Marty Jagade Jackson v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
MARTY JAGADE JACKSON
MEMORANDUM OPINION * BY
v. Record No. 0680-96-3 JUDGE LARRY G. ELDER
APRIL 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
W. Clarke Whitfield, Jr. (Turner, Haskins &
Whitfield, PLC, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Marty Jagade Jackson (appellant) appeals his conviction of
two counts of aiding and abetting the sale of cocaine. He
contends that the trial court erred when it admitted two hearsay
statements into evidence under the "co-conspirator" exception to
the hearsay rule. For the reasons that follow, we affirm.
I.
FACTS
Appellant was arrested and charged with two counts of aiding
and abetting the sale of cocaine. At trial, Ralph Anthony Moore,
an undercover drug investigator, testified for the Commonwealth
that he made two purchases of crack cocaine in March, 1995 that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
involved appellant. The first transaction was between Mr. Moore
and Timothy Griffin on March 13, and the other was between Mr.
Moore and Antonio Vantas Davis on March 24.
During his testimony, Mr. Moore testified that Mr. Griffin
told him during the transaction on March 13, "you could get these
three for a $100.00. We only have fifties, but you can get these
three for $100.00." Mr. Moore later testified that Mr. Davis
told him during the transaction on March 24 that "[appellant] was
going to look out for me [Mr. Moore] from the last time."
Appellant's counsel objected to the admission of both of these
statements on the ground that they were hearsay. The trial court
overruled both objections on the ground that each statement "was
made by a co-conspirator during the course of the enterprise."
At the conclusion of the evidence, the trial court convicted
appellant of both counts of aiding and abetting the sale of
cocaine.
II.
ADMISSIBILITY OF THE HEARSAY STATEMENTS
OF MR. GRIFFIN AND MR. DAVIS
Appellant contends that the trial court erred when it
concluded that the hearsay statements of Mr. Griffin and Mr.
Davis were admissible under the co-conspirator exception to the
hearsay rule. Appellant argues that the co-conspirator exception
does not apply to these statements because the evidence at trial
did not establish that appellant was involved in a conspiracy to
sell cocaine with Mr. Griffin on March 13 or with Mr. Davis on
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March 24. We disagree.
Hearsay evidence that is a declaration of a defendant's
co-conspirator made in furtherance of the conspiracy is
admissible under the co-conspirator exception to the hearsay
rule. See Rabeiro v. Commonwealth, 10 Va. App. 61, 63, 389
S.E.2d 731, 732 (1990). "Such declarations are admissible even
though a conspiracy is not charged where the evidence establishes
a prima facie case of conspiracy." Anderson v. Commonwealth, 215
Va. 21, 24, 205 S.E.2d 393, 395 (1974). A prima facie case
consists of "evidence which on its first appearance is sufficient
to raise a presumption of fact or establish the fact in question
unless rebutted." Babbit v. Miller, 192 Va. 372, 379, 64 S.E.2d
718, 722 (1951). The prima facie case of conspiracy must be
established by evidence independent of the hearsay declarations.
See Rabeiro, 10 Va. App. at 63, 389 S.E.2d at 732. In addition,
evidence establishing the prima facie case of conspiracy need not
be admitted prior to the admission of the hearsay statement. See
Floyd v. Commonwealth, 219 Va. 575, 582, 249 S.E.2d 171, 175
(1978) (stating that the co-conspirator's hearsay statement may
be "conditionally admitted subject to being 'connected up' by
subsequent independent proof of concert of action" (citation
omitted)).
"In reviewing whether evidence was sufficient to establish
the existence of a conspiracy, we consider the evidence in the
light most favorable to the Commonwealth, granting to it all
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reasonable inferences fairly deducible therefrom." Rabeiro, 10
Va. App. at 64, 389 S.E.2d at 732-33 (citations omitted). A
trial court's factual determination regarding the necessary
predicates to rulings on the admissibility of evidence will not
be disturbed on appeal unless plainly wrong or without evidence
to support it. See id. at 64, 389 S.E.2d at 733 (citing Martin
v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987)).
A.
HEARSAY STATEMENT OF MR. GRIFFIN ON MARCH 13, 1995
We hold that Mr. Griffin's statement falls under the
co-conspirator exception to the hearsay rule because the evidence
established a prima facie case of conspiracy between appellant
and Mr. Griffin to sell cocaine. "Conspiracy is defined as '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) (quoting Falden v. Commonwealth, 167
Va. 542, 544, 189 S.E. 326, 327 (1937)). "A conspiracy may be
proved by circumstantial evidence." Id.
Mr. Moore's testimony regarding Mr. Griffin's and
appellant's actions on March 13 supports the trial court's
conclusion that an agreement existed between the two to sell
cocaine. Mr. Moore testified that in response to his request to
purchase a "hundred rock" of crack cocaine, appellant told him to
"give me two minutes" and then disappeared behind his house.
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Shortly thereafter, Mr. Griffin appeared from appellant's house
and approached Mr. Moore in his car. After recognizing Mr. Moore
as his "little man from the pool hall," Mr. Griffin shook his
hand and told him that "its all good." Mr. Griffin then returned
to speak with appellant, made an exchange with him, and returned
to Mr. Moore's car with three packages of crack cocaine. After
Mr. Moore paid Mr. Griffin for the drugs, Mr. Griffin returned to
appellant and appeared to make another exchange with him. Mr.
Griffin's statement to Mr. Moore that "its all good" in
combination with his exchanges with appellant supports the
reasonable inference that he and appellant were engaged in a
conspiracy to sell crack cocaine.
B.
HEARSAY STATEMENT OF MR. DAVIS ON MARCH 24, 1995
We also hold that Mr. Davis' statement was admissible under
the co-conspirator exception because the evidence established the
existence of a conspiracy between Mr. Davis and appellant. Mr.
Davis testified that he occasionally sold cocaine and that he
previously obtained his supply for this purpose from appellant.
He testified that he accompanied Mr. Moore to appellant's house
on March 24 to facilitate the sale of crack cocaine between
appellant and Mr. Moore. He testified that he spoke with
appellant about selling drugs to Mr. Moore and that appellant
indicated that he was suspicious of Mr. Moore. Appellant then
told Mr. Davis "to serve the dude" and gave him "three twenties"
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of crack cocaine to sell to Mr. Moore. Mr. Moore's testimony
corroborated Mr. Davis' account of the transaction on March 24.
Mr. Moore testified that after giving Mr. Davis $100, Mr. Davis
walked over to appellant and made an exchange. Mr. Davis then
returned to Mr. Moore's car and gave him three foil-wrapped
packages of crack cocaine. The evidence of Mr. Davis' prior
dealings with appellant and their actions on March 24 supports
the reasonable inference that appellant and Mr. Davis were
working in concert to sell crack cocaine at the time the
statement at issue was made by Mr. Davis.
For the foregoing reasons, we affirm the conviction of two
counts of aiding and abetting the sale of cocaine.
Affirmed.
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