All the Justices
TYRONE ALPHONSO WILSON
Record No. 051968
OPINION BY JUSTICE ELIZABETH B. LACY
June 8, 2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, Tyrone Alphonso Wilson challenges the
sufficiency of the evidence to establish possession with
intent to distribute cocaine, a violation of Code § 18.2-248,
and possession with intent to distribute more than one-half
ounce but less than five pounds of marijuana, a violation of
Code § 18.2-248.1.
He also challenges the trial judge's
actions in refusing to consider a plea agreement and to recuse
himself from Wilson's case.
Although we find no merit in
Wilson's challenge to the sufficiency of the evidence, we
conclude that the judgments of conviction must be vacated and
the case remanded because the trial judge's actions
demonstrated an appearance of partiality and, therefore, the
trial judge abused his discretion in refusing Wilson's recusal
Facts and Proceedings
Several officers and investigators from the Norfolk City
Police Department executed a search warrant on an apartment
after conducting surveillance of the apartment for over an
Inside the apartment, the officers found six men,
The police recovered from cabinets in the
kitchen six bags holding smaller bags of marijuana, a number
of "baggies," cash, and a scale covered with what appeared to
be cocaine residue.
A bag containing cocaine, a nine-
millimeter pistol, marijuana, a cell phone, and a pager device
in plain view in the living room were also recovered by the
Officers found Wilson in the kitchen of the apartment.
While lying on the floor at the direction of the officers,
Wilson told the officers he had a .45 caliber pistol, which
the officers retrieved.
No drugs were found on Wilson's body, but he did have
$1,755 cash and keys to a van which was parked outside the
The police officers found amounts of cocaine worth
$350,000 hidden in the "traps" in the door panels of the van.
The officers also recovered from the van a magazine of bullets
for a .45 caliber gun.
The only .45 caliber gun recovered was
the one found on Wilson.
Wilson was indicted for two counts of possession of a
firearm while in possession of cocaine, Code § 18.2-308.4,
possession of cocaine with intent to distribute, Code § 18.2248, possession of more than one-half ounce but less than five
pounds of marijuana with intent to distribute, Code § 18.2-
248.1, and possession of a weapon by a convicted felon, Code
On July 16, 2002, Wilson and his attorney, Allen D.
Zaleski, appeared in the Circuit Court of the City of Norfolk
before Judge Charles E. Poston briefly before being
transferred to Judge Charles D. Griffith, Jr.'s courtroom.
The case was set for a bench trial, but when the case was
transferred to Judge Griffith, Wilson requested a trial by
In response to Judge Griffith's questions, Zaleski
admitted that he counseled Wilson to ask for a jury trial
specifically because the case was transferred to Judge
Judge Griffith then attempted to relieve Zaleski
from representing Wilson in the case.
When Judge Griffith
learned that he could not remove Zaleski because Wilson had
retained Zaleski to represent him, Judge Griffith ordered that
Zaleski be removed from the circuit court's list of courtappointed attorneys "effective immediately."
declared he was "not going to have a court-appointed lawyer
who practices that way in this court building," and referred
to Zaleski's actions as "shenanigans."
proceeding, Judge Griffith also ruled that by waiting to
request a jury trial until the case was transferred, Wilson
waived the 14-day notice period required for admission of
juvenile records under Code § 19.2-295.1 and that Wilson could
not later waive his right to a jury trial.
On September 6, Wilson appeared before Judge Everett A.
Martin, changed his request back to a bench trial, and was
arraigned on all the charges.
Judge Martin set the case for a
bench trial for the following week.
Upon learning that
Wilson's case was again set for a bench trial, Judge Griffith
approached the chief judge of the circuit court and suggested
that a defendant should not be allowed "to avoid a particular
courtroom" by seeking a jury trial.
Following this exchange,
the chief judge removed the case from the "open docket," that
is, assignment of the trial judge on the day of trial, and
assigned the case to Judge Griffith.
On September 10, 2002, when Wilson appeared before Judge
Griffith for the trial, the following exchange took place:
MR. ZALESKI: Your Honor, we're very close to a
plea agreement in this case.
We're ready to start the trial.
If we present a plea agreement –
THE COURT: The trial is getting ready to begin,
MR. ZALESKI: Yes, Your Honor. Can I have just
two minutes to talk to my client?
THE COURT: I have asked them to bring him out
so we can start the trial. This case has been
on the docket plenty of times. It's time to go.
. . . .
[The Clerk calls the case and some of the
witnesses are sworn.]
. . . .
MRS. BRYANT: Before the Court proceeds in
this case further, it's my understanding that
Mr. Wilson would like to enter a plea of guilty.
We don't have a plea agreement written out. We
would ask the Court to accept the plea. It
calls for a total sentence of 20 years with four
THE COURT: I'm sorry, but we're getting ready
to start a trial. You-all have had plenty of
time to negotiate. We're not doing any
negotiations right now. We're starting a trial.
would move –
You're rejecting the agreement?
THE COURT: There is no agreement. This case is
beginning trial. You are beyond your time to
negotiate a plea agreement. We're starting a
Counsel for the Commonwealth then requested a conference
in chambers during which she explained to Judge Griffith that
on the eve of trial the Commonwealth learned of certain
exculpatory evidence connected with a Commonwealth's witness.
Based on this development, the Commonwealth offered Wilson a
After this explanation, the following
exchange took place.
THE COURT: All right. Let's go. You seem to
think that once this trial begins, which has
begun . . . that somehow or another you have a
Ms. Bryant was an assistant Commonwealth's Attorney.
right to stop everything and present a plea
agreement and force me to consider a plea
agreement. This trial is ready to begin. Your
time for negotiating is over. It's time to
start the trial.
I was actually –
MR. ZALESKI: Is the Court saying you will not
consider any plea agreement at this time?
You have no plea agreement.
That is the Court's position?
THE COURT: We have started a trial.
late to negotiate.
MR. ZALESKI: You are stating you will not
consider any plea agreement at all?
THE COURT: I'm not going to interrupt this
trial and submit a plea agreement. That's
correct. We are ready to start the trial.
At the conclusion of the evidence and the arguments,
Judge Griffith found the defendant guilty of all charges.2
April 25, 2003, Judge Griffith sentenced Wilson to a total of
60 years imprisonment, with 30 years suspended.
Wilson appealed to the Court of Appeals of Virginia.
three-judge panel of the Court of Appeals reversed the trial
court's judgment and remanded the case.
Commonwealth, Record No. 1229-03-1 (January 18, 2005).
rehearing en banc, the judgment of the trial court was
After considering post-trial motions, the trial court
dismissed one of the convictions for possession of a firearm
while in possession of cocaine on double jeopardy grounds.
affirmed by a divided vote.
Wilson v. Commonwealth, Record
No. 1229-03-1 (Aug. 23, 2005) (en banc).
Wilson appealed to
Sufficiency of the Evidence
Wilson claims that the evidence at trial was insufficient
to support his convictions of possession with intent to
distribute more than one-half ounce but less than five pounds
of marijuana and possession with intent to distribute cocaine.
Wilson's arguments are directed entirely to the sufficiency of
the evidence as it relates to actual or constructive
possession of cocaine and marijuana; evidence of the intent to
distribute or the amount of the drugs is not at issue.
Because he did not assign error to the sufficiency of evidence
to support his conviction for possession of cocaine while
possessing a firearm, he has therefore conceded the factual
finding that he was in actual or constructive possession of
Accordingly, Wilson has waived, and we will not
address, the sufficiency of the evidence of possession of
cocaine in regard to the intent to distribute charge.
consideration of this assignment of error is limited to the
sufficiency of the evidence as it relates to Wilson's
possession of marijuana.
Wilson argues that the Commonwealth
failed to prove he exercised dominion and control over the
marijuana or was aware of its presence in the apartment.
The law on possession of illicit drugs in this
Commonwealth is well established.
In Walton v. Commonwealth,
255 Va. 422, 497 S.E.2d 869 (1998), we stated:
In order to convict a person of illegal
possession of an illicit drug, the Commonwealth
must prove beyond a reasonable doubt that the
accused was aware of the presence and character of
the drug and that the accused consciously possessed
it. Andrews v. Commonwealth, 216 Va. 179, 182,
217 S.E.2d 812, 814 (1975). An accused's mere
proximity to an illicit drug, however, is not
sufficient to prove possession. Drew v.
Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986). In addition, ownership or occupancy of the
premises where the drug is found does not create a
presumption of possession. Code § 18.2-250.1(A);
Garland v. Commonwealth, 225 Va. 182, 184, 300
S.E.2d 783, 784 (1983). Nonetheless, these factors
may be considered in deciding whether an accused
possessed the drug. Lane v. Commonwealth, 223 Va.
713, 716, 292 S.E.2d 358, 360 (1982).
Additionally, proof of actual possession is
not required; proof of constructive possession will
suffice. Constructive possession may be
established when there are " 'acts, statements, or
conduct of the accused or other facts or
circumstances which tend to show that the [accused]
was aware of both the presence and character of the
substance and that it was subject to his dominion
and control.' " Drew, 230 Va. at 473, 338 S.E.2d
at 845 (quoting Powers v. Commonwealth, 227 Va.
474, 476, 316 S.E.2d 739, 740 (1984)).
Id. at 426, 497 S.E.2d at 871-72.
When analyzing a challenge to the sufficiency of the
evidence, this Court reviews the evidence in the light most
favorable to the prevailing party at trial and considers any
reasonable inferences from the facts proved.
Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005).
judgment of the trial court will only be reversed upon a
showing that it "is plainly wrong or without evidence to
Code § 8.01-680; see Viney, 269 Va. at 299, 609
S.E.2d at 28.
Applying these well established principles to
the facts of the present case, we find the evidence sufficient
to support Wilson's conviction.
The only entrance to the apartment opened to the living
room where marijuana, a bag of cocaine, and a gun were in
plain view when the police entered the apartment.
the police found Wilson in the kitchen, Wilson had to walk
through the living room to reach the kitchen.
is reasonable to infer that Wilson was aware of the presence
and character of the drugs in the living room.
The apartment had very few personal effects and no food,
and the police found in plain view a video camera and monitor,
which one of the officers testified are paraphernalia often
used in drug houses for surveillance.
Based on the appearance
of the apartment combined with the presence of the scale,
multiple "baggies" of marijuana, and cash found in the kitchen
cabinets, it is reasonable to infer that the apartment was
used as part of a drug distribution scheme.
presence alone does not prove possession of the drugs, the
marijuana in plain view in the living room, the character of
the apartment, and the cash and gun found on Wilson's person
prove sufficient dominion and control over the illicit drugs
to establish constructive possession.
497 S.E.2d at 871-72.
Walton, 255 Va. at 426,
Thus, sufficient evidence existed to
support Wilson's conviction for possession with intent to
Wilson asserts that Judge Griffith abused his discretion
in refusing to recuse himself from the case because of his
actions during the July 16 hearing and at trial.
Judge Griffith, when asked to recuse himself, explained
that he was "as capable as anyone else is at giving [Wilson] a
fair trial," that he would be fair, "I can guarantee it."
Thus Judge Griffith concluded that he need not recuse himself.
In considering a motion for recusal, a judge must
exercise reasonable discretion in determining whether he or
she possesses such bias or prejudice that would deny a
litigant a fair trial.
Justus v. Commonwealth, 222 Va. 667,
673, 283 S.E.2d 905, 908 (1981).
We review a judge's decision
applying an abuse of discretion standard.
When considering a
judge's decision regarding recusal, we have stated that in
making the recusal decision, "the judge must be guided not
only by the true state of his impartiality, but also by the
public perception of his fairness, in order that public
confidence in the integrity of the judiciary may be
Stamper v. Commonwealth, 228 Va. 707, 714, 324
S.E.2d 682, 686 (1985).
We have also suggested that the
Canons of Judicial Conduct are instructive, although not
determinative in our review of a judge's recusal decision.
Jackson v. Commonwealth, 267 Va. 226, 229-30, 590 S.E.2d 518,
519-20 (2004); Commonwealth v. Huynh, 262 Va. 165, 174, 546
S.E.2d 677, 681 (2001).
Upon review of this record, including the preemptory
immediate removal of Zaleski from the court-appointed list,
attempted removal of Zaleski as attorney for the defendant,
reference to Zaleski's actions as "shenanigans," and the
statement that he did not want Zaleski appearing in the court
building as a court-appointed attorney, we conclude that Judge
Griffith exhibited a personal bias or prejudice against
Judge Griffith further evidenced his personal bias
against Zaleski when he solicited assignment of the case,
causing it to be removed from the "open docket."
shows that Judge Griffith believed that Wilson's changing his
request from a bench trial, to a jury trial, then back to a
bench trial stemmed from Zaleski's "shenanigans" to avoid
being tried by Judge Griffith and that Judge Griffith
suggested to the chief judge of the circuit that he be
assigned the case because a defendant shouldn't be allowed "to
avoid a particular courtroom solely by asking for a jury
The subsequent request to hear Wilson's case in light
of the judge's stated view of Wilson's counsel raises a
concern regarding the judge's impartiality and the public
perception of his fairness.
Finally, declaring that there was no plea agreement and
refusing to allow the agreement to be reduced to writing
similarly raises questions about the judge's attitude toward
Wilson's counsel and counsel for the Commonwealth.
Griffith declared that there was "no plea agreement" even
though counsel for the Commonwealth and for Wilson stated that
an agreement had been reached, and he refused to allow the
parties the opportunity to reduce the agreement to writing for
presentation to the court because the time for "negotiating
While the procedure described in Rule 3A:8(c), titled
"Plea Agreement Procedure," refers to a written, signed plea
agreement, creation of such an agreement does not depend on
the agreement being in written form or on its specific terms
being recited to the judge.
A judge need know the specifics
of an agreement only when asked to accept or reject the plea
Here, both parties represented to Judge Griffith
that a plea agreement existed and that it was initiated at the
request of the Commonwealth.
The parties also explained the
reasons for the timing of the agreement to the judge.
Griffith nevertheless continued to maintain that there was no
agreement, that the time for negotiating such an agreement
"had passed," and that the case was going to proceed to trial
Judge Griffith made it completely clear that he
would not consider a plea agreement and would not allow
counsel an opportunity to reduce the agreement to writing.
The judge's position gives rise to a reasonable question
concerning his impartiality and the public's perception of his
The Commonwealth argues that these instances address
Judge Griffith's attitude toward counsel rather than Wilson
and that during the actual trial Judge Griffith did not make
any rulings that could be considered prejudicial to Wilson.
Consequently, the Commonwealth urges, there is no prejudice or
impartiality shown toward Wilson and no need for recusal.
disagree with the Commonwealth.
First, an apparent bias against a litigant's attorney
gives rise to a perception by the litigant and the public in
general that the judge may not be fair and impartial in the
conduct of the proceeding.
See Canon 3(E)(1)(a) (reasonable
question of judge's partiality when personal bias or prejudice
shown against party or party's counsel).
prejudice or bias against Zaleski is repeatedly reflected in
this record and such bias does raise questions about Judge
Griffith's ability to be impartial in this proceeding.
Furthermore, the refusal to consider the plea agreement or to
allow the parties an opportunity to reduce such an agreement
to writing adversely affected Wilson.
Although a trial judge
is free to reject the terms of a plea agreement, Wilson was
denied the opportunity to have such an agreement considered
and, if such an agreement had been presented to and refused by
Judge Griffith, another judge would have tried Wilson's case.
Based on this record, we conclude that Judge Griffith's
failure to recuse himself was an abuse of discretion because
the record shows that the judge's actions reflected a personal
bias and prejudice against Wilson's counsel and raised
concerns about the judge's impartiality in the case and about
the public's perception of his fairness in the case.3
Accordingly, although the evidence was sufficient to support
conviction of possession of marijuana with intent to
distribute, we will reverse the judgment of the Court of
Appeals, vacate the judgments of conviction, and remand the
In light of our decision, we need not address Wilson's
claim that the trial judge erred in refusing to consider the
plea agreement, and that such refusal constituted a rejection
case to the Court of Appeals with instructions to remand the
matter to the trial court for a new trial, if the Commonwealth
be so inclined, before a different judge.
Reversed and remanded.
of the agreement, thereby requiring a different judge to
preside over Wilson's trial pursuant to Rule 3A:8(c)(4).