Al Baace Abdulla Al-Ghani v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia
AL BAACE ABDULLA AL-GHANI
MEMORANDUM OPINION * BY
v. Record No. 0264-98-4 JUDGE NELSON T. OVERTON
MAY 18, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
Jeffrey T. Barbour (Office of the Public
Defender, on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
In a bench trial, appellant was convicted of attempting to
possess cocaine, and was given a two year suspended sentence.
On appeal, appellant contends that the trial court erred: (1)
in refusing to sanction the Commonwealth for failing to preserve
the imitation cocaine sold to appellant by an undercover police
officer; (2) in finding the evidence sufficient to prove beyond
a reasonable doubt that appellant committed the charged offense;
(3) in rejecting appellant's entrapment defense; and (4) in
denying appellant's motion for a new trial based upon the trial
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
judge's failure to recuse himself. Finding no error, we affirm
appellant's conviction.
The parties are fully conversant with the record in this
case. Because this memorandum opinion carries no precedental
value, no recitation of the facts is necessary.
I.
In Galbraith v. Commonwealth, 18 Va. App. 734, 739, 446
S.E.2d 633, 636-37 (1994), this Court stated that
[u]nless appellant can show bad faith on
the part of the prosecution, or that the
missing evidence would be exculpatory,
failure to preserve potentially relevant
evidence does not constitute a denial of due
process. Arizona v. Youngblood, 488 U.S.
51, 58 (1988). . . . "Determining the
intentions of the police in failing to
preserve evidence requires consideration of
the nature of the evidence. If it is clear
that, had the evidence been properly
preserved, it would have formed a basis for
exonerating the defendant, then absent a
showing to the contrary we must assume that
the police were not acting in good faith.
However, in Youngblood, the Supreme Court
held that the 'Due Process Clause requires a
different result when we deal with the
failure of the State to preserve evidentiary
material of which no more can be said than
that it could have been subjected to tests,
the results of which might have exonerated
the defendant.'"
(quoting Tickel v. Commonwealth, 11 Va. App. 558, 562-63, 400
S.E.2d 534, 537 (1991)).
In the present case, appellant has demonstrated no evidence
of bad faith on the part of the police. Posing as a street
level drug dealer, Officer Tony Sidnor sold appellant a piece of
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white chocolate which was similar in texture, color, and size to
crack cocaine sold on the streets. The record shows that the
police may or may not have recovered the white chocolate after
appellant's arrest. Sidnor, who directed the operation, did not
tell the arresting officers what to do with the white substance.
Officer Sharma, a member of the arrest team, confirmed that he
received no instructions regarding the recovery of the
substance, and he was unaware of the disposition of the
substance. The record reflects that the substance was last seen
in the possession of appellant. These circumstances do not
indicate the existence of bad faith on the part of the police.
Moreover, appellant has not shown that if the white
chocolate had been preserved, it would have formed a basis for
exonerating him. At most, appellant can assert that the
substance was potentially exculpatory in that it may have
differed in appearance or texture from Sidnor's description of
the substance he sold to appellant. As discussed below,
however, the evidence was sufficient to support a conclusion
beyond a reasonable doubt that appellant intended to purchase
actual cocaine. Therefore, appellant suffered no violation of
his due process rights.
Appellant also contends that the failure to preserve the
evidence violated his rights under the Confrontation Clause of
the Sixth Amendment. Cases invoking violations of the
confrontation clause fall into two general categories: (1)
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cases involving admissions of out-of-court statements; and (2)
cases involving restrictions on the scope of cross-examination.
See Delaware v. Fensterer, 474 U.S. 15, 18-19 (1985). This case
plainly does not fall into either category.
The Virginia Supreme Court has stated:
A defendant's rights under the confrontation
clause are trial rights which are designed
to prevent the improper restriction of
cross-examination. These rights "[do] not
include the power to require the pretrial
disclosure of any and all information that
might be useful in contradicting unfavorable
testimony." Pennsylvania v. Ritchie, 480
U.S. 39, 53 (1987). These rights are
"satisfied if defense counsel receives wide
latitude at trial to question witnesses."
Id.
Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124
(1996). Appellant was virtually unrestricted in his
cross-examination of Sidnor. We find no Sixth Amendment
violation.
Nor do we find merit in appellant's claim that Virginia's
discovery rules required the Commonwealth to preserve the
substance sold to appellant by Sidnor. Rule 3A:11(b)(1) permits
discovery by the accused of certain items "that are known by the
Commonwealth's attorney to be within the possession, custody or
control of the Commonwealth." The record does not indicate that
the imitation cocaine was actually recovered by the police from
appellant upon his arrest, or that it was in the Commonwealth's
possession, custody, or control.
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Appellant also contends that the Commonwealth violated Code
§ 18.2-253 and that the appropriate sanction for this violation
is the dismissal of the charge against him. Code § 18.2-253
provides that "[a]ll controlled substances, imitation controlled
substances, marijuana or paraphernalia the lawful possession of
which is not established or the title to which cannot be
ascertained, which have come into the custody of a peace officer
or have been seized in connection with violations of this
chapter," shall be disposed of in the manner described by the
statute. However, except in circumstances inapplicable to this
case, "[n]o such substance or paraphernalia used or to be used
in a criminal prosecution under this chapter shall be disposed
of as provided by this section until all rights of appeal have
been exhausted . . . ." Code § 18.2-253(B).
In United States v. Belcher, 762 F. Supp. 666 (W.D. Va.
1991), the Commonwealth destroyed alleged marijuana the
defendant was charged with having manufactured. The
Commonwealth had performed no testing on the substance prior to
destroying it. The Belcher court applied due process principles
and, finding a constitutional violation to exist, ruled that the
charge should be dismissed. Id. at 672-73.
As noted above, however, appellant suffered no due process
violation in the present case. "'While violations of state
procedural statutes are viewed with disfavor, . . . neither the
Virginia Supreme Court nor the legislature has adopted an
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exclusionary rule for such violations . . . where no deprivation
of the defendant's constitutional rights occurred.'" West v.
Commonwealth, 16 Va. App. 679, 692, 432 S.E.2d 730, 738 (1993)
(citation omitted). "[A]bsent an express statutory provision
for suppression," the Virginia Supreme Court has "steadfastly
refused to extend [the exclusionary] rule to encompass evidence
seized pursuant to statutory violations . . . ." Janis v.
Commonwealth, 22 Va. App. 646, 651, 472 S.E.2d 649, 652, aff'd
on reh'g en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996).
Code § 18.2-253 does not provide that the Commonwealth's
failure to dispose of imitation controlled substances in the
manner prescribed should result in the suppression of evidence
or the imposition of other sanctions against the Commonwealth.
Therefore, the trial judge did not err in refusing to dismiss
the charge due to the Commonwealth's apparent failure to abide
by Code § 18.2-253.
II.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
Where the defendant is charged with attempting to commit a
crime,
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the Commonwealth must prove the accused had
a specific intent to commit that crime.
Moreover, to convict an accused of
possession of a particular unlawful
substance, the Commonwealth must prove that
the accused was aware of the character of
the particular substance at issue. "'The
purchase of a noncontrolled substance that
the defendant subjectively believes to be a
controlled substance can constitute an
attempt to possess . . .' provided the
government 'proves the defendant's
subjective intent to purchase . . . actual
narcotics beyond a reasonable doubt.'"
Smith v. Commonwealth, 16 Va. App. 626, 627-28, 432 S.E.2d 1, 2
(1993) (citations omitted).
"Intent is a subjective state of mind, and proof of it is
ofttimes difficult. Frequently, it must be proved by
circumstantial evidence alone." Rodriguez v. Commonwealth, 18
Va. App. 277, 282, 443 S.E.2d 419, 423 (1994) (en banc), aff'd,
249 Va. 203, 454 S.E.2d 725 (1995). Circumstantial evidence may
establish the elements of a crime, provided it excludes every
reasonable hypothesis of innocence. See Tucker v. Commonwealth,
18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994). However, "the
Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring
from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Appellant's asserted hypothesis of innocence--that he
intended to purchase imitation cocaine from Sidnor--did not flow
from the evidence. Appellant agreed to purchase a two dollar
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"piece," a street jargon reference to crack cocaine. He agreed
to the purchase before Sidnor showed him the substance. While
Sidnor and appellant discussed the sale, there was no indication
that the item proposed for sale was anything other than actual
cocaine.
Moreover, the circumstances surrounding the transaction
were consistent only with a sale of actual cocaine. The
packaging and appearance of the white chocolate was consistent
with real cocaine. The transaction took place surreptitiously,
after appellant and Sidnor agreed to the terms of the
transaction. A two dollar sale of cocaine, although rare, was
not unprecedented in Sidnor's experience. Considering the facts
and circumstances, the evidence was sufficient to prove beyond a
reasonable doubt that appellant possessed the intent to purchase
cocaine and that appellant committed the charged offense.
III.
"Entrapment is the conception and planning of an offense by
a police agent, and his or her procurement of its commission by
'one who would not have perpetrated it except for the trickery,
persuasion, or fraud' of the police." Howard v. Commonwealth,
17 Va. App. 288, 293, 437 S.E.2d 420, 424 (1993) (citation
omitted). "There is nothing improper in the use, by the police,
of decoys, undercover agents, and informers to invite the
exposure of willing criminals and to present an opportunity to
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one willing to commit a crime." Stamper v. Commonwealth, 228
Va. 707, 715, 324 S.E.2d 682, 687 (1985).
While Sidnor provided the opportunity for appellant to
commit the crime, there was no evidence that appellant would not
have attempted to purchase cocaine except through the
persuasion, trickery, or fraud of the police. That Sidnor sold
the "cocaine" to appellant for only two dollars, which was all
the money appellant said he possessed, did not prove that the
crime was the result of entrapment. Indeed, appellant's "ready
commission of the criminal act amply demonstrate[d his] . . .
predisposition." Jacobson v. United States, 503 U.S. 540, 550
(1992). Therefore, the trial judge did not err in rejecting
appellant's entrapment defense.
IV.
Canon 3(C) of the Canons of Judicial Conduct provides:
C. Disqualification.
(a) A judge shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.
(1) To this end, he should abstain from
performing or taking part in any judicial
act in which his personal interests are
involved. He should not act in a
controversy where a near relative is a
party. He should not suffer his conduct to
justify the impression that any person can
improperly influence him or unduly enjoy his
favor, or that he is affected by his
kinship, rank, position or influence of any
party or other person.
(2) A judge should inform himself about his
personal and fiduciary financial interests,
and make a reasonable effort to inform
himself about the personal financial
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interests of his spouse and minor children
residing in his household.
In a similar case involving a former Commonwealth's
Attorney's refusal to recuse himself as trial judge, this Court
stated that
[t]he requirement of this Canon is clear;
a judge must diligently avoid not only
impropriety but a reasonable appearance of
impropriety as well. Exactly when a judge's
impartiality might reasonably be called into
question is a determination to be made by
that judge in the exercise of his or her
sound discretion. Judges are presumed to be
aware of the provisions of Canon 3, and
their decisions will not be disturbed absent
an abuse of that discretion.
Davis v. Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 741, 743
(1996) (citation omitted).
The record reveals that the trial judge, a former
Commonwealth's Attorney in Alexandria, gave full and fair
consideration to appellant's pretrial motion, as well as to the
objections raised by appellant during trial. The mere fact that
a trial judge makes rulings adverse to a defendant, standing
alone, is insufficient to establish bias requiring recusal. See
Stamper, 228 Va. at 714, 324 S.E.2d at 686; Stevens v.
Commonwealth, 8 Va. App. 117, 123, 379 S.E.2d 469, 473 (1989).
At the post-trial hearing, the judge indicated that he was aware
of no bias or prejudice he may have harbored against appellant,
and the record does not demonstrate otherwise. Therefore,
appellant has demonstrated no basis upon which to reverse the
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trial judge's decision, exercised in his discretion, not to
recuse himself.
For the foregoing reasons, appellant's conviction is
affirmed.
Affirmed.
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