Opinion
Record No. 0223-94-2
Decided: March 14, 1995
FROM THE CIRCUIT COURT OF HENRICO COUNTY, Lee A. Harris, Jr., Judge
William T. Linka (John B. Boatwright, III; Boatwright Linka, on brief), for appellant.
John H. McLees, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Coleman, Elder and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Jeffrey Allred (appellant) appeals his conviction for conspiracy to distribute cocaine in violation of Code Sec. 18.2-256. Appellant contends (1) the trial court erred in refusing to grant his Batson motion, and (2) there was insufficient evidence to prove appellant conspired to distribute cocaine. Because we hold that the trial court committed no error, we affirm appellant's conviction.
The record reveals that Bobby Whittington met appellant in January of 1993 and purchased quantities of cocaine from appellant in that month and thereafter on five occasions. Eventually, appellant started "fronting" Whittington four or five ounces of cocaine at a time.
On May 24, 1993, police placed a recording device on Whittington's body after he agreed to participate in a police-monitored transaction with appellant. Appellant and Whittington completed a transaction for thirteen ounces of cocaine in apartment 24 of Quarter Creek Apartments. Whittington later rendezvoused with a police agent, where he produced two separate bags of cocaine he had purchased earlier from appellant. Police thereafter executed a search warrant on apartment 24 and found three $100 bills in appellant's pocket that matched the serial numbers of the bills given to Whittington before the purchase, along with other evidence consistent with drug distribution.
The record indicates appellant is black. The Commonwealth's Attorney's peremptory challenges were used to strike two white women and two black women from the venire. The white women were struck because of hearing problems. The Commonwealth's Attorney struck the two black women because he claimed that they had not been paying attention to the trial judge when he was giving instructions, and one had been smiling at appellant. There were five black venire members on the panel, leaving three to sit on the jury after the Commonwealth's strikes. After appellant made a motion to dismiss the jury, the trial court accepted the Commonwealth's explanation as to why the two black women were struck.
Appellant was convicted and sentenced to ten years in the penitentiary and a fine of $10,000.
I. Batson Challenge
We first hold that the trial court did not err in refusing to grant appellant's motion to dismiss the jury. Cases that have applied the rationale of Batson v. Kentucky, 476 U.S. 79 (1986), require a three step process for evaluating claims that a party used peremptory challenges in a manner violative of the Equal Protection Clause.
First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citations omitted); see Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415 (1994); James v. Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398 (1994). If the trial court determines that the prosecutor's proffered reasons are race-neutral, the defendant should be afforded an opportunity to show why the reasons, even though facially race-neutral, are merely pretextual and that the challenged strikes were based on race. Buck, 247 Va. at 451, 443 S.E.2d at 415; James, 247 Va. at 461-62, 442 S.E.2d at 398.
" 'The trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.' " Winfield v. Commonwealth, 14 Va. App. 1049, 1049, 421 S.E.2d 468, 469 (1992) (en banc) (quoting Hernandez, 500 U.S. at 364).
Here, the Commonwealth's concerns with jurors who were not paying attention, one of whom was seen smiling at appellant, provided sufficient race-neutral explanations for the use of two of its peremptory strikes. The Commonwealth's explanation rebuts any presumption of purposeful discrimination, and nothing in the record shows that the reasons were pretextual. See Chichester v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___ (1994); United States v. Bentley-Smith 2 F.3d 1368, 1374 (quoting Polk v. Dixie Ins. Co., 972 F.2d 83, 86 (5th Cir. 1992) (per curiam), cert. denied, 113 S.Ct. 982 (1993)) (citations and emphasis omitted); Reynolds v. Benfield, 931 F.2d 506, 512 (8th Cir.), cert. denied, 501 U.S. 1204 (1991); United States v. De La Rosa, 911 F.2d 985, 991 (5th Cir. 1990), cert. denied, 500 U.S. 959 (1991).
II. SUFFICIENCY OF THE EVIDENCE
Second, we hold that the evidence was sufficient to prove beyond a reasonable doubt that appellant conspired to distribute cocaine.
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 and accord to the evidence all reasonable inferences fairly deducible therefrom. . . . The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). Based upon the evidence in the record, and the holdings in Edwards v. Commonwealth, ___ Va. App. ___, ___, 441 S.E.2d 351, 353 (1994), and Zuniga v. Commonwealth, 7 Va. App. 523, 527-28, 375 S.E.2d 381, 384 (1988), we hold that the relationship between appellant and Whittington constituted a series of transactions designed to distribute cocaine to third parties. Whittington testified that appellant knew of his intended illegal use, namely, to distribute the cocaine to third parties after it was purchased from appellant. Zuniga, 7 Va. App. at 529, 375 S.E.2d at 385. Additionally, there was sufficient evidence to show appellant "intend[ed] to further, promote, and cooperate in" Whittington's redistribution of the cocaine. Id.
Finally, just as in Zuniga, appellant sold cocaine to Whittington on partial credit and expected payment of the balance after Whittington had sold the cocaine to his customers. Id. at 531, 375 S.E.2d at 386. The circumstances of the monitored undercover sale provided a credible basis with which to support the jury's determination that an ongoing scheme to distribute cocaine existed before the undercover sale.
While it is true that persons acting as police agents cannot form an intent to conspire, see Fortune v. Commonwealth, 12 Va. App. 643, 647-48, 406 S.E.2d 47, 49 (1991), the Commonwealth presented credible evidence that the agreement occurred before Whittington became an undercover agent for the Commonwealth. While Whittington's testimony about events that occurred before he became a police agent were uncorroborated, it was within the fact finder's province to credit Whittington's testimony as being credible, especially in light of the information garnered from the undercover operation. See, e.g., Love v. Commonwealth, ___ Va. App. ___, ___, 441 S.E.2d 709, 713 (1994); Corvin v. Commonwealth, 13 Va. App. 296, 299, 411 S.E.2d 235, 237 (1991).
Accordingly, we affirm appellant's conviction.
Affirmed.