramer, for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Jose Juan Carcamo (appellant) was convicted in a jury trial
of distribution of cocaine in violation of Code § 18.2-248. 	On
appeal, he argues that the trial court erred in: 	(1) finding the
evidence sufficient to convict him of distribution of cocaine;
(2) refusing to allow his attorney to cross-examine a police
officer about the criminal charges against another individual;
(3) limiting his evidence during the sentencing phase; and
(4) dismissing the jury prior to publishing a jury note
indicating that the jury would have imposed a lesser sentence if
the law allowed. 	For the reasons that follow, we affirm the
conviction.
BACKGROUND
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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On the night of November 4, 1994, Officers Mark Jenkins
(Jenkins) and Randolph Ice (Ice) conducted undercover
surveillance for drug activity near a Shell station in Arlington,
Virginia. 	The officers watched the station from a distance of
sixty-three yards across the street in their parked vehicles.
The lighting was sufficient for the officers to observe what was
occurring in the station's parking lot, and both officers used
binoculars to enhance their vision.
Officer Jenkins saw appellant approach Eric Cedillos
(Cedillos) in the woods at the edge of the Shell station's
parking lot. 	At 10:20 p.m., appellant handed Cedillos a white,
cylindrical object, and Cedillos gave appellant what appeared to
be money. 	Cedillos placed the white object in his sock.
Cedillos later took the object out of his sock and placed it in
his right front pants pocket. 	Officer Ice also saw the
hand-to-hand transaction between appellant and Cedillos, but
could not identify the object being passed because it was
obscured. 	Appellant put the money in his pocket and walked away
after the exchange. 	A few minutes later, an unidentified man
approached Cedillos, and Jenkins saw them engage in a drug
transaction. 	Appellant returned to the Shell station a few
minutes later and stood next to Cedillos, at which time the
officers approached and identified themselves.
The police searched the men and found the white object (a
crazy glue bottle) in Cedillos' right front pants pocket. 	The
police opened the container and found what appeared to be and

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what was later identified as cocaine. 	Ice estimated the street
value for the quantity of cocaine found to be $160. 	The police
searched appellant and found $138 in his pocket.
During a jury trial held April 3, 1995, both officers
testified unequivocally that the men they arrested were the same
they had observed earlier. 	Appellant denied selling drugs to
Cedillos and testified that he was at the Shell station to buy
juice. 	He explained that he cashed his paycheck for $100 at a
liquor store that afternoon and that he already had $38 in his
pocket. 	Appellant's employer testified that every other Friday
was a payday, but could not confirm that November 4, 1994 was a
payday.
At the close of the Commonwealth's case, appellant's counsel
made a motion to strike because the Commonwealth had not proven
the elements of the crime, but the court denied this motion.
Appellant's counsel renewed this motion at the conclusion of all
evidence, and the court again denied the motion.
The jury found appellant guilty as charged, and the court
held the sentencing phase of the trial on April 4, 1995. 	The
jury recommended the minimum sentence of five years in the state
penitentiary. 	On June 23, 1995, the trial court followed the
jury's recommendation and sentenced appellant to five years in
the state penitentiary.
SUFFICIENCY OF THE EVIDENCE
Appellant argues that the trial court erred in finding the

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evidence sufficient to convict him of distribution of cocaine.
Specifically, he contends that the Commonwealth's evidence was
primarily circumstantial and failed to exclude all reasonable
conclusions inconsistent with guilt.
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we must view all the evidence in the
light most favorable to the Commonwealth . . . ." 	Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
This Court has held that "'[c]ircumstantial evidence is as
competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt.'" 	Shurbaji v.
Commonwealth, 18 Va. App. 415, 423, 444 S.E.2d 549, 553 (1994)
(quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983), cert. denied, 465 U.S. 1109 (1984)).
In this case, the evidence established that Jenkins and Ice
conducted a surveillance of the Shell station and saw a
transaction between appellant and Cedillos. 	Appellant handed
Cedillos a white, cylindrical object, and Cedillos gave appellant
money. 	Cedillos placed the object in his sock and later moved
the object to his right front pants pocket. 	When police searched
Cedillos, they found the white, cylindrical object, which
contained cocaine, in Cedillos' right front pants pocket.
Appellant had $138 in his pocket, and Ice estimated the street
value of the quantity of cocaine found to be $160. 	At trial,

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Jenkins and Ice confirmed that the men they arrested were the
same two men they had observed earlier. 	Viewing this evidence in
the light most favorable to the Commonwealth, we hold that the
trial court did not err in finding the evidence sufficient to
convict appellant of distribution of cocaine.
LIMITATION OF CROSS-EXAMINATION
Appellant next asserts that the trial court erred in
refusing to allow him to cross-examine Jenkins about the charges
against Cedillos.
During cross-examination of Jenkins, appellant's attorney
asked whether Jenkins had charged Cedillos with distribution of
drugs. 	The Commonwealth's attorney objected, arguing that the
charges against Cedillos were "totally irrelevant." 	The trial
court sustained the Commonwealth's objection and stated "you try
one case at a time." 	Appellant's counsel responded, "That's
true," and made no objection to the court's ruling.
The Court of Appeals will not consider an argument on appeal
that was not presented to the trial court. 	Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).
"No ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
cause shown or to enable the Court of Appeals to attain the ends
of justice." 	Rule 5A:18. 	This issue is barred by Rule 5A:18.
LIMITATION OF EVIDENCE DURING SENTENCING PHASE

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Appellant contends that the trial court erred in limiting
his evidence in mitigation of punishment during the sentencing
phase of trial.
At trial, appellant's boss, Cristian Rodas, testified that
appellant had a reputation for truth and veracity among his
co-workers, bosses, and friends. 	Appellant's former co-worker,
Daniel Mendez, confirmed that appellant was a "good person."
During the sentencing phase, appellant's counsel sought to
introduce additional evidence of appellant's employment history
and his family. 	The trial court determined that appellant's
counsel could reiterate evidence introduced at trial attesting to
appellant's employment history and reputation, but ruled that
appellant could not testify about his employment history and
family beyond the scope of what was introduced at trial. 	The
court found that the additional information was not "relevant and
admissible on the issue of sentencing" under Code § 19.2-295.1.
The court also instructed the jury that appellant had no criminal
record.
Code § 19.2-295.1 provides as follows:
In cases of trial by jury, upon a
finding that the defendant is guilty of a
felony, a separate proceeding limited to the
ascertainment of punishment shall be held as
soon as practicable before the same jury.
At such proceeding, the Commonwealth shall
present the defendant's prior criminal
convictions by certified, attested or
exemplified copies of the record of
conviction, including adult convictions
and juvenile convictions and adjudications of
delinquency. 	Prior convictions shall include
convictions and adjudications of delinquency

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under the laws of any state, the District of
Columbia, the United States or its
territories. 	The Commonwealth shall provide
to the defendant fourteen days prior to trial
notice of its intention to introduce evidence
of the defendant's prior criminal
convictions. 	Such notice shall include (i)
the date of each prior conviction, (ii) the
name and jurisdiction of the court where each
prior conviction was had, and (iii) each
offense of which he was convicted. 	Prior to
commencement of the trial, the Commonwealth
shall provide to the defendant photocopies of
certified copies of the defendant's prior
criminal convictions which it intends to
introduce at sentencing. 	After the
Commonwealth has introduced such evidence of
prior convictions, or if no such evidence is
introduced, the defendant may introduce
relevant, admissible evidence related to
punishment. 	Nothing in this section shall
prevent the Commonwealth or the defendant
from introducing relevant, admissible
evidence in rebuttal. 	If the defendant is
found guilty of an offense other than a
felony, punishment shall be fixed as
otherwise provided by law.
If the jury cannot agree on a punishment
and if the defendant, the attorney for the
Commonwealth, and the court agree, in the
manner provided in § 19.2-257, then the court
shall fix punishment.
(Emphasis added.) 	"Evidence is relevant if it has any logical
tendency, however slight, to establish a fact at issue in the
case." 	Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d
675, 678 (1993).
In Virginia, non-constitutional error is
harmless "[w]hen it plainly appears from the
record and the evidence given at the trial
that the parties have had a fair trial on the
merits and substantial justice has been
reached." 	"[A] fair trial on the merits and
substantial justice" are not achieved if an
error at trial has affected the verdict. . . .
An error does not affect a verdict if a reviewing

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court can conclude, without usurping the jury's
fact finding function, that, had the error not
occurred, the verdict would have been the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc) (citation omitted). 	The Supreme Court of
Virginia has held that errors relating to information imparted to
the jury are harmless when the accused's guilt is established by
the evidence and the jury imposes the minimum punishment. 	See
Caldwell v. Commonwealth, 221 Va. 291, 298, 269 S.E.2d 811, 815
(1980) (holding that error in informing jury about parole was not
harmless where jury imposed maximum sentence on two counts); Hall
v. Commonwealth, 143 Va. 554, 561-62, 130 S.E.2d 416, 419 (1925)
(holding that error in improperly admitting other crimes evidence
was harmless where evidence clearly established the guilt of the
accused and the jury imposed the minimum sentence).
Assuming without deciding that the trial court erred in
limiting appellant's evidence of employment history and family
during the sentencing phase, we hold that this error was harmless
and did not affect appellant's sentence, as he received the
minimum sentence allowed for the offense committed. 	Under these
circumstances, even if the trial court had allowed appellant to
introduce additional evidence regarding his work history and
family, "the verdict would have been the same," and thus the
error is harmless. 	See Lavinder, 12 Va. App. at 1005, 407 S.E.2d
at 911.
JURY NOTE RECOMMENDING LESSER SENTENCE

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Appellant lastly argues that the trial court erred in
failing to publish a jury note indicating that the jury would
have imposed a lesser sentence if the law allowed until after it
had dismissed the jury. 	Specifically, appellant contends that
the jury's note indicates that the verdict was not unanimous and
that, if he had known about the note prior to the dismissal of
the jury, he would have polled the jury.
During deliberations in the sentencing phase, the jury
asked, "Should the jury choose to recommend the minimum sentence
can we also recommend that the Court suspend part or all of the
sentence? 	Is this in our power?" 	The trial court responded as
follows: Yes, the jury may make a recommendation under
the law. 	However, the Court is not obligated
to follow the recommendation. 	The case will
come up on a future date for the imposition
of sentence. 	At that time the Court can
consider your recommendation together with
other material that will be before the Court
at that time. 	If a recommendation is made
please place it on a separate paper from the
verdict.
Appellant did not object to the trial judge's response to the
jury. 	The jury recommended the minimum sentence of five years in
the state penitentiary. 	After the trial judge read the verdict,
appellant did not object to the form of the verdict or ask to
poll the jury. 	The jury also wrote a separate statement that
read as follows: 	"[H]ad we had the latitude, we would have
recommended one to two years imprisonment with no fine. 	We ask
the court to consider this recommendation when it imposes the

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sentence." 	The court did not inform either party of this
statement until after it dismissed the jury, at which point no
objections were made. 	On June 23, 1995, the trial court imposed
the five-year sentence recommended by the jury.
Code § 18.2-248(C) provides as follows: 	"Any person who
violates this section . . . shall upon conviction be imprisoned
for not less than five nor more than forty years and fined not
more than $500,000." 	(Emphasis added.) 	"[T]he general rule [is]
that if the jury make[s] a recommendation for leniency, without
statutory authority, such recommendation is not a part of the
verdict and not binding on the trial court." 	Clarke v.
Commonwealth, 207 Va. 298, 301, 149 S.E.2d 875, 877 (1966). 	See
also Harmon v. Commonwealth, 209 Va. 574, 581, 166 S.E.2d 232,
237 (1969) ("[A] recommendation for mercy in the verdict of a
jury in a criminal trial is mere surplusage, without legal
effect, and may be disregarded by the trial court.").
Appellant's argument that he was denied the opportunity to
request imposition of the lesser sentence recommended by the jury
is without merit. 	Under Code § 18.2-248(C), the jury had no
authority to recommend a sentence of less than five years. 	Thus,
in imposing sentence on appellant, the trial court was not
required to follow the jury's recommendation for leniency.
Additionally, appellant was aware that the jury intended to
recommend a suspended sentence if it imposed the minimum
sentence, but chose not to poll the jurors. 	Under these

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circumstances, we hold that the trial court did not err in
failing to publish the jury's note prior to dismissing the jury.
We recognize that Rule 3A:17 requires that "[i]n all
criminal prosecutions, the verdict shall be unanimous, in writing
and signed by the foreman, and returned by the jury in open
court." 	(Emphasis added.) 	However, in this case, no evidence
shows that the jury's verdict as to sentence was not unanimous.
The plain meaning of the jury note indicated that the jury was
recommending a lesser sentence for the trial court to consider
when imposing sentence.
Accordingly, the decision of the trial court is affirmed.
Affirmed.