Roderick Kim Ricks v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia
RODERICK KIM RICKS
MEMORANDUM OPINION * BY
v. Record No. 0432-98-1 JUDGE RICHARD S. BRAY
APRIL 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
E. Everett Bagnell, Judge
Damian P. Dwyer (Carter & Dwyer, P.C., on
brief), for appellant.
Richard B. Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Roderick Kim Ricks (defendant) was convicted in a bench
trial on four counts of distributing cocaine, violations of Code
§ 18.2-248(A). On appeal, defendant complains that the trial
court erroneously admitted into evidence expert opinion on a
matter of common knowledge and incorrectly ruled that the
offenses were not accommodation distributions. Finding no
error, we affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). “An appellate court must discard all
evidence of the accused which conflicts with that of the
Commonwealth . . . .” Lea v. Commonwealth, 16 Va. App. 300,
303, 429 S.E.2d 477, 479 (1993). The credibility of a witness,
the weight accorded the testimony, and the inferences to be
drawn from proven facts are matters solely for the fact finder’s
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989). The judgment of a trial court,
sitting without a jury, will be disturbed only if plainly wrong
or without evidence to support it. See Code § 8.01-680.
I.
Assigned to make undercover drug “buys” for the Franklin
Police Department, Linda Powell positioned herself outside the
“C section” of the Dorchester Square Apartments (Dorchester) in
the City of Franklin. Defendant soon “pulled up,” and Powell
approached his vehicle, inquiring if “he [knew] where any dope
was.” 1 When defendant responded that he would “take her” to
1
Powell testified that she “[had] met [defendant] . . .
years ago,” but “didn’t know him personally.” Defendant was
acquainted with Powell’s brother, then married to defendant’s
cousin, Daphine Holland, also a police informer.
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“Calvin [Reid],” 2 Powell entered the car, and defendant drove
several blocks, locating Reid at a “parking lot.” Defendant
spoke with Reid, purchased two “twenty-cent rocks” of cocaine
from him, using funds provided by Powell, and “handed [her] the
dope.”
Later that evening, Powell returned to Dorchester, simply
“stood outside,” and defendant “came by, . . . stopped,” and
asked, “did [she] need some.” Powell answered, “damn right,”
again entered defendant’s car and was driven to Reid, then at a
nearby “phone booth.” Upon seeing Reid, defendant stopped the
car, approached him, and purchased “a block, fifty” of cocaine
with $50 supplied by Powell. Defendant passed the drugs to
Powell on his return to the car.
The following night, Powell was once again at Dorchester to
complete a “deal” she “had set up” with defendant the preceding
day. When she saw defendant “standing outside,” she approached
and “told him [she] want[ed] some weight.” Defendant joined
Powell in a vehicle driven by Daphine Holland, and he directed
her to an address on Bank Street. Powell gave defendant $50
which he exchanged with Reid for three “twenties[,] three rocks”
of cocaine. Upon receipt of the drugs from defendant, Powell
protested, “He’s going to have to look out for me next time.
2
Reid, a reputed drug dealer, was the focus of a police
investigation.
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This s___ is light. Did he look out for you?,” and defendant
responded, “I’ll get mine.”
Several hours later, Powell returned to the usual location
at Dorchester, and defendant “pulled up,” declaring that he
“just saw Reid.” Powell asked defendant if Reid had “an eight
ball,” and he replied, “naw, he got some fifties.” Powell again
traveled in defendant’s car to locate Reid, paid defendant $50,
and he returned with cocaine for her.
At trial, Franklin Detective David Welch, “based on [his]
experience working narcotics,” interpreted defendant’s
statement, “I’ll get mine,” to mean that Reid would “take care
of” defendant in return for his assistance in the cocaine sales
to Powell. Defendant’s counsel objected, arguing, “That’s plain
English. I mean, ‘I’ll get mine’ is just a simple . . . .” The
court overruled the objection, reasoning that the statement
“doesn’t mean a thing to certain people who are not familiar
with the drug trade.”
Defendant also testified, acknowledging that he was a
cocaine “user” at the time of the offenses and sometimes
purchased drugs from Reid, “one of the biggest drug dealers in
Franklin.” Defendant did not deny his role in the subject
offenses, which he characterized as “buys.” However, he
insisted that he acted “as a favor” to his cousin, Daphine
Holland, after she “came by and said [Powell] was in town, . . .
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want [sic] to get high.” He denied any expectation of gain or
favor from the transactions. Defendant explained that his
comment, “I’ll get mine,” referenced his plan to later purchase
a greater quantity of drugs for himself at a better bargain,
“spend . . . $50.00 and get $50.00 worth.”
II.
Defendant first complains on appeal that the court
erroneously countenanced the detective as an “expert witness” 3
and permitted him to construe the phrase “I’ll get mine,” words
of “standard English usage.” However, our review of the record
discloses that it was defendant’s questioning of Welch that
first placed this evidence in issue. During his examination of
Welch, the following exchange occurred:
Q: Are you aware of any consideration that
[defendant] got for taking these folks to
Mr. Reid?
* * * * * * *
A: On these particular cases the only
evidence I would have from that has been the
statement I heard him say over the mike as
to where he would get his. . . .
Q: You don’t know what he meant by that, do
you?
A: No.
Q: You just have an interpretation.
3
Defendant concedes that he did not properly preserve an
objection to the witness’ qualification as an expert and,
therefore, Rule 5A:18 precludes our consideration of that issue.
Rule 5A:18; see Snurkowski v. Commonwealth, 2 Va. App. 532, 536,
348 S.E.2d 1, 3 (1986).
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A: But, I mean, I know the street lingo and
I know what I would interpret it to be.
Thus, defendant opened the door of inquiry into Welch’s
knowledge of “any consideration” flowing from Reid to defendant
as a result of the Powell transactions. “Subject to such
reasonable limitations as the trial court may impose, [the
Commonwealth then had] an absolute right to [examine the]
witness on a matter relevant to the case, which [defendant] put
in issue by . . . examination of the witness.” Washington v.
Commonwealth, 228 Va. 535, 549, 323 S.E.2d 577, 587 (1984)
(citing Basham v. Terry, 199 Va. 817, 824, 102 S.E.2d 285, 290
(1958)), cert. denied, 471 U.S. 1111 (1985); see also Lockhart
v. Commonwealth, 251 Va. 184, 466 S.E.2d 740 (1996).
Defendant next contends that the court erred in failing to
find the illicit transactions were merely “accommodations”
contemplated by Code § 18.2-248(D). 4 “[A] defendant who invokes
an accommodation defense has the burden of proving the elements
of that defense by a preponderance of the evidence.” Heacock v.
Commonwealth, 228 Va. 397, 406, 323 S.E.2d 90, 95 (1984); see
Hudspith v. Commonwealth, 17 Va. App. 136, 137-38, 435 S.E.2d
4“[T]he General Assembly [prescribed a] reduced penalty
. . . when the unlawful distribution was made ‘not by a dealer
in drugs, a pusher or one who was normally engaged in the drug
traffic, but by an individual citizen who was motivated by a
desire to accommodate a friend.’” Heacock v. Commonwealth, 228
Va. 397, 406, 323 S.E.2d 90, 95 (1984) (quoting Stillwell v.
Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 364 (1978)).
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588, 589 (1993). Clearly, the defense is not available if the
offender distributed drugs “with intent to profit thereby from
any consideration received or expected.” Code § 18.2-248(D);
see Heacock, 228 Va. at 407, 323 S.E.2d at 96.
Welch’s interpretation of defendant’s statement, “I’ll get
mine,” defendant’s ready availability and eagerness to procure
drugs for Powell, his ongoing familiarity with Reid’s
whereabouts and inventory, and his detached relationship with
Powell, together with other evidence, clearly negated the
accommodation defense, notwithstanding defendant’s testimony to
the contrary. See Marable v. Commonwealth, 27 Va. App. 505,
509-10, 500 S.E.2d 233, 235 (1998) (“In its role of judging
witness credibility, the fact-finder is entitled to disbelieve
the self-serving testimony of the accused and to conclude that
[he] is lying to conceal his guilt.”).
Accordingly, the convictions are sufficiently supported by
the evidence, and we affirm the trial court.
Affirmed.
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Benton, J., dissenting.
An accommodation distribution as proscribed by Code
§ 18.2-248(D) is “a sale or distribution of a drug . . . made,
not by a dealer in drugs, . . . but by an individual citizen who
was motivated by a desire to accommodate a friend, without any
intent to profit or to induce or to encourage the use of drugs.”
Stillwell v. Commonwealth, 219 Va. 214, 219, 247 S.E.2d 360, 364
(1978). “[T]he General Assembly intended [a] reduced penalty to
apply when the unlawful distribution was made [as an
accommodation].” Heacock v. Commonwealth, 228 Va. 397, 406, 323
S.E.2d 90, 95 (1984). I believe the evidence proved by a
preponderance, see id., that Roderick Kim Ricks, the defendant,
only made accommodation distributions to the police informant.
The evidence proved that the informant’s brother had been
convicted of the felony of distributing cocaine and that the
informant asked to “work for [the] Franklin Police [to obtain
favorable] . . . consideration for [the informant’s] brother’s
sentencing.” The police agreed to work with the informant and
made arrangements for the informant to purchase cocaine under
their control.
The evidence also proved the informant had substantial
connections to the defendant. The informant’s brother was
married to the defendant’s cousin. The informant testified that
she knew who the defendant was and had first met him years ago.
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The informant’s brother and the defendant were friends. The
defendant’s cousin, the sister-in-law of the informant, was
assisting the informant and the police.
The informant testified that she did not have a license to
drive. Therefore, the defendant’s cousin drove the informant in
the cousin’s truck on each occasion when the informant met the
police to be wired and to receive money to buy cocaine. The
defendant’s cousin then drove the informant to the defendant’s
cousin’s apartment.
The informant testified that when she went to make the
first purchase of cocaine for the police, the defendant arrived
outside his cousin’s apartment and the defendant “got in [his
cousin’s] truck” with the informant. The Commonwealth’s
evidence is silent concerning who arranged the meeting on that
occasion. The defendant testified, however, that his cousin
told him that the informant wanted to buy cocaine and asked his
assistance. The evidence is undisputed that the informant
initiated the cocaine buy when she “asked [the defendant] did he
know where any dope was?”
The defendant drove the informant to a parking lot to meet
Calvin Reid, the target of the investigation. The informant
gave $40 to the defendant before he exited the car to talk to
Reid. After the defendant spoke with Reid, Reid walked to the
car with the defendant and told the defendant he did not know
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the informant. The defendant introduced her as “Reggie’s
sister,” i.e., the sister of the man for whom the informant was
cooperating with the police to obtain favorable treatment. The
defendant gave the cocaine (“two twenty-cent pieces”) to the
informant and drove her to his cousin’s apartment. The
informant told the defendant she would want more cocaine later.
The defendant’s cousin then drove the informant to meet the
police.
After the informant delivered the cocaine to the police,
the defendant’s cousin drove the informant back to the cousin’s
apartment building. The informant stood outside the building
until the defendant arrived. When the defendant asked, “did
[she] need some,” she responded “you damn right.” Again she
gave the defendant $50. The defendant drove her to a car wash,
spoke to Reid, returned to the car, and gave cocaine (one rock
described “to [be] a block, fifty”) to the informant. When the
defendant returned her to his cousin’s apartment, the informant
told the defendant she wanted to buy more cocaine the next day.
The defendant’s cousin again drove the informant to deliver the
cocaine to the police.
The next day, the defendant’s cousin drove the informant to
meet with the police. The police gave the informant $210. When
the defendant’s cousin drove the informant to the defendant’s
cousin’s apartment, the informant spoke to the defendant outside
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the apartment and told the defendant she “want[ed] some weight,
not twenties.” The defendant left, returned later, and drove
her to Reid. She gave the defendant $50, and he returned to the
car with “Three twenties. Three rocks. Three twenty-cent
rocks.” After the informant delivered the cocaine to the
police, the police gave her $150 and she returned with the
defendant’s cousin to the apartment complex. The informant
again met with the defendant, who told her that Reid did not
have an “eight ball” but had “some fifties.” The informant went
with the defendant to locate Reid. The defendant spoke to Reid,
and purchased for the informant “a piece” of cocaine for $50.
I believe this evidence proves an accommodation by a
preponderance of the evidence. The detective who sent the
informant to buy cocaine targeted the investigation to arrest
Reid. Although the detective knew the defendant was a known
cocaine addict, the detective had no prior information that the
defendant sold drugs. The detective testified that he knew the
defendant was buying his cocaine from Reid. The evidence
clearly proved that the informant initiated the first
transaction by asking the defendant’s assistance in getting
cocaine for her. On each occasion when she left him after
making a purchase, she told him that she wanted more cocaine.
The defendant was not helping a stranger. He was assisting
his friend’s sister, the informant, to purchase cocaine. The
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defendant’s cousin, who was the sister-in-law of the informant,
facilitated the arrangements. Indeed, the informant testified
that during the time she was making these purchases, she spoke
with the defendant on the telephone when he was in his cousin’s
apartment. Furthermore, I disagree that the evidence proved the
defendant profited from the informant’s purchases. The
defendant assisted the informant on several occasions and never
asked the informant for payment for taking her to Reid to buy
cocaine. The informant also testified that she did not pay him
either in money or cocaine for his services. The informant
further testified that she did not know of any benefit that the
defendant received from Reid, the seller.
The evidence proved that the informant told the defendant
on several occasions that she wanted “some weight.” After the
first purchase she said to the defendant “This is all he had
. . . I’m going to need some more later.” The defendant told
the informant he would help her get what she needed. On another
occasion the informant told the defendant, “this won’t last no
time.” The defendant laughed and said he would “be around” if
she needed to purchase more.
The record clearly establishes that on the occasion when
the informant had $210 to buy cocaine, she expressed her
dissatisfaction with the quantity she received. When the
defendant said, “All [Reid] had was twenties,” the informant
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said, “He’s going to have to look out for me next time. This
. . . is light. Did he look out for you?” The defendant’s
response, “I’ll get mine,” does not prove that the defendant
profited or expected profit.
The detective’s testimony, that in “street lingo” the
response meant “that he’ll get his” or “the person . . . he got
the drugs from will take care of him,” is consistent with the
hypothesis that the defendant did not expect his own purchases
from Reid to be “light.” Indeed, the defendant’s response to
the informant was made in the context of the informant believing
that Reid did not give her the proper “weight” that she paid
for. Evidence of this is found in the detective’s testimony.
Despite his testimony as to the general meaning of the phrase
when used on the street, the detective conceded that he did not
know what the defendant meant. The detective monitored the
conversations and testified as following concerning the last
purchase the informant made:
Soon as [the defendant] got back to the car
[the informant] started yelling at him for
taking so long and accusing him of skimming
some off the top of what he brought back.
Basically the informant says, “I was getting
ready to leave your ass.”
[The defendant] says, “I won’t long.”
The informant says, “This is some light
shit, too. Can’t he do better than this?
This is my damn money.”
[The defendant] says, “That’s all he got.”
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The informant said, “Damn, this ain’t right.
He gonna have to do better than this next
time.”
This evidence proved that the informant believed Reid was not
giving her an appropriate amount of cocaine for her money. The
defendant’s response is consistent with the hypothesis that the
defendant believed Reid would not give the defendant a “light”
amount when the defendant made his purchases.
For these reasons, I would hold that the evidence proved by
a preponderance an accommodation. Thus, I would reverse the
convictions and remand for resentencing.
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