Raymont Tasco v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, ∗ Elder and Annunziata
Argued at Richmond, Virginia
RAYMONT TASCO
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2946-99-2 JUDGE LARRY G. ELDER
JANUARY 9, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Robert G. O'Hara, Jr., Judge
Jacqueline Waymack (Butterworth & Waymack, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Raymont Tasco appeals from a judgment of the Hopewell
Circuit Court convicting him of possessing cocaine with intent
to distribute. He contends the trial court abused its
discretion by failing to appoint him new counsel after his
lawyer decided to testify on his behalf and that the evidence
was insufficient to convict him. Upon review, we conclude that
appellant has failed to show that he was prejudiced when the
∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
trial court appointed defense counsel's partner to replace
defense counsel when she decided to testify. We also find that
appellant has failed to establish that the judge's ruling
impaired appellant's right to counsel under the Sixth Amendment.
Finally, the Commonwealth's evidence was sufficient to convict
appellant of possessing crack cocaine with intent to distribute.
Accordingly, we affirm the judgment of the trial court.
I.
Upon the commencement of appellant's trial, the
Commonwealth called Officer Pisarek, who, in the course of his
testimony, stated that he saw appellant make a throwing motion
while he was pursuing appellant. Pisarek testified that, after
appellant was apprehended, he returned to the area where he saw
appellant make this motion and he recovered a bag containing a
quantity of crack cocaine.
Before beginning her cross-examination of Pisarek, defense
counsel announced that there was a discrepancy between the
officer's trial testimony and his testimony at appellant's
preliminary hearing. Defense counsel proffered that Pisarek had
not testified at the preliminary hearing that appellant made a
throwing motion during the pursuit. She moved to withdraw so
she could testify regarding these inconsistencies on appellant's
behalf.
The trial court declined to permit defense counsel to
withdraw. Instead, the court continued the trial for two months
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and directed that defense counsel's law partner represent
appellant at trial if it was necessary for defense counsel to
testify.
When the trial resumed, defense counsel's partner renewed
the motion to withdraw citing the ethical dilemma posed by the
law partnership continuing to represent appellant when one of
the partners would be testifying on appellant's behalf. The
court denied the motion, expressing a reluctance to change
attorneys mid-trial and reiterating its belief that the
arrangement of having defense counsel's partner defend the case
was the best way to protect appellant's rights.
Defense counsel subsequently testified that Pisarek did not
mention appellant making a throwing motion when the officer
testified at the preliminary hearing.
In finding the evidence sufficient to convict appellant,
the trial court made no specific reference to the credibility of
defense counsel's testimony.
A. Violation of Disciplinary Rules
Appellant contends the trial court's refusal to permit his
defense counsel's law firm to withdraw resulted in a violation
of the Disciplinary Rules and prejudiced him because defense
counsel's need to testify created a conflict of interest that
interfered with counsel's ability to zealously represent him.
The Disciplinary Rules, which are incorporated into the
Rules of the Supreme Court of Virginia, "state the minimum level
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of conduct below which no lawyer can fall without being subject
to disciplinary action." Preamble, Section II Va. Code of Prof.
Resp. 1 Although the Disciplinary Rules are "mandatory in
character," Preamble, Section II Va. Code of Prof. Resp., this
Court and the Supreme Court of Virginia have questioned "'the
propriety of equating the force of a disciplinary rule with that
of decisional or statutory law'" in state court proceedings.
Fisher v. Commonwealth, 26 Va. App. 788, 794, 497 S.E.2d 162,
165 (1998) (quoting Shuttleworth, Ruloff, Giordano, P.C. v.
Nutter, 254 Va. 494, 498, 493 S.E.2d 364, 366 (1997)); cf. Wheat
v. United States, 486 U.S. 153, 160 (1988) (holding that
"[f]ederal courts have an independent interest in ensuring that
criminal trials are conducted within the ethical standards of
the [legal] profession" (emphasis added)).
When a lawyer concludes she must testify on behalf of her
client, she "shall withdraw from the conduct of the trial and
[her] firm, if any, shall not continue representation in the
trial, except that [she] may continue the representation and
[she] or a lawyer in [her] firm may testify in the circumstances
enumerated in DR:5-101(B)(1) through (3)." DR:5-102(A). An
attorney need not withdraw if 1) the testimony relates to a
substantially uncontested matter; 2) it pertains to the value of
1
The Virginia Code of Professional Responsibility was
replaced by the Rules of Professional Conduct, effective
January 1, 2000. Because this case was tried in 1999, we will
analyze this issue using the rules in force at the time.
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legal services provided; or 3) withdrawal would work an undue
hardship on the client. DR:5-101(B)(1) through (3). A trial
court's refusal to permit counsel to withdraw mid-trial in order
to testify on behalf of her client will not be reversed absent
an abuse of discretion. Fisher, 26 Va. App. at 794, 497 S.E.2d
at 165 (holding that the trial court did not abuse its
discretion in refusing to permit counsel to withdraw and testify
to impeach a police officer where defense counsel had failed to
lay the proper foundation for such testimony); People v. Cain,
303 N.E.2d 756, 759 (Ill. App. 1973) (holding that although it
is generally improper for an attorney to testify on behalf of
his client, the defendant failed to establish prejudice where
the attorney's testimony was favorable to the defendant).
Appellant claims that defense counsel's decision to testify
without her firm being allowed to withdraw resulted in a
prejudicial conflict of interest. "The burden of establishing
an alleged conflict of interest between an attorney and his
client is upon the person who asserts such a conflict." Turner
v. Commonwealth, 259 Va. 816, 819, 528 S.E.2d 112, 114 (2000).
"An actual conflict of interest exists when the attorney's
interests and the defendant's interests 'diverge with respect to
a material factual or legal issue or to a course of action.'"
Moore v. Hinkle, 259 Va. 479, 487, 527 S.E.2d 419, 424 (2000)
(citation omitted). Where a criminal defendant establishes the
existence of an actual conflict of interest, then prejudice is
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presumed. Id. (finding no conflict even though the defense
attorney's attention to personal matters had been to the
detriment of counsel's representation of the defendant); Carter
v. Commonwealth, 16 Va. App. 42, 48, 427 S.E.2d 736, 740 (1993) 2
(finding that the defendant had presented no proof "of any
undisclosed misconduct by defense counsel that constituted a
conflict of interest that prevented them from vigorously
defending their client").
Appellant has failed to demonstrate how defense counsel's
decision to testify on his behalf created an actual conflict of
interest between him and his attorneys. He has never
articulated how this decision interfered with the attorneys'
ability to zealously represent him. Moreover, the court granted
appellant a two-month continuance, during which time defense
counsel's partner had the opportunity to adequately prepare for
trial. Cf. Fish v. Commonwealth, 208 Va. 761, 766-67, 160
S.E.2d 576, 580 (1968) (finding prejudicial error where, after
defense counsel testified on the defendant's behalf, the trial
court ordered that defense counsel's partner make closing
arguments in the trial without giving the partner a sufficient
2
This was an appeal following remand. In Carter v.
Commonwealth, 11 Va. App. 569, 400 S.E.2d 540 (1991), the Court
remanded the case to the trial court to conduct a hearing to
determine the nature and extent of the alleged conflict of
interest. Appellant has requested no such hearing and has not
challenged the sufficiency of the trial court's inquiry (just
its conclusion).
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opportunity to prepare). We will not presume that a conflict of
interest arose based solely on the possible violation of the
Disciplinary Rules. See Carter, 16 Va. App. at 48, 427 S.E.2d
at 740.
Appellant's contention that he was prejudiced because the
trial court discounted defense counsel's testimony is also
unpersuasive. Not only did appellant fail to present this
argument to the trial court, see Rule 5A:18, but also the record
does not conclusively demonstrate that the court found--as
appellant asserts in his brief--that defense counsel lied on the
stand. Defense counsel's testimony was consistent with
Pisarek's police report, in which no mention was made of a
throwing motion. Pisarek never claimed that he testified about
the throwing motion at the preliminary hearing. The trial court
could have found that Pisarek neglected to mention the throwing
motion at the preliminary hearing and yet still have accepted
the officer's trial testimony that he witnessed appellant make a
throwing motion. Appellant's claim of prejudice is without
adequate support in the record.
Accordingly, appellant has failed to establish the trial
court abused its discretion. 3
3
It clearly would have been preferable for defense counsel
to have cross-examined Pisarek before attempting to withdraw to
testify. Neither party ever asked the officer whether he
mentioned the throwing motion at the preliminary hearing. Had
he been asked, he may well have admitted that he did not mention
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B. Sixth Amendment
"The Sixth Amendment to the United States Constitution
guarantees a defendant in a criminal trial the right to
effective assistance of counsel." Pender v. Angelone, 257 Va.
501, 503, 514 S.E.2d 756, 756-57 (1999). The right to the
effective assistance of counsel is separate and distinct from a
defendant's right to counsel. Browning v. Commonwealth, 19 Va.
App. 295, 297 n.2, 452 S.E.2d 360, 362 n.2 (1994).
This case does not involve denial of appellant's right to
counsel, for when defense counsel testified, her partner was
present, assisting appellant. Cf. id. at 298-99, 452 S.E.2d at
362 (holding that the defendant was denied his right to counsel
when the court ordered defense counsel to testify at a hearing
and no one was assisting the defendant while his lawyer was
testifying). And to the extent appellant claims that he was
denied effective assistance of counsel, it is clear that such a
claim may not be raised on direct appeal to this Court. Code
§ 19.2-317.1, which allowed direct appeal of claims of
ineffective assistance of counsel under certain circumstances,
was repealed in 1990. See 1990 Va. Acts, ch. 74; Walker v.
Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983). Accordingly, we
do not reach this issue.
the throwing motion, thus obviating the need for counsel to
testify.
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II.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). We regard as true all credible evidence
that is favorable to the Commonwealth. Watkins v. Commonwealth,
26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998). "This Court
does not substitute its judgment for that of the trier of fact,
and the trial court's judgment will not be set aside unless
plainly wrong or without evidence to support it." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999)
(citation omitted).
Thus viewed, the evidence proved that Officer Pisarek was
working with Trooper Garrett when he observed appellant standing
next to a car, talking to the vehicle's driver. Appellant had
an open beer bottle in one hand and money in the other. After
appellant took a drink from the bottle, Pisarek approached with
the intention of charging appellant with drinking in public.
Upon seeing Pisarek and Garrett approach, the driver of the car
got a concerned look on her face and drove off quickly.
Pisarek informed appellant that he was going to issue
appellant a summons for drinking in public. During a pat-down
of appellant's outer clothing, Pisarek felt a wad of money and a
plastic bag containing "several rock-like objects" in
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appellant's pants pocket. Concluding that appellant possessed
crack cocaine, Pisarek alerted Garrett, began to try to handcuff
appellant, and informed appellant that he was under arrest.
Appellant broke free of Pisarek and fled. The officers
pursued appellant, with Garrett circling around the block to cut
off appellant's path of retreat. Pisarek testified that as he
pursued appellant through the backyard of a vacant residence, he
saw appellant reach into his pants pocket, remove his hand,
extend his arm, and drop a small dark item to the ground. As
appellant ran into the driveway of the vacant house, Garrett
arrived and appellant halted his flight. Other than law
enforcement officers, appellant was the only person on the
property. Pisarek asserted that he never lost sight of
appellant during the pursuit.
After appellant was secured, Pisarek returned to the spot
where appellant had made the throwing motion. There, he
recovered a plastic bag that contained forty-six
individually-packaged pieces of crack cocaine. Upon searching
appellant's person, Officer Hunter recovered $256 in cash and a
plastic bag containing a rock of crack cocaine. This cocaine
was packaged in a manner that appeared identical to some of the
crack cocaine found by Pisarek.
Garrett testified that Pisarek informed him about appellant
making the throwing motion and recovering the bag of drugs.
Pisarek admitted that, in his written police report, he made no
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reference to appellant making a throwing motion, or going back
afterwards and locating the bag of drugs. Garrett and Pisarek's
testimony differed on a number of points, including the timing
of and purpose for bringing in a drug-sniffing police dog.
"Determining the credibility of witnesses who give
conflicting accounts is within the exclusive province of the
[trier of fact], which has the unique opportunity to observe the
demeanor of the witnesses as they testify." Lea v.
Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993).
"The conclusions of the fact finder on issues of witness
credibility 'may only be disturbed on appeal if this Court finds
that [the witness'] . . . testimony was "inherently incredible,
or so contrary to human experience as to render it unworthy of
belief."'" Moyer v. Commonwealth, 33 Va. App. 8, 28, 531 S.E.2d
580, 590 (2000) (en banc) (citation omitted).
In assessing credibility, the trial court may accept that
part of a witness' testimony it believes and reject that part it
concludes is implausible. Id.The fact that a witness makes inconsistent
statements in regard to the subject matter
under investigation does not render his
testimony nugatory or unworthy of belief.
It is the province of the trier of the facts
. . . "to pass upon such inconsistent
statements and give or withhold their assent
to the truthfulness of the particular
statement." It is firmly imbedded in the
law of Virginia that the credibility of a
witness who makes inconsistent statements on
the stand is a question . . . for the trial
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court as a trier of the facts sitting
without a jury.
Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258,
259 (1989) (citation omitted).
Pisarek said he saw appellant make a throwing motion during
the pursuit and that, upon returning to the area, he found a bag
containing crack cocaine there. Garrett confirmed that Pisarek
told him about the throwing motion and recovering the drugs.
There was no evidence that Pisarek planted the drugs, and
appellant was the only person who had been seen in the vicinity
where Pisarek recovered the narcotics. See Brown v.
Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en
banc) (holding that the Commonwealth "is not required to prove
that there is no possibility that someone else may have planted,
discarded, abandoned or placed drugs"); Powell v. Commonwealth,
27 Va. App. 173, 178, 497 S.E.2d 899, 901 (1998) (noting that
drugs are a commodity of significant value, unlikely to be
abandoned or carelessly left in an area).
While Pisarek made prior inconsistent or incomplete
statements, and there were conflicts between his and Garrett's
testimony, it was the responsibility of the trial court to judge
the credibility of the witnesses. The trial court, which was
aware of the weaknesses in the Commonwealth's evidence, had the
opportunity to view the witnesses as they testified and judge
their demeanor. We cannot say, as a matter of law, that
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Pisarek's trial testimony was inherently incredible or otherwise
unworthy of belief. We will not, therefore, disturb appellant's
conviction.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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