Patrick Howard Bailey v. Commonwealth of Virginia ( 2000 )


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  •                   COURT OF APPEALS OF VIRGINIA
    Present: Judges Coleman, Annunziata and Bumgardner
    Argued at Salem, Virginia
    PATRICK HOWARD BAILEY
    MEMORANDUM OPINION * BY
    v.   Record No. 0266-99-4            JUDGE RUDOLPH BUMGARDNER, III
    APRIL 18, 2000
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
    John E. Wetsel, Jr., Judge
    Anthony G. Spencer (John W. Luxton;
    Morchower, Luxton & Whaley, on briefs), for
    appellant.
    Donald E. Jeffrey, III, Assistant Attorney
    General (Mark L. Earley, Attorney General, on
    brief), for appellee.
    A jury convicted Patrick Howard Bailey of conspiring to
    distribute cocaine and transporting more than one ounce of
    cocaine into the Commonwealth.   He contends on appeal that (1)
    the evidence was insufficient to support the conspiracy
    convictions and (2) his constitutional rights were violated
    because he was convicted with evidence that contradicted the
    Commonwealth's representations in the extradition proceedings.
    Finding no error, we affirm the defendant's convictions.
    "On appeal, 'we review the evidence in the light most
    favorable to the Commonwealth, granting to it all reasonable
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    inferences fairly deducible therefrom.'"    Archer v.
    Commonwealth, 
    26 Va. App. 1
    , 11, 
    492 S.E.2d 826
    , 831 (1997)
    (citation omitted).   In so doing, we discard the defendant's
    evidence that conflicts with that of the Commonwealth.      See
    Cirios v. Commonwealth, 
    7 Va. App. 292
    , 295, 
    373 S.E.2d 164
    , 165
    (1988).   The trial court's ruling will not be disturbed on
    appeal unless plainly wrong or unsupported by the evidence.       See
    Martin v. Commonwealth, 
    4 Va. App. 438
    , 443, 
    358 S.E.2d 415
    , 418
    (1987).
    The defendant lived in New York where he met Nicole
    Williams in 1993 or 1994.   Several months later, she agreed to
    "make a run" to Virginia for him.    Williams made five trips to
    Virginia for the defendant between Labor Day weekend 1994 and
    February 3, 1995, when she was arrested.   The defendant called
    Williams to arrange a trip shortly before he wanted her to
    leave.    He advised her to dress conservatively and, on each
    occasion, brought a suitcase already packed with drugs to her
    house.    The defendant took Williams to the bus station,
    purchased her ticket, and gave her money for expenses.      One
    time, he gave her money for a cab to the station and for the
    ticket.   Williams usually took the 2:00 a.m. bus to Winchester,
    but she always traveled alone.
    When Williams arrived in Winchester, either the defendant,
    George Curry, or Breton "Woody" Alexander met her and took her
    to Alexander's house.   Each time, Alexander took the suitcase
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    into another room, and sometimes the defendant or Curry
    accompanied him.   When Alexander came out, he carried wrappings
    of aluminum foil, duct tape, and plastic wrap.    Once Williams
    saw Alexander holding a sandwich bag of marijuana.    Williams
    always left the suitcase and returned to New York the same day
    she had arrived.   When she got back, she paged the defendant and
    he paid her from $300 to $1,000 per trip.
    On her fifth trip, February 3, 1995, drug task force
    officers approached Williams when she arrived at the Winchester
    bus station.   She consented to a search of the suitcase, and the
    officers found five packages wrapped in duct tape with dryer
    sheets exposed to conceal the odor.    The wrapping was consistent
    with transportation of illegal drugs.    The two brick-shaped
    packages contained approximately two pounds of marijuana, and
    the three egg-shaped packages contained eleven ounces of
    cocaine.   The approximate street value of the marijuana was
    $6,000 and of the cocaine was $30,800.
    Williams denied owning the bag.     She said a black Jamaican
    man in New York City named Patrick had given it to her to bring
    to Winchester.   She had his pager number and expected to meet a
    man named George in Winchester.   At the officers' request,
    Williams paged Patrick.   Ten minutes later, George Curry
    telephoned Williams and agreed to meet her at a Food Lion store.
    When Curry arrived, the police arrested Williams and him.
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    Nicole Williams pled guilty to possession with intent to
    distribute cocaine and marijuana.
    Curry testified that the defendant asked him to pick up
    Williams on several occasions, but he denied knowing Williams
    was transporting drugs.   He said that if he had known she was
    involved with drugs, he would not have picked her up.   He told
    the defendant that he wanted nothing to do with cocaine when the
    defendant had asked him if he knew anyone who could "get rid of
    some coke."   He did admit to being present once when Alexander
    opened the suitcase Williams had delivered and removed marijuana
    from the bag.   Another time, after Williams arrived, he saw
    Alexander with cocaine.   He also saw the defendant with cocaine.
    Curry admitted that the defendant paid him $100 to hold a
    package of what Curry believed to be marijuana.   Curry was aware
    that the defendant had other women "bringing stuff down" to
    Virginia, and admitted he had picked up at least one other woman
    from the bus station for the defendant.   Curry pled guilty to
    conspiracy to distribute cocaine and marijuana.
    During a search of Curry's residence, the police recovered
    telephone bills with calls to the defendant's telephone number
    in Brooklyn and a photograph of the defendant and Alexander in
    front of a Christmas tree.   During a search of Alexander's
    trailer, the police recovered a marijuana cigarette.    At
    Alexander's trailer, the police also found the defendant's
    automobile insurance receipt dated July 25, 1994.   A page of a
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    telephone bill dated February 16, 1994 showed calls placed to
    two New York telephone numbers registered to the defendant.    A
    sheet of paper attached to the phone bill listed Karen Bailey,
    the defendant's wife, with a Brooklyn address, telephone number
    718-284-1076, and the name "Patrick" crossed out and "Karen"
    written over it.   The police followed footprints from
    Alexander's trailer and found a jar containing approximately
    four ounces of marijuana under a mattress in the nearby woods.
    Under the trailer, they found wrappings similar to those found
    on February 3, 1995.
    The defendant testified and denied ever asking Williams to
    make a trip to Virginia for him, ever giving her a suitcase to
    deliver to Winchester, ever giving her his pager number, or ever
    paying her for making a trip.   He denied asking Curry or
    Alexander to pick Williams up, being in Winchester on Labor Day
    weekend in 1994, or being involved with drugs.   While he
    conceded that the evidence would establish his intent to
    transport and distribute cocaine, he argues the evidence is
    insufficient to support a conviction of conspiracy.
    Conspiracy is "'an agreement between two or more persons by
    some concerted action to commit an offense.'"    Wright v.
    Commonwealth, 
    224 Va. 502
    , 505, 
    297 S.E.2d 711
    , 713 (1982)
    (citation omitted).    Proof of the existence of an agreement is
    an essential element to establish the crime of conspiracy.     See
    Fortune v. Commonwealth, 
    12 Va. App. 643
    , 647, 
    406 S.E.2d 47
    , 48
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    (1991).   However, proof of an explicit, formal agreement is not
    required.    The elements of conspiracy may, and frequently must,
    be proved by circumstantial evidence.     See Wright, 224 Va. at
    505, 
    297 S.E.2d at 713
     (can infer that the defendants intended
    to commit robbery rather than another crime); Stevens v.
    Commonwealth, 
    14 Va. App. 238
    , 241, 
    415 S.E.2d 881
    , 883 (1992)
    (evidence sufficient to prove conspiracy to commit murder);
    Zuniga v. Commonwealth, 
    7 Va. App. 523
    , 531, 
    375 S.E.2d 381
    , 386
    (1988) (defendant only required to know "the essential nature of
    the scheme"); Stultz v. Commonwealth, 
    6 Va. App. 439
    , 443, 
    369 S.E.2d 215
    , 217 (1988) (evidence permits reasonable inference
    that parties agreed to further prostitution).
    "'The existence of an unlawful and inherently covert
    agreement can be inferred from the overt conduct of the
    parties.'"    Floyd v. Commonwealth, 
    219 Va. 575
    , 581, 
    249 S.E.2d 171
    , 174 (1978) (citation omitted).     See Barber v. Commonwealth,
    
    5 Va. App. 172
    , 177, 
    360 S.E.2d 888
    , 890 (1987) (sequence of
    events supports inference that defendant and others acted in
    concert and planned to transport marijuana).    "'"A common
    purpose and plan may be inferred from a development and
    collocation of circumstances."'"    Amato v. Commonwealth, 
    3 Va. App. 544
    , 552, 
    352 S.E.2d 4
    , 9 (1987) (plan need not be
    completed to support conspiracy conviction) (citations omitted).
    Whether the defendant's "'conduct constituted knowing
    participation in the scheme or merely inadvertence . . . was for
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    the jury to decide.'"   Floyd, 
    219 Va. at 581
    , 275 S.E.2d at 174
    (quoting United States v. Harris, 
    433 F.2d 333
    , 335 (4th Cir.
    1970)).   Where, as here, it has been shown that the conspirators
    "'by their acts pursued the same object, one performing one part
    and the other performing another part so as to complete it
    . . ., the jury will be justified in concluding that they were
    engaged in a conspiracy to effect that object.'"    Amato, 3 Va.
    App. at 552, 
    352 S.E.2d at 9
     (quoting 16 Am. Jur. 2d Conspiracy
    § 42 (1979)).
    The fact that there was no evidence of an explicit
    agreement to transport and distribute cocaine between the
    defendant and Williams does not preclude his conviction.    The
    evidence permitted the jury to infer that an agreement existed.
    It revealed a planned and organized effort to transport drugs
    into Virginia over the course of several months.   The defendant
    was intimately involved in the conspiracy.   He knew Alexander
    and Curry and introduced them to Williams.   All three had the
    defendant's telephone or pager number.   The defendant arranged
    and paid for Williams's trips.    He packaged the drugs, delivered
    them to his runner, and arranged for someone to meet her when
    she arrived in Winchester.   See United States v. Burgos, 
    94 F.3d 849
    , 868-70 (4th Cir. 1996), cert. denied, 
    519 U.S. 1151
     (1997)
    (factors which further circumstantial evidence that defendant
    involved in conspiracy include being acquainted with other
    conspirators, exchanging telephone numbers, and purchasing their
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    train tickets).    The record, considered in the light most
    favorable to the Commonwealth, clearly supports the inference
    that the defendant had guilty knowledge.     See Amato, 3 Va. App.
    at 552, 
    352 S.E.2d at 9
    .
    Williams knew she was transporting drugs of the defendant,
    and when the police arrested her, they found cocaine wrapped in
    foil and saran wrap.    The wrappings were similar to those
    Williams saw when Alexander unpacked previous deliveries.       She
    pled guilty to distribution of both marijuana and cocaine.       The
    evidence also permits the inference that Curry knew both cocaine
    and marijuana were involved.    Curry saw Alexander with cocaine
    after a delivery by Williams, and the defendant once asked him
    who could get rid of some coke for him.    Curry pled guilty to
    both cocaine and marijuana offenses.     The evidence shows a
    relationship between the group's connection to marijuana and
    cocaine so close that proof of conspiracy to distribute one
    tends to establish a conspiracy to distribute the other.        See
    Morton v. Commonwealth, 
    227 Va. 216
    , 223, 
    315 S.E.2d 224
    , 228,
    cert. denied, 
    469 U.S. 862
     (1984).
    The fact finder was entitled to disbelieve Williams and
    Curry's testimony that that they were unaware cocaine was
    involved.    The fact finder, who determines the credibility of
    the witnesses and the weight accorded their testimony, has wide
    discretion to accept or reject the testimony in whole or in
    part.     See Bradley v. Commonwealth, 
    196 Va. 1126
    , 1136, 86
    - 8 -
    S.E.2d 828, 834 (1955); Bridgeman v. Commonwealth, 
    3 Va. App. 523
    , 528, 
    351 S.E.2d 598
    , 601 (1986).    The fact finder is also
    entitled to disbelieve the self-serving testimony of the accused
    and to conclude that he is lying to conceal his guilt.      See
    Speight v. Commonwealth, 
    4 Va. App. 83
    , 88, 
    354 S.E.2d 95
    , 98
    (1987) (en banc).
    The repeated transportation arrangement is "consistent with
    '[t]he step from knowledge to intent and agreement.'"      Zuniga, 7
    Va. App. at 523, 
    375 S.E.2d at 386
     (citation omitted).     The
    actions of those involved "were consistent with illegality and
    inconsistent with legality."     Wright, 224 Va. at 505, 
    297 S.E.2d at 713
    .   The law is clear; circumstantial evidence is sufficient
    to establish a conspiracy.    Considering the entire record, the
    evidence supports a reasonable inference that there was a
    conspiracy to transport and distribute cocaine into Virginia.
    Finally, the defendant asserts "[t]he trial court erred in
    convicting Mr. Bailey based on alleged conduct in contradiction
    of the Commonwealth's representations in the extradition
    proceedings."   The nature of this contention is not clear, but
    to the extent it is an assertion that his rights to due process
    were violated, such a claim is barred.    The defendant did not
    present that argument to the trial court.     See Rule 5A:18.     To
    the extent it constitutes a collateral attack on the extradition
    proceeding, this appeal is not the proper means of challenging
    extradition proceedings.     See Code § 19.2-95.   To the extent it
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    is a challenge that the evidence presented at trial conflicted
    with that presented at the extradition proceedings, we find no
    error.
    For the foregoing reasons, we affirm the defendant's
    convictions.
    Affirmed.
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