Chris Gary Peters v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and
Bumgardner
Argued at Alexandria, Virginia
CHRIS GARY PETERS
MEMORANDUM * OPINION BY
v. Record No. 3060-96-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald H. Kent, Judge
Jeffrey T. Barbour, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Chris Gary Peters (appellant) appeals his conviction for
distribution of cocaine in violation of Code § 18.2-248. He
contends that the trial court erroneously denied his motion to
compel the disclosure of the Commonwealth's surveillance location
and that the evidence was insufficient to support his conviction.
We disagree and affirm.
On May 1, 1996, appellant was arrested for distribution of
cocaine after Officer William Bunney, concealed in an observation
post, observed appellant hand what he believed to be crack
cocaine to another man on the 3800 block of Old Dominion
Boulevard in Alexandria, Virginia. Appellant filed a Motion to
*
Pursuant to Code § 17-116 this opinion is not designated
for publication.
Compel Disclosure of Surveillance Location in an attempt to
discover Bunney's exact location.
At a hearing on appellant's motion, Bunney testified that at
9:05 p.m. on May 1, 1996, he was conducting a surveillance of the
3800 block of Old Dominion Boulevard from a concealed location
using a Sorovsky spy scope with a magnification of 20-60 times.
Streetlights and lights on the fronts of buildings lit the block,
as the sun had gone down. Bunney testified that his observation
post was within the 3800 block, elevated between twenty and
thirty feet, and that there were no obstructions between him and
the area he was viewing. There was no precipitation, and the
area Bunney was observing was directly in front of him. Bunney
stated that, within the previous year, he had told the owner of
the building in which he was concealed that the location "would
never be revealed because they were concerned about reprisals
from individuals on the street."
Bunney saw appellant walk past two individuals standing
outside an apartment building at 3816 Old Dominion Boulevard and
into the apartment building. Appellant came out of the building
with his right hand closed, and gave "at least one rock of what
appeared to be crack cocaine" to one of the individuals standing
outside of the building, later identified as William Brown.
Bunney called other members of his unit for the arrest of
appellant and Brown.
On cross-examination, Bunney acknowledged that there are at
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least four trees on the west side of the 3800 block of Old
Dominion Boulevard, the side opposite that of his observation
post. However, they are located south of the doorway where the
transaction involving appellant occurred. He testified that,
although one tree at least partially blocked his view of the
sidewalk south of 3816 Old Dominion Boulevard for twenty to
thirty feet, and that a building blocked his view of the end of
the block, his view of the location where the transaction
occurred was not blocked.
The court denied appellant's motion, ruling that the defense
had not "established that there are no alternative means of
getting at the same point," given counsel's cross-examination of
Bunney. The court also ruled that the interests of the
Commonwealth in protecting the surveillance location outweighed
appellant's interest in knowing the location.
At trial before the court sitting without a jury, Bunney
testified that he saw appellant "pour[] one rock or at least one
rock of crack cocaine from his right hand into palm up, left hand
of Mr. Brown" after leaving the building at 3816 Old Dominion
Boulevard. Brown put his left hand, containing the cocaine, into
his left pants pocket. Bunney notified other officers to arrest
Brown and appellant, and confirmed that they had arrested the
correct people. Officer Christopher Wimple testified that he
arrested Brown, and found a rock of an off-white substance in
Brown's left pants pocket; testing determined the substance to be
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crack cocaine.
Appellant testified in his own defense that he had gone with
his father-in-law to look at a car on Old Dominion Boulevard. He
testified that as he walked down Old Dominion Boulevard, he had
passed some men, the shorter one of whom asked him for a
cigarette; he gave the man his lit cigarette.
The court found appellant guilty and sentenced him to five
years imprisonment, with four years suspended.
I.
Disclosure of Surveillance Location
Appellant first contends that the court erred in denying his
motion to compel the Commonwealth to reveal the location from
which Bunney observed him. We review a court's denial of such a
motion for an abuse of discretion. Hollins v. Commonwealth, 19
Va. App. 223, 228, 450 S.E.2d 397, 400 (1994).
The Commonwealth "has a qualified privilege not to disclose
the location" of a concealed surveillance post. Hollins, 19 Va.
App. at 226, 450 S.E.2d at 399. "The Commonwealth's privilege is
limited, however, by 'the fundamental requirements of fairness,'
which require consideration of an accused's right to prepare [a]
defense." Davis v. Commonwealth, 25 Va. App. 588, 593, 491
S.E.2d 288, 290 (1997) (quoting Roviaro v. United States, 353
U.S. 53, 60, 62 (1957)). In order to overcome the Commonwealth's
privilege, a defendant
must "show that he needs the evidence to
conduct his defense and that there are no
other adequate alternative means of getting
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at the same point." Only then must the court
balance the public interest in effective law
enforcement and citizens' safety against the
defendant's constitutional right to confront
government witnesses.
Hollins, 19 Va. App. at 227, 450 S.E.2d at 399 (citation
omitted).
Appellant has not satisfied his burden to "'show that he
needs the evidence to conduct his defense.'" Hollins, 19 Va.
App. at 227, 450 S.E.2d at 399 (quoting United States v. Harley,
682 F.2d 1018, 1020 (D.C. Cir. 1982)). While appellant
established that a number of possible obstructions in the 3800
block of Old Dominion Boulevard existed, including at least four
trees, both the testimony of Bunney and the photos make clear
that Bunney's view of the transaction was unobstructed.
Furthermore, the record contains significant evidence
corroborating the evidence that Bunney's view was not obstructed
and that the transaction occurred as Bunney reported it. See
Davis, 25 Va. App. at 594, 491 S.E.2d at 291 (considering the
quality of corroborating evidence as a factor); Hollins, 19 Va.
App. at 227, 450 S.E.2d at 399 (same). Bunney testified that he
saw appellant distribute crack cocaine to Brown. While denying
that he had given crack cocaine to Brown, appellant admitted
passing a small object which he characterized as "a lit
cigarette," to a man standing with another on Old Dominion
Boulevard. The men described by appellant matched the
description of the men Bunney observed, one of whom took part in
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the illegal transaction. That appellant denied that the small
white object in question was cocaine does not materially detract
from the substance of the corroborating evidence. Appellant's
testimony further corroborates Bunney's testimony that a
transaction involving the passing of a small white object to
another took place and confirms that Bunney was not obstructed
from observing the transaction.
The other factors identified as relevant in Hollins, 19 Va.
App. at 227-28, 450 S.E.2d at 400, also support a finding that
appellant failed to show that he had a need for the information.
Bunney was elevated and used a vision-enhancing device; these
factors support the inference that Bunney could clearly see
appellant and the events in question. Although the sun had gone
down, Bunney testified that the area was well lit by streetlights
and lights on the front of the buildings themselves.
Looking at the relevant factors as a whole, we find that the
court did not err in denying appellant's motion to compel the
disclosure of the exact surveillance location. Cf. Davis, 25 Va.
App. at 594, 450 S.E.2d at 291.
Sufficiency of the Evidence
Appellant next contends that the evidence was insufficient
to support his conviction for distribution of cocaine. Where the
sufficiency of the evidence is challenged on appeal, this Court
must consider all the evidence and any reasonable inferences
fairly deducible from it in the light most favorable to the
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Commonwealth. Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975); Traverso v. Commonwealth, 6 Va. App.
172, 176, 366 S.E.2d 719, 721 (1988). A trial court's judgment
will not be disturbed on appeal unless it is plainly wrong or
without evidence to support it. Stockton v. Commonwealth, 227
Va. 124, 145-46, 314 S.E.2d 371, 385 (1984).
Viewed in the light most favorable to the Commonwealth, the
evidence establishes that appellant distributed crack cocaine to
Brown. Bunney testified that he saw appellant pour a rock of
crack cocaine into Brown's left hand, and saw Brown put the rock
into his left pocket. When Brown was arrested, the police found
a rock of crack cocaine in his left pocket. Even if, as
appellant contends, Brown threw the cocaine that he acquired from
appellant away as he saw the police approach, Bunney's testimony
that he saw appellant hand a rock of cocaine to Brown is
sufficient to support his conviction.
Affirmed.
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