Everette Lee Beverly v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Charlottesville, Virginia
EVERETTE LEE BEVERLY
MEMORANDUM OPINION * BY
v. Record No. 2639-94-3 JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA
Thomas H. Wood, Judge
Humes J. Franklin, Jr. (C. Lynn Lawson;
Franklin, Franklin, Denney & Ward, P.L.C., on
briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Everette Lee Beverly (appellant) was convicted by a jury of
conspiracy to distribute cocaine in violation of Code § 18.2-256.
On appeal, appellant argues: (1) his motion for a mistrial
based on juror misconduct and preconceived bias should have been
granted; (2) Instruction "A" should have been given; and (3)
testimony regarding appellant's financial ability and community
involvement should have been admitted in the sentencing phase.
For the reasons that follow, we affirm the trial court.
BACKGROUND
On February 12, 1993, Ronald Lee Byers (Byers), a friend of
appellant, arranged to sell cocaine to undercover State Police
Special Agent Diane A. Mandeville (Mandeville) at a party held at
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant's home. At the party, Byers asked appellant if he
could get Mandeville some cocaine. After appellant called Tommy
Davis (Davis), he and Byers left the party and went to Owens
Hamilton's house, where appellant purchased four "eight-balls"
(four packages each weighing one-eighth ounce) of cocaine from
Davis on credit. Appellant gave Byers two of the "eight-balls."
Upon returning to the party, Byers sold the cocaine to
Mandeville for $600. The exchange occurred in appellant's
bathroom while he was in another room. Byers gave appellant a
portion of the proceeds of this sale. Appellant later paid Davis
for the cocaine.
At trial on July 6, 1994, Davis testified that appellant
purchased cocaine from him sometime in February. Byers
identified appellant as the person he "made the deal with to get
the cocaine from Tommy Davis," and testified that appellant
purchased the cocaine from Davis, because "Tommy never dealt with
me." The jury found appellant guilty.
In the bifurcated sentencing phase, testimony by appellant's
daughter established that he paid the household bills, and his
girlfriend testified that he was the major contributor to
household expenses. Appellant then testified regarding his
occupation, income, residence, church attendance, lack of prior
criminal record, hobbies, and family. Over appellant's
objection, the trial court ruled that he could not testify
regarding when he bought his home or where he attended church.
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The jury sentenced appellant to thirty years in prison and a fine
of $250,000. The jury was polled after the verdict and after
sentencing, and on both occasions indicated a unanimous verdict.
At a September 9, 1994 post-verdict hearing, appellant
presented testimony from Carolyn and Warren Cash, about juror
Leslie Clements. 1 Their testimony was contradictory and
inconsistent. 2
On September 22, 1994, the court conducted a hearing to
investigate the allegations of juror misconduct, and recalled
1
Carolyn Cash alleged that Clements came to her house on
July 4, 1994 (two days before the trial) and stated to her, "I
think [Everette Beverly] should get forty years or a five hundred
thousand dollar fine. I think he should get the maximum." Mrs.
Cash alleged that Clements expressed the opinion that appellant
was, without doubt, guilty. She further alleged that after the
trial, Clements told her he had "pushed the jury for--for a
guilty verdict . . . he pushed it all the way."
Warren Cash alleged that he had a conversation with Clements
prior to trial at Dana Corporation, and Clements indicated he
knew he was serving on appellant's jury, and that he was sure
appellant was guilty.
Clements admitted that he spoke with Mr. Cash about serving
on jury duty prior to the trial, because he wanted to get excused
from jury duty to start work at his new job that Mr. Cash helped
him obtain. Clements stated that he did not discuss the trial
with the Cashes until after it ended, when he told them the
result. He also stated to the court that he told the judge at
trial that he could "come up with [an unbiased] opinion."
Clements stated that, prior to trial, he did not know which trial
he would hear.
2
Mrs. Cash initially testified that she did not know
appellant personally, but on cross-examination admitted that she
had been to his home, and that her children were "pretty good
friends" of appellant's children. Mr. Cash then testified that
he, his wife, and his children had been to appellant's house on
more than one occasion to swim in appellant's pool. Mr. Cash
testified that the conversation with Clements occurred at his
place of employment on July 4; Mrs. Cash had testified that the
conversation occurred at their home.
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Clements and six other jurors. All the jurors indicated that
they did not know whose case would be tried before they arrived
at the courthouse on the day of trial, and that they did not know
whether a civil or criminal case was to be heard. Clements
acknowledged to the court that he knew several witnesses in the
trial, but recalled that he had stated to the court at trial that
he could render an unbiased opinion. Clements testified that he
did not discuss the case with the Cashes, other than mentioning
he would try to be excused from jury duty due to a work conflict,
and that he had no preconceived notion of the case or of
appellant's guilt or innocence.
JUROR BIAS
Appellant argues that the trial court erred in overruling
his motion for a mistrial based on the allegations of juror
misconduct and preconceived bias.
In overruling appellant's motion, the trial court stated as
follows:
[T]he key issue is whether [Clements] knew
what trial it was beforehand is important and
not one of these jurors knew what case they
were trying when they walked in this
Courtroom. Not one of them. . . . [I]nsofar
as just demeanor does go, Carolyn Cash had
the worst demeanor of any witness I've ever
seen. Particularly when her own husband
contradicted her on the stand and these are
serious charges that these people brought.
. . . [I]f I thought for one minute this had
happened, I'd set this verdict aside but
gentlemen I don't believe it ever happened.
I don't believe there ever was any
conversation between Mr. Clements and Carolyn
Cash before this trial. I don't believe it
ever happened and I don't believe he ever
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expressed any, made any such expressions
about it. I don't think he even knew the
trial was coming up so I'm going to overrule
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the motion to set aside this jury verdict Mr.
Franklin.
(Emphasis added).
Where a trial court hears witnesses testify, observes their
demeanor on the stand, and has the right to believe or disbelieve
their statements, the "finding of the judge, upon the credibility
of the witnesses and the weight to be given their evidence . . .
unless that finding is plainly wrong, or without evidence to
support it, it cannot be disturbed." Lane v. Commonwealth, 184
Va. 603, 611, 35 S.E.2d 749, 752 (1945).
A trial court's determination that a particular juror is
able to render a fair and impartial verdict is "entitled to great
weight and will not be disturbed on appeal unless manifest error
exists." Calhoun v. Commonwealth, 226 Va. 256, 258-59, 307
S.E.2d 896, 898 (1983). See also Williams v. Commonwealth, 19
Va. App. 600, 602, 453 S.E.2d 575, 576 (1995), rev'd on other
grounds, 21 Va. App. 616, 466 S.E.2d 754 (1996) (en banc).
Whether the trial court should grant a mistrial is a matter
within the sound discretion of that court and, absent an abuse of
discretion, the court's ruling on that issue will not be
disturbed on appeal. Cheng v. Commonwealth, 240 Va. 26, 40, 393
S.E.2d 599, 607 (1990).
The trial court conducted an extensive investigatory hearing
on September 22, 1994. It heard the testimony of Mr. and Mrs.
Cash, Mr. Clements, and six other jurors. The court found no
evidence of misconduct or bias, and determined that the testimony
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proffered by the Cashes was inconsistent, contradictory,
incredible, and not worthy of belief. The record fails to show
error or an abuse of discretion, and amply supports the findings
of the trial court.
JURY INSTRUCTIONS
Appellant next argues that the jury was not properly
instructed on the difference between conspiracy and distribution.
Appellant was charged with conspiracy to distribute cocaine.
Instruction "C," the instruction given by the trial court,
provided as follows:
The defendant is charged with the crime of
conspiracy. The Commonwealth must prove,
beyond a reasonable doubt, each of the
following elements of that crime:
(1) That the defendant entered into an
agreement with one or more persons; and
(2) That the agreement was that they were to
commit distribution of cocaine (a Schedule II
substance); and
(3) That both the defendant and at least one
other party to the agreement intended to
commit distribution of cocaine (a Schedule II
substance);
If you find from the evidence that the
Commonwealth has proved, beyond a reasonable
doubt, each of the above elements of the
offense as charged, then you shall find the
defendant guilty.
The refused Instruction "A" provided:
Evidence of a distribution offense absent an
agreement will not suffice to support a
conspiracy conviction. If the Commonwealth's
evidence only shows a distribution offense
that was not a product of an agreement
between two or more persons to act in
concert, then you shall find the defendant
not guilty of conspiracy.
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Conspiracy is an offense independent of the object crime,
and a person may be found guilty of conspiracy, in some
circumstances, even if not convicted of the underlying object
crime. Boyd v. Commonwealth, 236 Va. 346, 351, 374 S.E.2d 301,
313 (1988). "Conspiracy is defined as 'an agreement between two
or more persons by some concerted action to commit an offense.'
The offense 'is committed when the agreement is complete
regardless of whether any overt act in furtherance of the
commission of the substantive offense is initiated.'" Cirios v.
Commonwealth, 7 Va. App. 292, 300, 373 S.E.2d 164, 167 (1988)
(quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326,
327 (1937), and Ramsey v. Commonwealth, 2 Va. App. 265, 270, 343
S.E.2d 465, 469 (1989)).
Where the granted instruction "fully and fairly instruct[s]
the jury on the applicable law," there is no abuse of the trial
court's discretion in ruling appellant's proffered instruction
duplicative. See Eaton v. Commonwealth, 240 Va. 236, 255-58, 397
S.E.2d 385, 396-98 (1990), cert. denied, 502 U.S. 824 (1991).
See also Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d
371, 384 (1984), cert. denied, 469 U.S. 873 (1984).
In the instant case, Instruction "C" adequately stated the
law and described the charge of conspiracy. Instruction "A"
added nothing that was not covered in Instruction "C." Thus, we
hold that the trial court did not abuse its discretion in
instructing the jury.
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SENTENCING
Finally, appellant argues that, at the sentencing phase, the
trial court should have allowed him to present additional
testimony concerning his financial obligations and community
involvement. He argues this evidence was relevant to the degree
of punishment appellant should have received.
Code § 19.2-295.1 provides, in pertinent part, "After the
Commonwealth has introduced such evidence of prior convictions,
or if no such evidence is introduced, the defendant may introduce
relevant, admissible evidence related to punishment."
"[A]n appellate court will not consider an error assigned to
the rejection of testimony unless a proper proffer of such
testimony be made part of the record." Archie v. Commonwealth,
14 Va. App. 684, 692, 420 S.E.2d 718, 722 (1992). "[A]
unilateral avowal of counsel, if unchallenged, or a mutual
stipulation of the testimony expected constitutes a proper
proffer . . . absent such acquiescence or stipulation, this Court
will not consider an error assigned to the rejection of testimony
unless such testimony has been given in the absence of the jury
and made a part of the record in the manner prescribed by the
Rules of Court." Whitaker v. Commonwealth, 217 Va. 966, 969, 234
S.E.2d 79, 81 (1977).
In the instant case, at the sentencing phase, the court
allowed appellant to present evidence regarding his education,
work experience, income, residence, lack of prior criminal
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record, family financial obligations, hobbies, and church
attendance. The court limited appellant only when he began to
discuss when he bought his house and where he attended church,
properly finding these matters irrelevant and cumulative.
Additionally, appellant failed to adequately proffer the
requested information for consideration on appeal.
Accordingly, we affirm the decision of the trial court.
Affirmed.
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