Atif Beyah Saleem v. Commonwealth , 23 Va. App. 726 ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
ATIF BEYAH SALEEM
OPINION BY
v. Record No. 1823-95-4 JUDGE CHARLES H. DUFF
JANUARY 14, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
Robert W. King, Jr., for appellant.
John H. McLees, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In a bench trial, Atif Beyah Saleem (appellant) was found
guilty of robbery and the use of a firearm in the commission of
robbery. Appellant contends on appeal that the trial court
should have suppressed the statements he made to inmate Darryl
Watkins because the statements were obtained in violation of his
Sixth Amendment right to counsel. Appellant further argues that
the evidence was insufficient to support his convictions.
Finding no error, we affirm the convictions.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On September 5, 1994, Lisa Mays was working as a cashier at
Market Street restaurant in Woodbridge. At closing time, she
took the cash register drawer to the office to total the proceeds
from the day and to perform paperwork. When she reached the
office door, she was confronted by a man wearing a ski mask and
pointing a gun at her. The man was short and stocky and wore
black pants with a "bluish green" shirt. While Mays stood still,
another man approached her from behind, pushed her into the
office, and shut the door. The second man was taller and thinner
than the first, was dressed all in black, wore a ski mask, and
carried a handgun. Both men wore rubber gloves.
After the office door was shut, the men pointed with their
guns to the cash register drawer and then down at a bag. The
shorter of the two men took the money from the drawer, which
totalled $2,300, and put it in the bag. The shorter man then
pointed to the floor with his gun. Mays responded by lying face
down on the floor. One of the men pressed a gun against Mays'
back "real hard." Before the two men left, Mays saw the shorter
man place his finger to his lips, which Mays interpreted as a
command for her to remain quiet. As soon as she was certain the
men were gone, Mays fled the office and contacted the police.
The back door of the restaurant was later discovered unlocked.
No words were spoken during the robbery. Mays testified
that she knew appellant and could recognize his voice because he
had worked as a cook at Market Street. Appellant was no longer
employed at the restaurant on the day of the robbery. The
procedure conducted at the close of business at Market Street was
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common knowledge among the restaurant employees.
At trial, the Commonwealth introduced the testimony of
Watkins, who had been incarcerated with appellant prior to trial.
Watkins testified that appellant told him the charge against him
was the product of "entrapment" because during the robbery he was
behind "this woman" with a gun, and that now she was saying she
could identify him by his voice. Appellant told Watkins he had
been wearing a mask, and he wondered how the woman could identify
him because he had not spoken much during the robbery. Appellant
also said he used to work at "The Market" restaurant, that he
knew what time the money would be brought to the office, that he
and a "young guy" waited in the office for a woman to bring in
the cash register drawer, and that they had left the restaurant
by the back door. Appellant said about $2,000 was taken in the
robbery.
Appellant presented the testimony of two other inmates, who
maintained that the conversation between appellant and Watkins
had not occurred.
I.
At a hearing on appellant's motion to suppress, the
Commonwealth presented evidence of the circumstances surrounding
appellant's statement to Watkins. Watkins testified that he was
sentenced on several felony convictions in September 1994, and
had been serving his nine year sentence in the jail since that
time. In January 1995, Detective Anthony Spencer visited
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Watkins, who previously had asked to be moved to a different
building. Spencer told Watkins that, while Watkins was in the
other building, if "[he] hear[d] someone speaking about a
case[,]" to "keep [his] ears open" and "get back with" Spencer.
Spencer mentioned several specific cases, including a robbery
case involving "Atif." However, Spencer did not tell Watkins any
details about the robbery at the restaurant.
Watkins agreed to do as Spencer requested. Watkins was
promised nothing in return for supplying information to the
police, and had received no consideration at the time of the
suppression hearing or the trial. Although he had been promised
nothing, Watkins said he "hoped" some of his court costs would be
"paid out of this."
A few days after his conversation with Spencer, Watkins was
transferred to the building he had requested and was assigned to
appellant's cellblock. Watkins had little conversation with
appellant until late the following evening when Watkins,
appellant, and other inmates were watching television together.
Appellant stated spontaneously that his own case was similar to
the television program they were watching, which involved what
the inmates perceived as entrapment techniques used by the
police. Appellant said although he had worn a mask, a woman
supposedly could identify him by his voice. Appellant said he
could not understand how he could have been identified because he
had not spoken much during the robbery. During an ensuing
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conversation involving Watkins, appellant revealed further
details of the offense.
When Watkins subsequently reported this information to
Spencer, Spencer did not promise Watkins any consideration in
exchange. Watkins later was transferred out of the building
where appellant was housed.
Appellant contends that his Sixth Amendment right to counsel
was violated because Watkins, while acting as a government agent,
deliberately elicited statements from him after indictment and in
the absence of his attorney. The United States Supreme Court has
"recognized a suspect's need to have counsel present during
in-custody conversations with government informants." Lafon v.
Commonwealth, 17 Va. App. 411, 422, 438 S.E.2d 279, 286 (1993)
(citing United States v. Henry, 447 U.S. 264 (1980)).
The Sixth Amendment guarantees the accused,
at least after the initiation of formal
charges, the right to rely on counsel as a
"medium" between him and the State. . . .
[T]his guarantee includes the State's
affirmative obligation not to act in a manner
that circumvents the protections accorded the
accused by invoking this right.
Maine v. Moulton, 474 U.S. 159, 176 (1985). To constitute a
violation of the suspect's Sixth Amendment right to counsel, "the
statements in question must have been (1) deliberately elicited
(2) by a government agent." United States v. Li, 55 F.3d 325,
328 (7th Cir. 1995). Both of these prongs must be satisfied in
order for a Sixth Amendment violation to result. See United
States v. Taylor, 800 F.2d 1012, 1015 (10th Cir. 1986), cert.
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denied, 484 U.S. 838 (1987).
The determination of whether an informant was acting as a
government agent turns upon "the facts and circumstances of each
case." Id. "[T]he protections of the Sixth Amendment right to
counsel . . . are inapplicable when, after the right to counsel
has attached, statements by a defendant are made to an individual
who is not an agent for the Government, although he may be a
Government informant." Id. An important component in
determining whether an informant was also a government agent is
the benefit the informant was promised as part of his agreement
to provide information to the police. See Moulton, 474 U.S. at
163 (informant received sentencing consideration upon pending
charges); Henry, 447 U.S. at 266 (informant paid for useful
information given to police). See also Thomas v. Cox, 708 F.2d
132, 134-35 (4th Cir.), cert. denied, 464 U.S. 918 (1983).
In a factual situation similar to the present case, the
Tenth Circuit of the United States Court of Appeals observed:
No agreement was made between [the informant]
and the Government and no benefits accrued to
[the informant] for his cooperation. Any
benefits which [the informant] hoped to
obtain were mere expectancies. We decline to
infer an agreement between the Government and
[the informant] merely from the placement of
[the defendant] in [the informant's] cell.
In the absence of any express or implied quid
pro quo underlying the relationship between
[the informant] and the Government, and in
the absence of any instructions or directions
by the Government, . . . [the informant] was
not a government agent.
Taylor, 800 F.2d at 1016 (citation omitted). In fact, the
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motives of an informant "cannot make him an agent of the police
even if the police knew and understood that his motives probably
were self-serving and related to getting police cooperation in
his own case." Lightbourne v. Dugger, 829 F.2d 1012, 1021 (11th
Cir. 1987), cert. denied, 488 U.S. 934 (1988).
In the present case, the evidence was uncontroverted that
Watkins was promised, and he received, nothing in exchange for
gathering information for the police. The only suggestion of a
benefit to Watkins was his own statement that he "hoped" some of
his court costs would be paid. Watkins' wishful thinking,
however, did not create an agreement with Spencer that otherwise
did not exist. Furthermore, although Spencer asked Watkins to
keep his "ears open" about the robbery, Spencer did not instruct
Watkins how to gain information about the offense, nor did he
tell Watkins to question appellant.
Under these circumstances, we find that Watkins was not a
government agent when appellant made the statements to him.
Because one of the necessary prongs did not exist, appellant's
Sixth Amendment right to counsel was not violated and the
statements were admissible. For this reason, we need not decide
whether Watkins deliberately elicited the statements from
appellant.
II.
Appellant argues that the trial court should have rejected
Watkins' testimony because Watkins' description of his
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conversation with appellant was not credible. However, "[t]he
weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact
finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523,
528, 351 S.E.2d 598, 601 (1986).
Appellant's description of the robbery to Watkins was
consistent, in all significant respects, with Mays' testimony
about the incident. According to appellant's statement, he and
another man, while both were masked and armed, robbed a woman at
"The Market" restaurant, where appellant previously had been
employed. Mays corroborated all of these details. Appellant
told Watkins he had not spoken "much" during the robbery so the
woman could not identify his voice. Indeed, by maintaining
silence appellant prevented Mays, who was familiar with his
voice, from later identifying him. Appellant told Watkins he had
left the restaurant by the back door, which was discovered
unlocked after the robbery. The amount of money appellant told
Watkins he obtained in the crime was nearly the same as that
actually taken during the robbery. Furthermore, the
circumstances strongly suggested that the robbery was committed
by someone with knowledge of the restaurant's procedures, such as
a former employee.
Considering these facts, the evidence was sufficient to
prove beyond a reasonable doubt that appellant committed the
robbery and the associated firearm offense. Thus, the trial
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judge did not err in refusing to strike the evidence.
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
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