Carl Darnell Noel v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
CARL DARNELL NOEL
MEMORANDUM OPINION * BY
v. Record No. 1391-94-2 CHIEF JUDGE NORMAN K. MOON
AUGUST 29, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LANCASTER COUNTY
Joseph E. Spruill, Jr., Judge
William A. Nunn, III, for appellant.
Robert B. Beasley, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Carl Darnell Noel was convicted of two counts of
distribution of cocaine in violation of Code § 18.2-248. Noel
contends on appeal that the evidence was insufficient to prove
his guilt beyond a reasonable doubt. For the reasons stated
below, we affirm the convictions.
I.
Michael Conway, a police informant, and Larry Clarke, a
deputy United States Marshal, testified that they were working as
undercover operatives for the Northern Neck Drug Task Force on
August 5, 1993. At 9 p.m. they saw Noel in a brown Volvo driven
by Chuckie Veney and signalled him to turn into a parking lot.
Conway asked Noel if he was "doing anything," a slang phrase he
described to mean whether Noel had any drugs. Noel told him to
meet at Davis' Store. When Conway and Clarke arrived at the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
store, Conway approached the driver's side of the Volvo. Conway
testified that he handed $50 to Noel in exchange for a rock of
cocaine. Conway returned to Clarke's vehicle and gave the
cocaine to Clarke, who wrapped it in tin foil, and placed it
under the floor mat.
Clarke testified that although it was dark, he saw Conway
walk to the passenger's side of the Volvo and exchange something
on the passenger side of the vehicle. Clark testified that he
could not clearly see the face of the person involved in the
transaction with Conway. However, he knew that the driver was
the same person he had seen earlier.
On August 19, 1993, between 8:00 and 8:30 p.m. Conway and
Clarke returned to Davis' Store. Clarke gave Conway $100. When
Noel drove up alone in a brown Volvo, Conway got out of Clarke's
car and entered Noel's car. While Clarke remained in his car at
Davis' Store, Noel and Conway drove away. Conway testified that
after they drove away he gave Noel $100 in exchange for a rock of
cocaine. When Conway and Noel returned to Davis' Store, Conway
went to Clarke's car and gave cocaine to Clarke. Clarke wrapped
the cocaine in paper and put it under his floor mat.
II.
On appeal, we consider the evidence in the light most
favorable to the prevailing party, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
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credibility of witnesses and the weight assigned to their
testimony are matters left exclusively for the trier of fact, in
this case, the trial judge. Coppola v. Commonwealth, 220 Va.
243, 252, 257 S.E.2d 797, 803 (1979), cert. denied, 444 U.S. 1103(1980).
Conway testified that he purchased a rock of cocaine from
Noel in exchange for $50 on August 5. Clarke's testimony that he
saw Conway and Noel exchange something in their hands and that
Conway immediately returned with the cocaine corroborated this
account. The fact that Clarke testified that he could not
clearly see Noel's face does not render his testimony incredible
nor does it render Conway's testimony unworthy of belief. "[I]t
is for triers of the facts to judge the credibility of a
witness." Swanson v. Commonwealth, 8 Va. App. 376, 379, 382
S.E.2d 258, 259 (1989).
Conway testified that Noel sold him cocaine. This evidence
is sufficient to convict Noel, despite Conway's admitted drug use
during the time he worked for the task force. Both Clarke and
Conway testified that Conway was searched prior to each buy. It
is immaterial that there were contradictions as to where he was
searched. The fact that Conway was searched and found to be
clean prior to each buy "'exclude[s] every reasonable hypothesis
of innocence.'" Coffey v. Commonwealth, 202 Va. 185, 188, 116
S.E.2d 257, 259 (1960) (citation omitted).
Accordingly, we hold that the evidence was sufficient to
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convict Noel of these crimes and affirm the trial judge's
decision.
Affirmed.
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BENTON, J., dissenting.
The evidence in this case does not "point unerringly" to
Noel as the source of the cocaine. Poulos v. Commonwealth, 174
Va. 495, 499, 6 S.E.2d 666, 667 (1940). Thus, it fails to prove
the necessary elements of the offense beyond a reasonable doubt.
In re Winship, 397 U.S. 358, 364 (1970).
During the ten months that Conway worked as an informant for
the Northern Neck Drug Task Force, he used and distributed
cocaine; he used powder and crack cocaine and used cocaine to
"free base." Conway also testified that he had been a user of
cocaine for ten years prior to his work with the drug task force
and that his drug use increased after he began assisting the task
force. Conway could not "put a number" on the amount of his
cocaine usage or on the amount and times he personally
distributed cocaine.
The evidence proved that during the ten months Conway and
Clarke joined in their venture to buy drugs Conway was also
buying drugs for his own use and distribution. Conway testified
that he and Clarke were involved in many cases, and that it was
"hard to remember each and every detail." Clarke testified that
he was unaware that Conway was using cocaine during the period
they were buying drugs. He only learned of Conway's activities
when Noel's trial began. He also was not aware that Conway was
distributing cocaine during the ten month period that Conway was
buying drugs for the task force.
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The evidence does not prove that Conway had no drugs on his
person when he made each transaction. Although Clarke testified
that he searched Conway before each occasion they went to buy
drugs, he and Conway disagreed as to where the searches occurred.
The contradictions in their testimony do not clearly establish
when or where the searches occurred and, thus, whether the
searches had the expected result.
Clarke testified that he searched Conway in an open wooded
area on August 5. He guessed that the search occurred shortly
before they met Noel. Conway testified, however, that on August
5 Clarke searched him in Conway's home. Clarke has no
recollection of the place where he searched Conway on August 19.
Both Conway and Clarke testified that it was dark when
Conway approached the car on August 5. Clarke could not see with
whom Conway was making an exchange, and he could not see what was
exchanged. After Clarke received the item from Conway, Clarke
placed it under a floor mat in the car. Clarke made a stop to
make a telephone call before the item was delivered to a deputy
sheriff.
On August 19 when Clarke and Conway were driving around
looking for drug sellers, Clarke did not see Conway make any
exchange. Conway entered the defendant's automobile and went for
a ride. When Conway returned he gave Clarke an item that was
later identified as cocaine.
Conway did not know the number of transactions that he and
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Clarke made on August 5. Clarke did not recall the number of
transactions Conway made on August 5 or August 19. However,
Clarke testified that on most days there were several
transactions. Clarke did not search Conway after he made
purchases on August 5 or August 19. All of these transactions in
which Conway obtained drugs occurred when Conway, while acting as
an informant for the drug task force, used cocaine and
distributed cocaine for his own profit. Thus, the evidence does
not exclude the reasonable hypothesis that Conway, an admitted
user of and dealer in cocaine, did not deliver to the police
officer cocaine that he possessed and owned for his own drug use
and distribution.
Conway was also paid for each purchase of cocaine that he
made for the task force. Conway used the money he received from
the drug task force to purchase cocaine to support his cocaine
habit. Conway testified that he did not disclose to the task
force the names of the sellers who supplied cocaine to him for
his personal usage and for his personal distribution. Neither
Conway nor any person who supplied his illegal drugs has been
charged, prosecuted, or convicted for possession and distribution
of drugs.
The evidence in this case proved that Conway was using and
dealing the same illegal drugs that he was also procuring for the
police. The evidence proved that he had the motive and
opportunity for self-serving conduct and testimony. Because the
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evidence does not exclude the hypothesis that Conway gave to the
police the products of his own illegal conduct, I would hold that
the evidence failed to prove beyond a reasonable doubt that he
obtained the cocaine from Noel. Thus, I would reverse the
convictions.
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