Opinion
Record No. 0095-92-3
April 6, 1993
FROM THE CIRCUIT COURT OF THE CITY OF CLIFTON FORGE DUNCAN M. BYRD, JR., JUDGE.
Dueward H. Scott, Jr., for appellant.
Leah A. Darron, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Coleman.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Cecil Marion Aldridge, Jr. was convicted in a bench trial of selling cocaine in violation of Code § 18.2-248. He appeals on the ground that the Commonwealth violated his due process rights by delaying eighteen months to indict him and that the evidence was insufficient to support his conviction.
On December 7, 1989, Thomas Carr was working for the Clifton Forge Police as an undercover informant of drug transactions. He wore a wire so that the police could monitor his conversations. That evening, Vincent Cooper approached Carr and told him that he knew where Carr could buy some cocaine. Carr then drove Cooper, at Cooper's direction, to Cecil Aldridge's apartment. Carr gave Cooper $100 with which to purchase the cocaine. Cooper went in Aldridge's apartment while Carr remained in his vehicle. Cooper returned and gave Carr a substance that was determined to be cocaine.
At trial, Cooper testified that Aldridge had been at home and had sold him the cocaine that he delivered to Carr. He testified that Aldridge had packaged the cocaine that he sold to Cooper. According to Cooper, Aldridge also gave Cooper $10 and two lines of cocaine as a commission. Carr testified that he had not seen or heard the person from whom Cooper had purchased the cocaine.
Aldridge denied that he had sold cocaine to Cooper. He claimed that he was not at home on the evening of December 7, 1989, and that he was visiting his parents and uncle for dinner. Aldridge claimed that Cooper was testifying falsely and was attempting to frame him to take revenge for his having fired Cooper in April, 1990, after learning that Cooper had been indicted for the December 7 drug sale. Aldridge testified that Cooper had been an employee at his auto repair shop. He testified that Cooper often came by his apartment to borrow money to buy food and other items for his children and that he had on occasion furnished Cooper with an automobile and alcohol. Aldridge produced several witnesses who testified to having heard Cooper threaten to take revenge on Aldridge. Aldridge did not produce his parents or uncle as alibi witnesses because, he said, his parents were not physically able to testify, and his semi-retarded uncle could not remember the events of December 7, 1989.
Cooper, who had previously pled guilty to his role in the drug transaction, testified that he did not tell the police or identify Aldridge as his source until his sentencing hearing in April, 1991. He testified that he received no consideration for testifying against Aldridge, and he denied having made any statements that he wanted revenge against Aldridge for firing him. The Commonwealth indicted Aldridge on May 6, 1991, after Cooper had identified him as his drug source at his sentencing hearing in April, 1991.
The trial judge denied Aldridge's motion to strike the evidence as being insufficient and, at the close of all the evidence, found Aldridge guilty as charged.
We first address Aldridge's claim that the Commonwealth denied him due process by delaying eighteen months from the date of the offense to indict him. Aldridge's claim is procedurally barred.See Rule 5A:18; Jones v. Commonwealth, 230 Va. 14, 18 n. 1, 334 S.E.2d 536, 539 n. 1 (1985); Parnell v. Commonwealth, ___ Va. App. ___, ___, 423 S.E.2d 834, 838 (1992). He failed to raise the issue at trial, and we will not consider it for the first time on appeal. An accused can waive a constitutional claim by failing to raise it timely. Parnell, ___ Va. App. at ___, 423 S.E.2d at 838. We refuse to address the constitutional question because Aldridge failed to raise it at trial.
As to whether the evidence was sufficient to prove that Aldridge was the person who sold Cooper cocaine, on appeal we must consider the evidence in the light most favorable to the Commonwealth and grant to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975); Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). The credibility of witnesses and the weight accorded their testimony are matters solely for the fact finder, who has the opportunity to see and hear the witnesses, to observe their demeanor, and to weigh their explanation of events. Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985); Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175, 176 (1991). The trial judge's finding that a witness is credible "may only be disturbed on appeal if this Court finds that [the witness'] testimony was 'inherently incredible, or so contrary to human experience as to render it unworthy of belief.'" Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984)); see also Yates v. Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987). A trial court's judgment will not be disturbed on appeal unless it is plainly wrong or without evidence to support it. Code § 8.01-680;Stockton v. Commonwealth, 227 Va. 124, 145-46, 314 S.E.2d 371, 381 (1984), cert. denied, 489 U.S. 1071 (1989). Applying this standard, we find that the evidence was sufficient to support Aldridge's conviction.
Aldridge asserts that his conviction cannot rest solely upon the testimony of Cooper, a convicted felon, who had a motive for framing him. However, an accused may be convicted upon the uncorroborated testimony of an accomplice. Yates, 4 Va. App. at 143, 355 S.E.2d at 15-16. Cooper's testimony would be legally insufficient to convict Aldridge only if we could say, as a matter of law, that it was inherently incredible and unworthy of belief. Id.
The trial judge, having observed Cooper testify and having evaluated his credibility as a witness, found Cooper's testimony to be worthy of belief. The trial judge's finding is supported by the evidence and, therefore, we cannot conclude that Cooper's testimony was "inherently incredible, or so contrary to human experience as to render it unworthy of belief." Robertson, 12 Va. App. at 858, 406 S.E.2d at 419.
Although Cooper's testimony identifying Aldridge as the person who supplied him cocaine was uncorroborated, it was otherwise consistent with and corroborated by the testimony of the informant Carr and the police officer as to the events leading up to when Cooper entered Aldridge's apartment. By contrast, the judge could have found Aldridge's testimony not to have been credible. He could have found that the evidence did not support Aldridge's theory that Cooper had a motive to frame Aldridge. Cooper did not implicate Aldridge in the drug sale until eighteen months after Aldridge had fired Cooper. Furthermore, Cooper, who had already been convicted for the December 7 drug sale, received nothing in exchange for his testimony against Aldridge. Finally, Aldridge offered no explanation as to why Cooper would have feigned obtaining cocaine from Aldridge by going to his apartment on December 7, 1989, a time when both were still on friendly terms. From this evidence, the trial judge was entitled to find Cooper's testimony to be credible. Accordingly, we find no error in the trial court's judgment against Aldridge.
Affirmed.
To sustain a conviction the Commonwealth must prove every material element of the offense beyond a reasonable doubt. When the Commonwealth relies on circumstantial evidence to carry that burden, "all necessary circumstances proved must be consistent with guilt and exclude every reasonable hypothesis of innocence." Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976).
It is true that in Virginia "an accused may be convicted upon the uncorroborated testimony of an accomplice." However, this does not alter the fact that the evidence must be sufficient to prove "the guilt of the accused beyond a reasonable doubt." When assessing the weight of the evidence, the trier of fact should weigh with great care and caution the uncorroborated testimony of an accomplice because "the source of accomplice testimony is tainted with the temptation to exculpate oneself by laying the crime upon another." The testimony of an accomplice will be considered corroborated only when it is confirmed "in material facts" which tend to establish guilt of the accused.
Yates v. Commonwealth, 4 Va. App. 140, 145, 355 S.E.2d 14, 16-17 (1987) (citations omitted) (Benton, J., dissenting). No evidence corroborated Vincent Cooper's testimony. Moreover, I believe his testimony was so tainted by the spectre of exculpation that it did not exclude every reasonable hypothesis of innocence.
The evidence at trial proved that a state police informant met Cooper on the street on December 7, 1989, when the informant was attempting to purchase cocaine for the state police. The informant asked Cooper if Cooper could get cocaine for him. Cooper said he could. Cooper entered the informant's automobile and directed the informant to drive near an apartment building and park. Before Cooper left the automobile, the informant gave him $100 and asked for a gram of cocaine. Cooper went inside a door to an apartment building. Cooper testified that he went into the building and knocked on Cecil Aldridge's door. However, no one saw Cooper knock on Aldridge's apartment door. No one saw Cooper enter Aldridge's apartment. Indeed, no evidence proves whether anyone was in Aldridge's apartment that evening. After several minutes, Cooper returned to the automobile and gave the informant a piece of cocaine wrapped in cellophane. The informant said he broke off a piece of the cocaine and gave it to Cooper for his use. Cooper denied that the informant gave him cocaine.
Four months later, Cooper was indicted and arrested for selling or distributing cocaine. Two days after his arrest, he was released from jail. Aldridge, who employed Cooper in his automotive business, terminated Cooper's employment after Cooper's arrest and told him not to return to his business. More than a year later and after Cooper was convicted of two counts of selling and distributing cocaine, Cooper first accused Aldridge of being the person who sold cocaine to him in December 1989.
By upholding a criminal conviction based upon the uncorroborated testimony of a narcotics user and dealer under the factual circumstances presented in this case, this Court exposes every citizen to the risk of false and baseless criminal charges. The appellate process employed in this case — the use of talismanic litanies that defer to the fact finder when it accepts the uncorroborated exculpations of one who has been convicted and is seeking to shift culpability for the crime to another — ignores this Court's constitutional responsibilities. This Court is obliged to assure that the evidence proved beyond a reasonable doubt Aldridge's guilt. Jackson v. Virginia, 443 U.S. 307, 316 (1979).
The majority posits that Aldridge "offered no explanation as to why Cooper would have feigned obtaining cocaine from Aldridge by going into his apartment . . . when both were still on friendly terms." Except for Cooper's trial testimony, no evidence proved that Cooper entered Aldridge's apartment or feigned entering Aldridge's apartment. The police officer and the informant merely observed Cooper enter the common area vestibule that led to apartments. That evidence is consistent with a conclusion that Cooper used the vestibule as a place to hide his stash of cocaine. Moreover, Cooper did not implicate anyone as a source until he was convicted. Aldridge was not indicted until May 1991. At that time, Cooper harbored animosity toward Aldridge and Cooper was a convicted felon exposed to a penitentiary sentence. The favors invariably bestowed upon a narcotics dealer who is perceived to be cooperating with authorities to rid society of a scourge are well known and create incentives to fabricate. Those practices and this Court's approach to corrections based upon those practices should be viewed with great skepticism. We are dealing with individuals who have inflicted upon society the identical harm they allegedly seek to remedy. Their motives to fabricate and falsify their testimony are palpable. They are, simply put, inherently suspect as credible witnesses and this court has an obligation to deal with them as such.
Cooper could have identified any person who lived in that apartment building as his source of cocaine. Indeed, except for Cooper's testimony, no evidence makes it more likely than not that Aldridge, rather than another resident of the building, sold the cocaine to Cooper. Except for Cooper's testimony, no evidence makes it more likely than not that Cooper in fact purchased cocaine in the building rather than merely retrieving cocaine he had earlier hidden in the vestibule.
Simply put, the Commonwealth's case against Aldridge rested upon the uncorroborated testimony of Cooper, who was an admitted cocaine user, a narcotics dealer, and a convicted felon, and who had sworn to get revenge on Aldridge. Aldridge fired Cooper in 1990, after Cooper was arrested for distributing narcotics. That action occurred a year before Cooper implicated Aldridge. Three persons testified that Cooper had expressed ill will toward Aldridge and sworn revenge after Aldridge had fired Cooper.
In addition, Cooper's testimony as to what allegedly transpired between Aldridge and him was not corroborated in any respect. Cooper's testimony concerning only the events leading up to his entry to the apartment building was corroborated. However, this testimony merely showed that Cooper entered and exited the building where Aldridge's apartment was located. A fatal gap in the evidence exists because the surveillance that was in place could not confirm Cooper's testimony that he entered Aldridge's apartment. See People v. Blackshear, 261 Cal.App.2d 65, 68, 67 Cal.Rptr. 662, 664 (1968). A "gap in observation" requires reversal because the evidence is consistent with the hypothesis that when Cooper was out of sight of the police, he obtained the narcotics from another source.See People v. Basler, 217 Cal.App.2d 389, 395-396, 31 Cal.Rptr. 884, 888 (1963); People v. Bazemore, 25 Ill.2d 74, 77, 182 N.E.2d 649, 650 (1962). Cooper's own testimony proved that on previous occasions he had been in the building and, thus, was familiar with the layout.
Furthermore, before Cooper entered the building, the officers did not search him to determine whether he had money or drugs concealed on his person. The reason law enforcement agencies conduct pre-sale searches of narcotics users and other informants "'is to prevent an informant from hiding on his person narcotics which he may later claim were obtained from another person.'" Basler, 217 Ca. App.2d at 394, 31 Cal.Rptr. at 887 (citation omitted). Therefore, notwithstanding the narcotic dealer's testimony that a narcotics transaction took place within Aldridge's apartment, the Commonwealth did not prove that Cooper, the convicted narcotics dealer, did not have the cocaine in his possession before entering the building.Blackshear, 261 Cal.App. at 68, 67 Cal.Rptr. at 664. It is just as likely that Cooper kept that $100 and produced the cocaine from his person or from a hiding place. Id.; People v. Rivera, 59 A.D.2d 874, 875, 399 N.Y.S.2d 662, 664 (1977).
Although Cooper identified Aldridge as the person who supplied him the cocaine, the Commonwealth presented no evidence that Aldridge was in his apartment when Cooper entered the building.See People v. Minor, 70 Ill. App.2d 464, 470, 217 N.E.2d 316, 319 (1966); Rivera, 59 A.D.2d at 875, 399 N.Y.S.2d at 664. Aldridge testified that he was not at home on December 7, 1989 until around 9:00 p.m. Furthermore, Cooper first implicated Aldridge at his sentencing hearing more than one year after Cooper sold the cocaine.
"[It] cannot [be said] after a searching analysis of the record that the entirely uncorroborated testimony of [Cooper] is so clear, satisfactory and convincing as to remove all reasonable doubt of [Aldridge's] guilt. This is not a case where the informer's accusation receives corroboration from close police surveillance of the transaction, from an immediate arrest, or from the finding of marked money on the accused but one which developed in such a way that the informer was at liberty to name almost any person he wished to select as the guilty one."
Minor, 70 Ill. App.2d at 469, 217 N.E.2d at 318 (quotingBazemore, 25 Ill. 2d at 77, 182 N.E.2d at 651).
Once Cooper entered the apartment building, no surveillance by police monitored any portion of Cooper's activities. Moreover, the record contains no evidence that Aldridge had on his person or at his apartment any narcotics when he was arrested. Indeed, no evidence corroborated Cooper's testimony.Minor, 70 Ill. App.2d at 470, 217 N.E.2d at 319 (citation omitted). The circumstances proved in this case leave manifest a reasonable doubt. The failure to carefully scrutinize the uncorroborated testimony of narcotics addicts unnecessarily exposes citizens to the risk of wrongful conviction. "Considering the evil of narcotics traffic and the stealth with which it is conducted, . . . we must consider that the informer would doubtless go to extremes to curry . . . favor."Bazemore, 25 Ill. 2d at 78, 182 N.E.2d at 651. Absent corroboration of Cooper's testimony in some material aspect, I would hold that the Commonwealth has failed to prove Aldridge's guilt beyond a reasonable doubt.
I dissent.