Opinion
Record No. 0134-94-4
Decided: March 21, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Robert W. Wooldridge, Judge
Tamara L. Crouch for appellant.
John H. McLees, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Willie Brown Meekins (appellant) was convicted of attempted distribution of a controlled substance. On appeal, appellant asserts that (1) the trial court erred in refusing to disqualify a juror who expressed concern, mid-trial, about continued service because she realized during the presentation of the Commonwealth's case that she was familiar with the location of the events, and (2) the evidence was insufficient to establish that he had the intent to distribute a controlled substance. Finding no error, we affirm.
I.
On July 22, 1993, Fairfax County Police Investigator Christopher Thomas, working undercover, approached a group of people, which included appellant, sitting on a balcony at the Alexandria Motel. Thomas asked about obtaining drugs. The group responded angrily, calling him a police officer and telling him to leave. Thomas walked to the front of the motel and appellant approached him there, asking him what drug, and in what quantity, he wanted. Thomas said he wanted two "twenties," meaning two twenty-dollar rocks of cocaine.
Appellant told Thomas that it would be a better deal to purchase one fifty-dollar rock of cocaine. He bragged that he had made three sales of cocaine that evening and that his "man" from Maryland would bring the drugs. Appellant used a laundromat phone booth to call Brian Nelson's pager. Thomas gave appellant $50 from police funds. Nelson arrived in a truck with Maryland tags. He picked up appellant, who had been waiting at a bus stop, and drove to a parking lot. As instructed, Thomas waited at a 7-Eleven store.
After a few minutes, the truck pulled out and drove to the Alexandria Motel, where appellant got out. The truck drove away. The $50 of police funds was found in the truck, but no cocaine was found there. Appellant was discovered in the closet of a room at the motel, however, no drugs were found on his person or in the room.
At trial, during jury voir dire, juror Johnson gave no indication that she was not qualified to sit as a juror in the case. After the Commonwealth presented its case, she sent word to the court that she had concerns about whether she could continue to serve on the jury because she lived near the area where the activities described at trial had occurred.
The court questioned juror Johnson about her misgivings. She said that she passed through the area frequently and was familiar with it. She did not know any of the persons mentioned in the case and was unable to visualize the apartment complex spoken of during testimony. When asked why she had reservations about continued service on the jury, she responded, "Likelihood of seeing people again or just that I am knowledgeable about the area, I don't feel comfortable with it." The court ruled that her familiarity with the area was not a basis for disqualification.
Appellant testified that he never intended to sell cocaine to Thomas, but only to cheat him out of $50. He stated that he owed Brian Nelson $50, and used the opportunity with Thomas to repay the debt. Appellant said that he knew that Thomas was a police officer but was not concerned about taking police funds.
II.
Appellant first contends that the trial court should have removed juror Johnson from the jury after she expressed her concerns because she demonstrated bias, based either on her fear of retaliation or her personal knowledge of the scene as a high volume drug area. Appellant also contends that, once Johnson voiced her reservations with continued jury service, the court was obliged to question her specifically as to whether her discomfort would affect her partiality.
On appeal, we must defer to the trial court's decision to exclude or retain a juror because the trial court "has seen and heard" the juror and is in a better position than this Court to determine if his or her performance would be impaired. Stewart v. Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402, cert. denied, 114 S.Ct. 143 (1993). "Accordingly, a trial court's decision on these issues will not be reversed on appeal without a showing of 'manifest error.' " Id. (quoting Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 824 (1991)).
The trial court's resolution of any ambiguity in a juror's responses is subject to deference from this Court. See Weeks v. Commonwealth, 248 Va. 460, 475, 450 S.E.2d 379, 389 (1994) (where juror, whom court refused to strike, stated, "I think so," in response to question, appellate court must presume juror emphasized "so" rather than "think").
Although the court did not explicitly ask Johnson whether she could continue to be impartial in light of her realization that she knew the area where the incidents occurred, the court gave her an opportunity to tell it anything she wanted about her concerns. The court did not ask a series of leading questions designed to insure responses which would not disqualify the juror.
Johnson expressed only her personal discomfort at the prospect of continued service, not a concern that she could not fairly and impartially consider the evidence. A juror's reluctance to serve is not a basis for disqualification. See Calhoun v. Commonwealth, 226 Va. 256, 262, 307 S.E.2d 896, 900 (1983).
We cannot say that the court committed "manifest error" in refusing to strike Johnson under these circumstances. Cf. Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 387-90, 349 S.E.2d 903, 906-08 (1986) (where, after opening statement, juror realized her familiarity with accused bookstore and "unequivocally stated" her "great prejudice" against it, court erred in not dismissing or making more substantive probe of juror).
III.
Appellant also contends that the evidence was insufficient to sustain his conviction because the Commonwealth failed to establish that he intended to distribute a controlled substance.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). To establish an attempted crime, the Commonwealth must prove the intent to commit the crime and a direct, but ineffectual act made toward the crime's commission, amounting to " 'the commencement of the consummation' " of the crime. Chittum v. Commonwealth, 211 Va. 12, 15, 174 S.E.2d 779, 781 (1970) (citation omitted). The intent may be established by circumstantial evidence, including the acts or statements of the accused. See Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969).
Appellant, using the slang of the drug culture, discussed quantity and price of cocaine with Thomas and told Thomas he already had made three sales that evening. He assured Thomas that he could secure $50 worth of cocaine from his man from Maryland. Appellant telephoned Brian Nelson's pager, took Thomas' $50, and got into Nelson's truck when it arrived. These statements and actions support the jury's conclusion that appellant intended to distribute cocaine to Thomas.
The jury was not required to accept appellant's explanation that he only intended to cheat Thomas out of his money, not to supply him with drugs. Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988). See Castaneda v. Commonwealth, 7 Va. App. 574, 584, 376 S.E.2d 82, 87 (1989) (en banc). The jury was entitled to conclude that appellant lied and infer that he was untruthful in order to conceal his guilt. Daung Sam v. Commonwealth, 13 Va. App. 312, 320, 411 S.E.2d 832, 837 (1991).
The record affirmatively showed that appellant lied when he said he did not call Nelson's pager. He also lied to Investigator Call about his whereabouts. Furthermore, the jury reasonably could find appellant's testimony that he knew Thomas was a police officer but was not concerned about stealing police funds, was incredible. The jury reasonably could have concluded that appellant intended to sell Thomas cocaine, but was thwarted in his efforts by Nelson.
For these reasons, we affirm Meekins' conviction.
Affirmed.