Brown v. Commonwealth , 10 Va. App. 73 ( 1990 )

Opinion

DUFF, J.

Joseph N. Brown was convicted by jury of conspiracy to distribute heroin. He was sentenced to ten years in prison and the payment of a fine of $20,000. On appeal he argues that (1) the evidence was insufficient to establish guilt beyond a reasonable doubt; (2) the trial judge erred by failing to grant his motions to strike; (3) the trial judge erred by refusing to grant his motion for a continuance; and (4) the trial judge erred in denying his motion for a change of venue. Upon review of the record and the authorities cited, we affirm the conviction.

I.

Joseph N. Brown was indicted in December, 1987 and charged with conspiracy to distribute heroin. The transactions which led to the indictment involved Brown, James E. Smith, and Gilbert Gray.

At trial, Gilbert Gray testified that he met Brown on April 15 and asked Brown to obtain heroin for him. Brown agreed to do so and Gray paid him $500, in advance, for the purchase. That same day, five calls were made to James Smith’s pager from a pay telephone at the Oxon Hill Ramada Inn Hotel.¹ Having determined that defendant Brown’s pager code was “00,” the investigators learned that each of the five calls to Smith were from Brown. Detective Hampton of the Metropolitan Police observed Brown’s vehicle, a maroon Mercedes, at the Ramada where the pay phone was located. Detective Hampton then observed Brown emerge from the hotel and proceed to the Sea Shell Restaurant. While Brown was in the Sea Shell Restaurant, Detective Neal, also of the Metropolitan Police, observed Brown conversing with Gilbert Gray. While Brown was in the restaurant, the clone pager indicated that a pay phone inside the restaurant was used to call Smith’s pager. Later that evening two more calls were made from code “00” to Smith’s pager, one from the Ramada and one from the Sea Shell Restaurant.

Gray gave a statement to the Virginia State Police in which he said that when he met Brown again on April 16, Brown offered to pay him “for helping him move some things to Richmond.” Brown then told Gray to “go ahead and he would catch up with me [Gray] or meet him at the Hardees right off Chamberlayne Avenue.”

On April 16, the detectives followed a flurry of pager activity, verifying the information gained from the clone pagers through visual observation of the suspects at various telephones. The detectives observed Brown, driving Gray’s Oldsmobile, following a blue Volvo belonging to Freda Brown, but driven by Gray. George Wright, a friend of Gray’s, was a passenger in the front seat of the Volvo. James Smith then joined Brown in the front seat of the Oldsmobile and was observed reaching down toward the floor of the car. Shortly thereafter, Smith was seen walking rapidly toward the door of an apartment house.

Both the Oldsmobile and Freda Brown’s Volvo were seen together again at the Wingate Apartments a short time later that day. Brown and Gray switched cars and Gray, now driving the Oldsmobile, headed out of town. According to the testimony of Wright, when he realized that Gray was leaving without him he requested that Brown catch Gray. Brown did so, and shortly after 2:00 p.m. the cars pulled into a gas station in Virginia, where Wright got in the car with Gray and Brown used a pay phone. The police verified, through visual observation and the clone, that Brown was again making a call to Smith’s pager. A few minutes later, Brown answered Smith’s return call on the pay phone, turned and conversed briefly with Wright and Gray, then left. The Oldsmobile, containing Wright and Gray, proceeded south on I-95, followed by Detective Hampton.

Gray and Wright stopped briefly at a drug store to get cigarettes, scotch tape and sinus medicine. The car was eventually stopped on 1-95 in Hanover County where, upon search of the car, two packets of heroin were discovered, one above the sun visor and the other under the front passenger seat. The two packets contained over 67 grams of heroin and quinine.

II.

Counsel for the defendant contends that on February 22, 1988, prior to being retained, he appeared at a bond hearing on behalf of the defendant. At that time, counsel informed the trial court that he had not been retained and would not be trying the case unless he was retained.

Counsel ultimately was hired by the defendant on March 21, 1988, and a motion for discovery was filed on March 22. In response, the Commonwealth provided discovery on March 25. Defendant’s counsel asserts that, by the evening of March 31, it was clear to him that a defense could not be fully prepared for trial on April 5 due to his inability to locate two out-of-state witnesses. A written motion for a continuance was filed on April 1, 1988. This motion was denied in a hearing held on April 4, 1988.

“The grant or denial of a continuance lies within the sound discretion of the trial judge.” Snurkowski v. Commonwealth, 2 Va. App. 532, 535, 348 S.E.2d 1, 2 (1986). In this case, the April 5 trial date was set on February 22, 1988. At that time, defendant certainly knew that he would need to begin gathering his evidence and, if he so chose, employ legal counsel. The defendant delayed retaining counsel; as a result, the motion for a continuance was not filed until April 1, 1988. Under these circumstances, we find no abuse of discretion in denying a continuance.

III.

When reviewing the sufficiency of evidence on appeal, the evidence will be viewed in the light most favorable to the Commonwealth, granting to it all inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Proof of an explicit agreement to distribute a controlled substance is not required; the agreement may be proved by circumstantial evidence. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982). In fact, the nature of conspiracy is such that “it often may be established only by indirect and circumstantial evidence.” Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978). With this in mind, it is clear that the Commonwealth proved, by circumstantial evidence, that a conspiracy existed.

“Conspiracy is defined as ‘an agreement between two or more persons by some concerted action to commit an offense.’ ” Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)); see Amato v. Commonwealth, 3 Va. App. 544, 551, 362 S.E.2d 4, 8 (1987). “[A] common purpose and plan may be inferred from a ‘development and collocation of circumstances.’ ” United States v. Godel, 361 F.2d 21, 23 (4th Cir.), cert. denied, 385 U.S. 838 (1966) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). Where, as here, it has been shown that the defendants “by their acts pursued the same object, one performing one part and the others performing another part so as to complete it or with a view to its attainment, the jury will be justified in concluding that they were engaged in a conspiracy to effect that object.” Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987) (quoting 16 Am. Jur. 2d Conspiracy § 42 (1979)). We find ample evidence in the record from which the jury could have found that Brown, Smith and Gray conspired to distribute heroin. The events of April 15 and 16, 1986, support the inference that Brown acted in concert with Smith and Gray to distribute heroin.

On April 15, Gray approached Brown and requested that he purchase drugs for him. At that time, Gray paid Brown $500, in advance, for the purchase. It is reasonable to infer from the evidence that Brown and Gray intended that Brown contact a third party to purchase the drugs. It also is reasonable to infer that the third party was Smith.

More than ten times on April 15 and 16, Brown’s “00” code contacted Smith’s pager. On most of those occasions, Brown was visually observed immediately thereafter receiving calls on a pay phone. Between 11:58 a.m. and 12:45 p.m., on April 16, Brown called Smith’s pager three times. At 1:57 p.m. the same day, Smith was seen in the Oldsmobile with Brown, reaching down to the floor. When Brown met Gray at the Wingate Apartments (after meeting with Smith), Brown had a package. This package was in Gray’s Oldsmobile when Wright later met Gray at the gas station outside Richmond.

As noted, Gray testified that Brown had asked him to move some “things” to Richmond for him, and that he would pay him to do so. While at the Wingate Apartments, and after having met with Smith, Brown instructed Gray to drive to Richmond, stating that he would meet him at a predetermined spot. Gray proceeded south on 1-95 with the package beside him in the car.

The record also contains testimony by George Wright, the passenger in Gray’s car, that Gray was aware of the contents of the package he was transporting for Brown. Wright stated that he discovered the contents of the package during his conversation with Gray on the trip to Richmond, and not by examination of the package itself.

It also is clear from the evidence that Gray believed that the heroin belonged to Brown and was not the “purchase” that he had requested of Brown. This inference is best illustrated by the fact that both Gray and Wright testified that they stopped along the way to pick up, among other things, scotch tape. The tape, it was explained at trial, was to be used to reseal the package of heroin in order to conceal the fact that Gray and Wright tore it open during the trip and “snorted” some of the heroin.

Based upon the evidence presented, we cannot say that the evidence was insufficient for a jury reasonably to have concluded that Brown joined with Smith and Gray in a conspiracy to distribute drugs, and that Gray was acting in furtherance of that conspiracy when he was apprehended in Hanover County. While Gray may not have been aware of the identity of Smith, this fact does not preclude him from participation in the conspiracy, for “[liability as a conspirator is not dependent on knowledge of the entire scope of the conspiracy. Knowledge need not extend to all the details of the conspiracy, the identity of the other conspirators.” Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987) (citations omitted).

IV.

Brown next contends that Wharton’s Rule requires that at least three people participate in a conspiracy to distribute heroin. However, Brown misapplies this principle. “Wharton’s Rule” is defined as follows: “When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained.” Stewart v. Commonwealth, 225 Va. 473, 478, 303 S.E.2d 877, 879 (1983) (quoting 2 F. Wharton, Criminal Law § 1604, at 1862 (12th ed. 1932)).

Wharton’s Rule, therefore, will bar conviction for conspiracy to commit a criminal act where only those parties necessary to the commission of the underlying offense are involved in the conspiracy to commit that offense. The defendant maintains that in this case only those parties necessary to commit the crime of distribution were involved in the conspiracy. We disagree.

This case falls within the recognized “third party” exception to the rule. This exception permits prosecution for conspiracy where, as here, the number of conspirators exceeds the essential participants in the contemplated crime. People v. Cabus, 626 P.2d 1159, 1160 (Colo. Ct. App. 1980). We are not faced here with a simple buy-sell agreement. We are faced with a situation where a buyer, Gray, contacted a seller, Brown, with instructions to contact a third party (who would later prove to be Smith) to purchase heroin. This conspiracy goes beyond a mere buy-sell agreement. When Brown agreed to purchase the heroin for Gray, and received payment in advance, the conspiracy was complete. See Brown v. Commonwealth, 3 Va. App. 101, 107, 348 S.E.2d 408, 411 (1986). The inclusion of a third party where, at the most, only two parties were necessary, takes this case out of the scope of Wharton’s Rule and firmly into the realm of conspiracy.

Further, Gray, at the direction of Brown and in anticipation of receiving payment, proceeded toward Richmond with full knowledge that he was transporting drugs. These actions do not evince a mere “buy-sell” arrangement between two parties.

We find ample evidence to support the conviction, and accordingly need not consider the additional contention that the trial court erred in refusing to grant the defendant’s motions to strike the Commonwealth’s evidence.

V.

Finally, Brown asserts that Hanover County was improper venue for his trial. Under Code § 18.2-22, venue is proper in any city or county where an act in furtherance of the conspiracy took place, as well as the place where the conspiracy was entered into. Henry v. Commonwealth, 2 Va. App. 194, 199, 342 S.E.2d 655, 657-58 (1986); accord Hyde v. United States, 225 U.S. 347 (1912); United States v. Anderson, 611 F.2d 504, 509 n.5 (4th Cir. 1979). Because conspiracy is a continuing offense, venue may be proper in more than one place. Short v. United States, 91 F.2d 614, 621 (4th Cir. 1937). “Each member of a conspiracy is responsible for the acts of others in furtherance of the conspiracy, and all conspirators, even those without knowledge of the particular act, may be tried where any of those acts are performed.” Henry, 2 Va. App. at 198, 342 S.E.2d at 657.

Because Brown and Gray were engaged in a conspiracy to distribute drugs, and that conspiracy was ongoing at the time of Gray’s arrest in Hanover County, venue was properly laid in that jurisdiction.

For the reasons stated herein, the defendant’s conviction is

Affirmed.

Cole, J., concurred.

1 Early in the investigation it was discovered that Brown and Smith were coordinating their activities through the use of digital pagers. Investigators obtained two “clone” digital pagers set to the same frequency as those used by the defendant and Smith, allowing the investigators to monitor their activities.