                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Decker, Judges Humphreys and Huff
            Argued at Alexandria, Virginia
PUBLISHED




            JAMES WESLEY AMONETT, JR.
                                                                                 OPINION BY
            v.     Record No. 1613-17-4                                   JUDGE ROBERT J. HUMPHREYS
                                                                              FEBRUARY 19, 2019
            COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                             Bruce D. White, Judge

                           Alan J. Cilman for appellant.

                           Liam A. Curry, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   This appeal primarily involves three questions: 1) the degree to which promises of

            leniency made by police officers render statements by the accused “involuntary,” or constitute a

            grant of immunity from a criminal conviction; 2) whether it is the court or a jury that makes that

            determination, and 3) the effect at trial of a forensic witness’ failure to appear and testify at a

            preliminary hearing.

                   James Wesley Amonett, Jr., (“Amonett”) appeals the March 15, 2017 jury verdict of the

            Circuit Court of Fairfax County (“circuit court”) convicting him of two counts of possession with

            intent to distribute marijuana in violation of Code § 18.2-248.1.

                                                     I. BACKGROUND

                   On July 27, 2015, Corporal Andrew Perry (“Officer Perry”) of the Herndon Police

            Department stopped Amonett’s vehicle. When Officer Perry approached the vehicle, he smelled

            marijuana. Officer Perry observed that Amonett appeared to be breathing heavily and was

            nervous. Investigating the odor of marijuana, Officer Perry searched Amonett’s vehicle’s center
console, where he found marijuana and associated paraphernalia. Officer Perry also found a

backpack on the passenger side floor containing a safe which gave off a strong odor of

marijuana. Detective James Passmore (“Detective Passmore”) of the Herndon Police

Department arrived at the scene to assist Officer Perry. Officer Perry and Detective Passmore

told Amonett that “if he cooperated further he would possibly be able to go home that night

without being arrested or charged.” Detective Passmore presented Amonett with a consent to

search form for the safe in the backpack, which Amonett signed. Inside the safe the officers

found half a pound of marijuana. The officers transported Amonett to the Herndon police

station.

           At the police station, Amonett was appraised of his Miranda rights and was interviewed.

During the interview, Amonett stated that he had received a two-pound parcel of marijuana from

California, that the half pound found in the safe had been part of this shipment, and that the

remainder of the shipment was at his residence. Amonett signed another consent to search form

related to his residence where they secured the remaining marijuana along with a scale,

paraphernalia, and $270 in cash.

           Amonett was released and was not arrested and charged until October 2015. Amonett

filed a written motion to suppress his statements to police. A hearing on that motion was held on

February 24, 2017. No transcript of that hearing or statement of facts has been provided on

appeal. On March 10, 2017, Amonett filed a written motion in limine to bar the testimony of

Dr. Eugene Reichenbecher (“Dr. Reichenbecher”) or in the alternative to dismiss the indictment

based upon Dr. Reichenbecher’s failure to appear and testify at the preliminary hearing. A

hearing on that motion took place immediately before trial began on March 14, 2017, and the

motion was denied. Amonett was tried by a jury on March 14-15, 2017. During the trial,

Amonett testified that he made purchases of marijuana from California, receiving them through

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the mail and distributed them, and that he had been in the process of distributing the most recent

shipment when stopped by Officer Perry. Dr Reichenbecher, a forensic scientist, testified that he

had chemically tested the seized material to verify that it was marijuana. The jury convicted

Amonett, recommending a sentence of fourteen days in jail and a fine of $3,000. The circuit

court sentenced Amonett accordingly on July 7, 2017. This appeal follows.

                                             II. ANALYSIS

                                         A. Assignments of Error

       Although his arguments are convoluted and overlapping, Amonett assigns four errors to

the circuit court. First, he asserts that the circuit court erred by failing to dismiss the indictments

on the grounds that he had been granted immunity by the police; second, that the circuit court

erred in failing to instruct the jury that they should acquit Amonett if they determine that the

police had made a promise that he would not be prosecuted; third, that the circuit court erred in

failing to suppress his statements to the police on the grounds that they were involuntary in that

they were the product of an agreement that he would not be prosecuted; and fourth, that the

circuit court erred in allowing the testimony of a chemist as an expert witness in the circuit court

when that witness had failed to appear pursuant to a subpoena to testify at the preliminary

hearing in the general district court.

                      B. Whether Amonett’s Errors Were Properly Preserved

       Three of Amonett’s four assignments of error concern an alleged “deal” not to prosecute

between Amonett and the police. Following his indictment, Amonett made a motion to suppress

the statements he made to Detective Passmore and Officer Perry as involuntarily obtained. At a

pre-trial hearing regarding this motion, Amonett apparently argued, as he does on appeal, that the

statements made by the police, “if he cooperated further he would possibly be able to go home

that night without being arrested or charged,” constituted an agreement not to prosecute.

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       However, while Amonett provided a transcript of the trial, he did not provide a transcript

of the suppression hearing. The responsibility to provide a transcript rests with the appellant,

and “[w]hen the appellant fails to ensure that the record contains transcripts or a written

statement of facts necessary to permit resolution of appellate issues, any assignments of error

affected by such omission shall not be considered.” Rule 5A:8(b)(4)(ii). Without the benefit of

a transcript or an agreed upon statement of facts, we cannot say that the circuit court erred in

failing to suppress Amonett’s statements. While the statement made by the officers to Amonett

was discussed at trial, at that point the issue was the admissibility of Amonett’s replies, not

whether the officer’s statements constituted a grant of immunity—an issue that should have

been, and presumably was, decided in the pre-trial suppression hearing. We have no way of

knowing what specific legal arguments were advanced nor what additional evidence was

presented at the pre-trial hearing that formed the basis for the circuit court’s decision. Moreover,

although Amonett’s first assignment of error alleges error on the part of the circuit court for

failing to dismiss the indictment, the written motion filed in the circuit court only seeks

suppression of the statements, not dismissal of the indictment. For these reasons, in the absence

of a record of the pre-trial hearing, Rule 5A:18 bars our consideration of that assignment of error.

       Regarding Amonett’s third assignment of error, a fatal flaw emerges from Amonett’s

argument. Amonett is correct that “cooperation/immunity agreements can be somewhat

analogous to plea agreements.” Lampkins v. Commonwealth, 44 Va. App. 709, 724 (2005).

However, Amonett fails to recognize the fact that cooperation/immunity agreements and plea

agreements are entered into by prosecutors, not the police.

       Amonett does not cite any authority extending the rules governing plea bargaining or

grants of immunity to interactions with the police, instead he simply conflates police with




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prosecutors in his argument. The respective roles of police and prosecutors are distinct, and they

serve different functions and observe different restrictions.

       In Rodgers v. Commonwealth, 227 Va. 605 (1984), similarly to the present case, the

defendant claimed that his confession was involuntary as it had been procured by the police

through a “promise of leniency.” Id. at 616. Our Supreme Court noted that voluntariness must

be examined through a consideration of the totality of the circumstances and whether the

statement in question was “the product of an essentially free and unconstrained choice by its

maker, or whether the maker’s will has been overborne and his capacity for self-determination

critically impaired.” Id. at 609. The Court in Rodgers further noted that “the [United States]

Supreme Court [has] made clear that even an outright falsehood by a police interrogator is but

another factor to be considered in evaluating the totality of the circumstances.” Id. at 616 (citing

Frazier v. Cupp, 394 U.S. 731 (1969)). The promise of leniency our Supreme Court found no

fault with in Rodgers was “[w]e’re gonna [sic] submit this to the Commonwealth Attorney and

then he makes the decision.” Id. Here, there was no mention of the Commonwealth Attorney,

but simply a statement that if Amonett cooperated he could possibly go home that night without

being arrested. A statement, we note, that was strictly adhered to by the police officers who

made it—Amonett did in fact go home that night without being arrested or charged.

       Rodgers illustrates the fact that while police have discretion whether to make an arrest or

not, it is the Commonwealth Attorney that makes the decision whether to prosecute. In the

absence of clear evidence that a police officer is acting as an agent of the prosecution, an

exercise of discretion by a police officer to forego an arrest does not control a prosecutor’s

discretion whether to prosecute any more than an arrest by police would.

       The only scenario in which the police could have granted Amonett immunity from

prosecution is if they were acting as agents of the Commonwealth Attorney. Agency is “a

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fiduciary relationship resulting from one person’s manifestation of consent to another person that

the other shall act on his behalf and subject to his control, and the other person’s manifestation of

consent so to act.” Acordia of Virginia Ins. Agency, Inc. v. Genito Glenn, L.P., 263 Va. 377,

384 (2002) (quoting Reistroffer v. Person, 247 Va. 45, 48 (1994)). While police and prosecutors

work together and ideally do so smoothly and cooperatively, they are separate, independent

governmental entities with differing missions and responsibilities. The police officers in this

case were clearly not express agents of the prosecution, as there is nothing in the record before us

to indicate that they were authorized by the Commonwealth Attorney to negotiate an immunity

agreement on behalf of that office. Neither were the police officers apparent agents of the

prosecution. “‘[A]pparent or ostensible agency’ . . . means ‘[a]n agency created by operation of

law and established by a principal’s actions that would reasonably lead a third person to

conclude that an agency exists.’” Sanchez v. Medicorp Health Sys., 270 Va. 299, 304 (2005)

(quoting Black’s Law Dictionary 67 (8th ed. 2004)). There is no indication that Amonett

interacted with the Commonwealth Attorney’s office prior to his interaction with the police, and

therefore did not have any basis for believing that the officers were acting as the prosecution’s

agents.

             C. Whether the Circuit Court Erred in Denying Amonett’s Jury Instruction

          Amonett’s second assignment of error is essentially that the jury should have been

instructed to return a verdict of “not guilty” if they determined that he had been granted

immunity by the police. Determining whether such immunity agreements exist is “generally

governed by the law of contracts.” Hood v. Commonwealth, 269 Va. 176, 181 (2005) (citations

omitted). “The question of whether [a valid] contract exists is a pure question of law.”

Spectra-4, LLP v. Uniwest Commercial Realty, Inc., 290 Va. 36, 42 (2015). As a question of

law, the existence of a contract is not a proper question for submission to the jury. “It is

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fundamental that the court must respond to questions of law and the jury to questions of fact.”

Gottlieb v. Commonwealth, 126 Va. 807, 812 (1920). Amonett, then, is at an impasse. If an

agreement not to prosecute existed between himself and police, it was a contract, the existence of

which was a matter of law properly resolved only by the circuit court at the pre-trial hearing, of

which there is no record before us. In any event, it was not error for the circuit court to refuse to

instruct the jury on that question.

         D. Whether the Circuit Court Erred by Allowing Dr. Reichenbecher to Testify

       Amonett’s final assignment of error asserts that the circuit court erred by allowing

Dr. Reichenbecher to testify at trial because he did not appear at a preliminary hearing despite

multiple subpoenas from Amonett.

       “The admissibility of evidence is within the broad discretion of the trial court, and a

ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Abdo v.

Commonwealth, 64 Va. App. 468, 473 (2015) (quoting Blain v. Commonwealth, 7 Va. App. 10,

16 (1988)). In this context, an abuse of discretion occurs where the circuit court makes an error

of law in admitting evidence. See Taylor v. Commonwealth, 28 Va. App. 1, 9 (1998).

       Prior to trial, Amonett was presented with a certificate of analysis regarding the testing

Dr. Reichenbecher had performed on the seized marijuana. Amonett subpoenaed

Dr. Reichenbecher to appear at a preliminary hearing held in General District Court of Fairfax

County on April 26, 2016. Dr. Reichenbecher did not appear, and the hearing was continued

until July 26, 2016. Dr. Reichenbecher was again subpoenaed and again failed to appear. The

hearing was continued a third time, to November 1, 2016, where Dr. Reichenbecher again failed

to appear, at which point the hearing was conducted over Amonett’s objection. Despite ignoring

these subpoenas, Dr. Reichenbecher appeared as a witness for the Commonwealth at trial.

Amonett filed a motion in limine when Dr. Reichenbecher was called, objecting that he was not

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able to challenge the evidence at the preliminary hearing, per Code § 19.2-187.1(F), which

provides, in pertinent part, that

                [t]he accused in any hearing or trial in which a certificate of
                analysis is offered into evidence shall have the right to call the
                person performing such analysis or examination or involved in the
                chain of custody as a witness therein, and examine him in the same
                manner as if he had been called as an adverse witness.

        Addressing this argument requires us to engage in statutory interpretation. In doing so,

we “have but one object, to which all rules of construction are subservient, and that is to

ascertain the will of the legislature, the true intent and meaning of the statute, which are to be

gathered by giving to all the words used their plain meaning.” Lucy v. Cty. of Albemarle, 258

Va. 118, 129-30 (1999) (quoting Tyson v. Scott, 116 Va. 243, 253 (1914)). Further, we

“constru[e] all statutes in pari materia in such manner as to reconcile, if possible, any discordant

feature which may exist, and make the body of the laws harmonious and just in their operation.”

Id.

        Initially we note that Amonett alleges no procedural fault with respect to Code

§ 19.2-187.1(F) regarding the testimony of Dr. Reichenbecher at his trial. He essentially argues

that Dr. Reichenbecher should not have been permitted to testify in his circuit court trial because

of error he alleges occurred during his preliminary hearing in a different court. The criminal

appellate jurisdiction of this Court is limited to reviewing error in the circuit courts of the

Commonwealth. See Code § 17.1-405(1). Moreover, despite its inclusive phrasing, the

language “in any hearing or trial,” found in Code § 19.2-187.1 is inapplicable to a preliminary

hearing. Code § 19.2-187.1(A) begins “[i]n any trial and in any hearing other than a preliminary

hearing, in which the attorney for the Commonwealth intends to offer a certificate of analysis.”

That this caveat was intended to apply to Code § 19.2-187.1(F) is obvious from an in pari

materia reading of other related statutes. For example, Code § 19.2-187(A) provides a different

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procedure for introducing a certificate of analysis in a preliminary hearing, and then refers the

reader to Code § 19.2-187.1(A) as an alternative means of validation:

                In any hearing or trial of any criminal offense or in any proceeding
                brought pursuant to Chapter 22.1 (§ 19.2-386.1 et seq.), a
                certificate of analysis of a person performing an analysis or
                examination, duly attested by such person, shall be admissible in
                evidence as evidence of the facts therein stated and the results of
                the analysis or examination referred to therein, provided that (i) the
                certificate of analysis is filed with the clerk of the court hearing the
                case at least seven days prior to the proceeding if the attorney for
                the Commonwealth intends to offer it into evidence in a
                preliminary hearing or the accused intends to offer it into evidence
                in any hearing or trial, or (ii) the requirements of subsection A of
                § 19.2-187.1 have been satisfied and the accused has not objected
                to the admission of the certificate pursuant to subsection B of
                § 19.2-187.1.

Code § 19.2-187(A).

        The disjunctive “or” as used in the statute provides the Commonwealth with the

opportunity of filing the certificate seven days prior to a preliminary hearing or satisfying the

Code § 19.2-187.1(A) requirements. Likewise, Code § 19.2-183(D), discussing procedure

during preliminary hearings, states that “[a]t any preliminary hearing under this section,

certificates of analysis and reports prepared pursuant to §§ 19.2-187 and 19.2-188 shall be

admissible without the testimony of the person preparing such certificate or report.” Read

together, these statutes clearly indicate that at a preliminary hearing the Commonwealth may

introduce the certificate itself.1

        Amonett does not assert that the certificate was not filed seven days in advance of the

preliminary hearing.


        1
          Code § 19.2-187.1(F) prescribes no remedy for its violation. It is a directory statute
stating that the accused “shall” have the right to call the scientist performing the analysis. “[A]
‘shall’ command in a directory statute carries no specific, exclusive remedy. Instead, it
empowers the court to exercise discretion in fashioning a tailored remedy, if one is called for at
all.” Rickman v. Commonwealth, 294 Va. 531, 537 (2017). As such, exclusion of evidence is
not the only remedy, nor even the most obvious remedy, for a breach of this statutory right.
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       Moreover, ample other evidence also showed that the substance confiscated was

marijuana—indeed Amonett himself testified that it was “high quality” marijuana. The jury, in

its fact-finding capacity, could certainly have taken Amonett at his own word in the absence of

Dr. Reichenbecher’s testimony and found that the substance was marijuana, rendering the same

verdict and any potential error necessarily harmless. For all of these reasons, we find no merit to

this assignment of error.

                                       III. CONCLUSION

       Amonett provides neither case law nor, crucially, a sufficient record to support his

proposition that promises of leniency made by the police constitute a binding immunity

agreement requiring dismissal of the indictment or rendering Amonett’s incriminating statements

involuntary or otherwise subject to suppression. We also hold that the circuit court correctly

concluded that the existence of such an agreement is not a proper question for the jury. Finally,

we discern no error in the admission of Dr. Reichenbecher’s testimony, which substantively

echoed Amonett’s own on the key point that the substance seized by police was marijuana. For

these reasons, the judgment of the circuit court is affirmed.

                                                                                         Affirmed.




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