Hill v. Commonwealth

379 S.E.2d 134, 8 Va. App. 60, 5 Va. Law Rep. 2121, 1989 Va. App. LEXIS 21

• Court: Court of Appeals of Virginia
• Decided: April 4, 1989
• Docket: Record No. 0932-86-2
• Status: Published

Opinions

Opinion

ON HEARING EN BANC

COLE, J,

This case was heard en banc pursuant to Code § 17-166.02(D). The appellant, Douglas Wayne Hill, contends that his conviction for distribution of cocaine in violation of Code § 18.2-248 should be overturned because (1) the evidence was insufficient to support the conviction; (2) the trial court erred in refusing to consider the appellant’s motion to set aside the verdict on the basis of ineffective assistance of counsel; and (3) he was denied his right to effective assistance of counsel. For the reasons that follow, we affirm the conviction.

In a jury trial, Hill was convicted, sentenced to forty years in the penitentiary and fined $25,000. Twenty-five years of the penitentiary sentence and $15,000 of the fine were suspended. Hill retained new counsel and filed motions to set aside the verdict based on newly discovered evidence and ineffective assistance of counsel. The trial court barred Hill’s new counsel from presenting additional evidence on the allegation of ineffective counsel and denied the motion to set aside the verdict on that ground. Hill’s counsel then presented evidence in support of his motion to set aside the verdict on the basis of newly discovered evidence. The trial court denied the motion, finding that the evidence presented did not qualify as “newly discovered.”

I.

Hill contends that the trial judge erred in qualifying Robert Kreisheimer, who purchased the cocaine from Hill, as an expert witness in identifying cocaine. The cocaine was not produced at trial nor was any analysis of the substance admitted in evidence. Proof that the substance was cocaine was provided by Kreisheimer’s testimony, the admissions of Hill, and other circumstantial evidence. Hill argues that without Kreisheimer’s testimony, the evidence was insufficient to prove that the substance distributed was cocaine; therefore, he argues that the evidence was insufficient to prove his guilt beyond a reasonable doubt. We disagree.

The nature of the illegal substance transferred need not be proved by direct evidence but can be demonstrated by circumstantial evidence. United States v. Zielie, 734 F.2d 1447, 1456 (11th Cir. 1984), cert. denied, 469 U.S. 1189 (1985); United States v. Gregorio, 497 F.2d 1253, 1263 (4th Cir.), cert. denied, 419 U.S. 1024 (1974). The types of circumstantial evidence that may considered include the following:

[EJvidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that the transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.

United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976); see also United States v. Scott, 725 F.2d 43, 45-46 (4th Cir. 1984); Anderson v. Commonwealth, 215 Va. 21, 25-26, 205 S.E.2d 393, 396 (1974).

Users and addicts, if they have gained a familiarity or experience with a drug, may identify it. Numerous courts have permitted lay purchasers of drugs to testify as to the identification of drugs after previous use has been demonstrated. See, e.g., People v. Winston, 46 Cal.2d 151, 155-56, 293 P.2d 40, 43 (1956); Pettit v. State, 258 Ind. 409, 281 N.E.2d 807 (1972); Miller v. Commonwealth, 512 S.W.2d 941, 943 (Ky. 1974), cert. denied, 420 U.S. 935 (1975); Edwards v. Commonwealth, 489 S.W.2d 23, 25 (Ky. 1972); People v. Boyd, 65 Mich. App. 11, 236 N.W.2d 744, 746 (1975); State v. Neal, 624 S.W.2d 182, 183-84 (Mo. App. 1981); State v. Pipkin, 101 N.J. Super. 598,_, 245 A.2d 72, 74-75, cert. denied, 52 N.J. 484, 246 A.2d 1446 (1968); State Johnson, 54 Wis.2d 561,_, 196 N.W.2d 717, 719 (1972). The same rule is followed in the federal courts. United States v. Sweeney, 688 F.2d 1131, 1145 (7th Cir. 1982); United States v. Atkins, 473 F.2d 308, 313 (8th Cir.), cert. denied, 412 U.S. 931 (1973).

Abundant circumstantial evidence exists in the record from which the jury validly could have inferred that cocaine was the substance involved in the transaction between Hill and Kreisheimer. Kreisheimer testified that he had used cocaine approximately five hundred times and that he had been a cocaine dealer for several years. He testified that the substance he purchased from Hill looked like cocaine, affected him in the same manner in which cocaine affected him, and in fact was cocaine. The parties to the transaction referred to the substance as cocaine. The transaction was effected with secrecy, as evidenced by Kreisheimer’s testimony that Hill got the cocaine out of a lock box hidden inside his car trunk. Kreisheimer further testified that he owed Hill a large sum of money for the cocaine and that after Hill pressured him for the money, he told his parents that he needed to repay money owed for a cocaine transaction. It was within the jury’s province to accept or reject Kreisheimer’s testimony that the substance he bought from Hill was cocaine. “The jury has a right to weigh the testimony of all the witnesses, experts and otherwise.” Martin v. Penn, 204 Va. 822, 826, 134 S.E.2d 305, 307 (1964) (quoting Webb v. Chesapeake & Ohio Ry. Co., 105 W. Va. 555, 144 S.E. 100, 103 (1928)).

Hill further argues that even if Kreisheimer’s testimony is admissible to establish that the substance Hill sold was cocaine, the evidence adduced at trial was insufficient to show that Hill distributed cocaine or any other substance. More specifically, Hill argues that the testimony of Kreisheimer and Baker was not sufficient to sustain the Commonwealth’s burden of proof because the witnesses were convicted felons yet to be sentenced who expected favorable treatment at sentencing because of this cooperation. We find no merit in these contentions.

Although the testimony of felons may be impeached by evidence of their prior convictions, their testimony is competent and sufficient to support a conviction if credited by the jury. See Gray v. Commonwealth, 233 Va. 313, 344-45, 356 S.E.2d 157, 174-75, cert. denied, 108 S. Ct. 207 (1987); Justus v. Commonwealth, 222 Va. 667, 678, 283 S.E.2d 905, 911 (1981), cert. denied, 445 U.S. 983 (1982). The jury was aware that Kreisheimer and Baker were convicted felons and that their cooperation in testifying against Hill would be considered by the judges who would sentence them. It was within the jury’s province to assess the credibility of their testimony and to determine the weight it was to be accorded. Gray, 233 Va. at 344, 356 S.E.2d at 175-76; Johnson v. Commonwealth, 224 Va. 525, 528, 298 S.E.2d 99, 101 (1982).

We also note that the testimony of Kreisheimer and Lewis was significantly corroborated by Armstrong, Martin and Kreisheimer’s mother. Viewing all of the evidence in this record in the light most favorable to the Commonwealth and giving to that evidence all reasonable inferences fairly deducible therefrom, Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), we conclude that the evidence was sufficient to qualify Kreisheimer as an expert in identifying cocaine and to permit the jury to find beyond a reasonable doubt that Hill distributed cocaine in violation of Code § 18.2-248.

II.

Next, Hill contends that the trial court erred in refusing to consider his motion to set aside the verdict on the basis of ineffective assistance of counsel and in denying him his right to effective assistance of counsel. We consider these two allegations together.

On May 14, 1986, the day of his sentencing hearing, Hill filed a pro se motion to set aside the verdict of the jury based on ineffective assistance of counsel at the trial. His motion contained twenty separate claims of negligence against his trial attorney, including allegations of failure to call witnesses on Hill’s behalf, failure to locate and subpoena witnesses, failure to discuss issues with Hill before trial, failure to discuss trial strategy with him, failure to introduce in evidence documents he had available at trial, failure to allow Hill to testify, failure to object to inadmissible evidence, failure to cross-examine witnesses, lack of knowledge of trial rules and procedures, and other similar general allegations.

The defendant’s trial counsel was permitted to withdraw from the case after the trial and another attorney was appointed by the court to act in his stead. At a hearing on the motion, Hill proposed to offer the testimony of additional witnesses to prove his allegations of ineffective assistance of counsel and establish his right to have the jury verdict set aside. Hill argued that if he was not allowed to present evidence and to make a proper record at a post conviction hearing to support his allegations, his statutory right to claim ineffective assistance of counsel on direct appeal would be a nullity. The trial court refused to permit the taking of additional evidence and limited argument on the motion to the record made at the trial of the defendant’s case.

In Walker v. Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983), the Supreme Court faced the issue whether a claim of ineffective assistance of counsel is cognizable on direct appeal from a criminal conviction. Citing its Rule 5:21, the counterpart to our Rule 5A.T8, the court stated that it would not consider assigning error to a ruling of the trial court “unless the objection was stated with reasonable certainty at the time of the ruling.” Id. at 570, 299 S.E.2d at 699. It observed that “[i]t would be a rare case, indeed, where counsel would raise in the trial court, and seek that court’s ruling upon, his own inadequacies in representing an accused.” Id. Such claims involve matters not appearing in the record of a criminal trial. Id. The ordinary trial record is not developed adequately to permit on direct appeal a fair resolution of questions involving ineffective assistance. Id. at 570-71, 299 S.E.2d at 699. Such a rule would inject into the criminal proceeding “tangential and confusing issues, consequently directing attention from the true fact-finding purpose of criminal trials.” Id. at 571, 299 S.E.2d at 699.

The Supreme Court held that Walker could not raise the issue of ineffectiveness of counsel on direct appeal.

A separate habeas corpus proceeding affords both sides an opportunity to develop fully the factual and legal basis of their positions with respect to a claim of ineffective assistance of counsel. Using affidavits where appropriate (Code § 8.01-660) or a plenary hearing when necessary (Code § 8.01-662), the parties can produce a complete record, one that will permit an intelligent disposition of the habeas petition both in the trial court and on appeal.

224 Va. at 571, 299 S.E.2d at 699.

However, the Court did not completely shut the door to claims of ineffective assistance of counsel on direct appeal. It said that “if the record of the criminal trial is sufficient itself to show the merit or lack of merit of a habeas petition, the case may be determined upon the record alone.” Id. at 571, 299 S.E.2d at 699. Further, Code § 8.01-654(B) (4) provides that in the event the claims of illegality of the petitioner’s detention can be fully determined on the basis of recorded matters, the court may make its determination whether such writ should issue on the basis of the record. Thus, both Walker and Code § 8.01-654(B)(4) recognize that there may be instances where the trial record is sufficient for a trial or appellate court to grant relief to the petitioner, but neither makes any provision for the taking of additional evidence to supplement the trial record.

Perhaps in response to Walker, Code § 19.2-317.1 was enacted in 1985:

A claim of ineffective assistance of counsel may be raised on direct appeal if assigned as error and if all matters relating to such issues are fully contained within the record of the trial.

Since its enactment, the Supreme Court has had several occasions to discuss the effect of Code § 19.2-317.1 upon the issue of ineffective assistance of counsel. In Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986), the Court said:

In view of the seriousness of a charge of ineffective assistance, counsel is entitled to the opportunity to state his reasons for his acts of commission and omission now subjected to challenge. On the other hand, we will not rule as a matter of law, upon this record, that counsel’s conduct was consistent with reasonable trial strategy and therefore was not ineffective. We will not impute to counsel a certain rationale and thereby deny the defendant the opportunity to demonstrate, by evidence which might be obtained in a plenary hearing, that counsel had no such tactical basis for his actions.

Id. at 400, 345 S.E.2d at 288; see also Correll v. Commonwealth, 232 Va. 454, 470, 352 S.E.2d 352, 362, cert. denied, 107 S. Ct. 3219 (1987) (a claim of ineffective counsel cannot be resolved on direct appeal “unless counsel charged with ineffectiveness has had an opportunity to defend himself on the record by giving the rationale for his challenged acts of omission or commission”); Beaver v. Commonwealth, 232 Va. 521, 537-38, 352 S.E.2d 342, 351-52, cert. denied, 107 S. Ct. 3277 (1987); Payne v. Commonwealth, 233 Va. 460, 475, 357 S.E.2d 500, 509, cert. denied, 108 S. Ct. 308 (1987); Payne v. Commonwealth, 5 Va. App. 498, 504, 364 S.E.2d 765, 768 (1987). None of these cases has addressed the issue whether the trial court is permitted to take additional evidence to support an allegation of ineffective assistance of counsel.

Both Walker and Code § 8.01-654(B)(4) clearly envision that there may be some cases in which the trial record will be sufficient for a determination of whether counsel was ineffective and further testimony is not necessary to resolve the issue. In Correll, the Supreme Court “acknowledge [d] the possibility that errors so egregious as to preclude explanation may appear in the record of some future appeal.” 232 Va. at 470, 352 S.E.2d at 362. We find that Code § 19.2-317.1 was enacted to provide a defendant with an opportunity for immediate relief rather than requiring him to pursue the habeas corpus route in cases where the incompetence of counsel is so egregious as to preclude an adequate explanation and all matters pertaining to such issue are fully contained within the record of the trial. In those cases where ineffectiveness is not apparent in the trial record, a defendant’s only remedy is a habeas corpus proceeding. Hill does not claim that the trial record is sufficient to prove the ineffectiveness of his counsel. He contends, rather, that if permitted the opportunity to present evidence, he. could demonstrate ineffectiveness of his counsel. This is a procedure appropriate for habeas corpus, and we hold that his case should follow the traditional route.

The dissenting opinion contends that there is no rational basis for differentiating between an ineffective assistance of counsel claim and any other post-verdict motion to set aside a verdict which would require an evidentiary hearing. The dissent maintains that if Code § 19.2-317.1 is to be of any import, trial courts must have the discretion to conduct evidentiary hearings in order to address questions of ineffective counsel. In Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1984), cert. denied, 419 U.S. 1108 (1975), the Supreme Court held that Parrigan was not entitled to circumvent the trial and appellate processes in a habeas corpus proceeding. Since the constitutional issue involved could have been raised and adjudicated at Parrigan’s trial, he had no standing to attack his final judgment of conviction by habeas corpus. Id. at 30, 205 S.E.2d at 682; see also Walker, 224 Va. at 571, 299 S.E.2d at 699. Applying the Parrigan holding, if Hill could assert his claim of ineffective assistance of counsel through the procedure of a post-trial motion, he might be foreclosed from asserting the claim in a later habeas corpus proceeding. A separate habeas corpus proceeding gives both sides an opportunity to fully develop the facts and legal basis of an ineffective assistance of counsel issue. We decline to adopt a position that might, in many cases, restrict the defendant’s right to pursue a claim in habeas corpus.

By amendment to Code § 17-116.05:1 (B), effective July 1, 1985, “the General Assembly terminated the jurisdiction of this Court to hear and determine appeals from a final decision, judgment or order of a circuit court involving a petition for a writ of habeas corpus.” White v. Garraghty, 2 Va. App. 117, 122, 341 S.E.2d 402, 405 (1986). The clear legislative intent embodied in the 1985 amendment was that habeas corpus cases on appeal from the circuit courts should go directly to the Supreme Court. At the same session, also effective July 1, 1985, the General Assembly passed Code § 19.2-317.1, stating that “a claim of ineffective assistance of counsel may be raised on direct appeal if assigned as error and if all matters relating to such issue are fully contained within the record of the trial.” We find within these statutes no intent on the part of the General Assembly to intermingle the procedures of a criminal case with those of the civil habeas corpus proceeding, except under the limited circumstance that all matters are fully contained in the traditional trial record. We do not believe that the General Assembly would terminate our habeas corpus jurisdiction and, at the same session, pass a statute destined to permit practically unlimited appeals to us in an area where habeas corpus petitions are most prevalent.

From a practical standpoint, the procedure followed at a post-conviction hearing would be exeedingly awkward and cumbersome. Trial counsel would be forced to withdraw from the case in anticipation of being called as a witness. New counsel would have to be employed or appointed, and given time to become familiar with the facts of the case and the ruling of the trial court. The trial record would have to be transcribed. Counsel would need more time to study the transcript, interrogate and subpoena witnesses, in some cases employ expert witnesses, and otherwise prepare for the hearing. Anything less would be unfair to the defendant. The hearing on the post-conviction motion would entail a delay in sentencing or in enforcing the sentence. Thus, a convicted criminal would be on the street or perhaps in a local jail instead of the penitentiary until the completion of this proceeding. Perhaps more important from the defendant’s point of view, direct appellate review of any other issues he wishes to raise would be delayed.

The General Assembly did not intend this result when it passed Code § 19.2-317.1. The words “within the record of the trial” refer to the record of the trial of the defendant upon the charges against him, not to a trial of his attorney made at the conclusion of the traditional trial. For these reasons, we believe that this type of post-conviction motion is different from other post-conviction motions related to matters raised at trial and contained within the trial record.

We conclude that the trial court did not err in refusing to allow Hill to introduce additional evidence on the wide range of issues he raised. Furthermore, since the record contains no explanation from trial counsel for the actions which prompted Hill’s claim of ineffective assistance of counsel, we will not entertain these issues on direct appeal. No unfairness ensues from the refusal to allow the introduction of additional evidence in a post-trial proceeding because Hill has available to him his habeas corpus remedy.

For the reasons stated, we find no error and affirm.

Affirmed.

Koontz, C.J., Baker, J., Coleman, J., Hodges, J., Keenan, J., and Moon, J., concurred.