COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner Argued at Norfolk, Virginia
JAMES T. SYKES MEMORANDUM OPINION * BY v. Record No. 2125-97-1 JUDGE SAM W. COLEMAN III JULY 7, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. Askew, Judge Edward I. Sarfan (Sarfan & Nachman, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
James T. Sykes appeals his bench trial convictions for three
counts of possession of cocaine with intent to distribute. See
Code § 18.2-248. Specifically, he contends: (1) the trial court
abused its discretion by trying him in his absence when he failed
to appear for the conclusion of his trial; (2) the trial court
erroneously refused to compel the Commonwealth to disclose the
identity of an informer; and (3) the evidence is insufficient as
a matter of law to support the convictions. We disagree and
affirm the convictions. I. BACKGROUND
The evidence proved that a reliable informer told City of
Newport News Police Detective Robert Vasquez that Sykes was
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. distributing crack cocaine from his home. Vasquez and the
informer went to Sykes' apartment. Vasquez had instructed the
informer to excuse himself to Sykes' bathroom upon arrival and to
remain there while Vasquez purchased drugs from Sykes.
Sykes greeted Vasquez and the informer at the front door,
and, as arranged, the informer excused himself to the bathroom.
Vasquez told Sykes he wanted to purchase an "eight ball,"
street lingo for a quantity of cocaine. Sykes walked to an
adjacent room and returned with several rocks of crack cocaine.
Sykes handed the cocaine to Vasquez in exchange for $170.
Vasquez and the informer then left. At trial, Vasquez testified that he did not know whether the
informer had come out of the bathroom during the drug transaction
or heard the conversation with Sykes. Vasquez also testified
that on two occasions he returned to Sykes' residence and
purchased crack cocaine from Sykes. Sykes was charged with three
counts of possession of cocaine with intent to distribute.
Sykes' trial began on April 18, 1996. At the close of the
Commonwealth's evidence, Sykes made a motion to strike the
evidence. The trial court ordered a continuance in order for
counsel to submit legal memoranda regarding the motion to strike.
The court instructed defense counsel to "set [the conclusion of
the trial] on another date in this Court." On June 3, 1996, the
court continued the matter generally with the direction that "the
defendant's attorney is to set [a] trial date with the
- 2 - Commonwealth['s] Attorney." On July 17, 1996, Sykes failed to
appear for the resumption of trial, and the case was continued to
August 12, 1996. On August 12, Sykes again failed to appear, and
a capias was issued for his arrest. Despite attempts to locate
Sykes, the Commonwealth was unable to serve the capias. On April
23, 1997, more than one year after the trial had commenced, the
trial court completed the guilt phase of the trial in Sykes'
absence. The court found him guilty of three counts of
possession of cocaine with intent to distribute.
II. RESUMING TRIAL IN APPELLANT'S ABSENCE
An accused's right to be present at trial arises from the
Confrontation Clause of the Sixth Amendment and Code § 19.2-259.
Cruz v. Commonwealth, 24 Va. App. 454, 460, 482 S.E.2d 880, 883
(1997) (en banc); Hunter v. Commonwealth, 13 Va. App. 187, 190,
409 S.E.2d 483, 485 (1991). However, a defendant's voluntary
absence from trial may be properly construed as a waiver of his
constitutional and statutory rights to be present at trial. Id.
"[W]hen the trial court determines that a defendant has
voluntarily and knowingly absconded from the jurisdiction after
his trial has commenced, public policy dictates that a trial
court, exercising its broad discretion, may proceed with the
trial in the defendant's absence." Barfield v. Commonwealth,
20 Va. App. 447, 453, 457 S.E.2d 786, 789 (1995).
In the present case, at the conclusion of the Commonwealth's
evidence, the trial judge instructed the parties to coordinate a
- 3 - date to complete the trial. Sykes failed to appear at the next
three scheduled trial dates. The trial court issued a capias for
Sykes' failure to appear, which capias remained outstanding for
several months. To no avail, the Commonwealth searched for Sykes
in an effort to serve the capias. More than one year after the
Commonwealth presented its case, defense counsel offered no
explanation to explain Sykes' absence and failure to appear for
trial. Under the circumstances, the trial court reasonably could
conclude that Sykes had absconded the jurisdiction and
voluntarily waived his right to be present at the remainder of
his trial. Citing the Cruz holding, Sykes contends the trial court
could not find that he voluntarily waived his right to be present
at trial unless the court had previously warned him that he could
be tried in his absence if he failed to appear. We disagree.
Sykes' argument ignores the dichotomy between the principles
applicable to a defendant's failure to appear for the
commencement of trial and the principles applicable when a
defendant absents himself and fails to appear mid-trial. See
Crosby v. United States, 506 U.S. 255, 260-61 (1993). Cruz,
dealing with a defendant's absence at the commencement of trial,
held that an accused's voluntary waiver of his right to be
present for the "entire trial" cannot be shown unless, among
other things, he has been warned that his trial may continue in
his absence. 24 Va. App. at 463, 482 S.E.2d at 884 (emphasis
- 4 - added). In Taylor v. United States, 414 U.S. 17 (1973), the
United States Supreme Court expressly rejected the contention
that a defendant who fails to appear in the middle of trial
cannot be found to have voluntarily waived his right to be
present unless it is demonstrated that he was warned that the
trial will proceed in his absence. 414 U.S. at 20-21. The Court
stated: It is wholly incredible to suggest that [the defendant], who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at trial . . . entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us . . . that a defendant who flees from a courtroom in the midst of a trial -- where judge, jury, witnesses and lawyers are present and ready to continue -- would not know that as a consequence the trial could continue in his absence.
Id. at 21 (citations omitted).
Admittedly, the trial court in this instance interrupted the
orderly progress of the trial by granting unduly lengthy,
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner Argued at Norfolk, Virginia
JAMES T. SYKES MEMORANDUM OPINION * BY v. Record No. 2125-97-1 JUDGE SAM W. COLEMAN III JULY 7, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. Askew, Judge Edward I. Sarfan (Sarfan & Nachman, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
James T. Sykes appeals his bench trial convictions for three
counts of possession of cocaine with intent to distribute. See
Code § 18.2-248. Specifically, he contends: (1) the trial court
abused its discretion by trying him in his absence when he failed
to appear for the conclusion of his trial; (2) the trial court
erroneously refused to compel the Commonwealth to disclose the
identity of an informer; and (3) the evidence is insufficient as
a matter of law to support the convictions. We disagree and
affirm the convictions. I. BACKGROUND
The evidence proved that a reliable informer told City of
Newport News Police Detective Robert Vasquez that Sykes was
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. distributing crack cocaine from his home. Vasquez and the
informer went to Sykes' apartment. Vasquez had instructed the
informer to excuse himself to Sykes' bathroom upon arrival and to
remain there while Vasquez purchased drugs from Sykes.
Sykes greeted Vasquez and the informer at the front door,
and, as arranged, the informer excused himself to the bathroom.
Vasquez told Sykes he wanted to purchase an "eight ball,"
street lingo for a quantity of cocaine. Sykes walked to an
adjacent room and returned with several rocks of crack cocaine.
Sykes handed the cocaine to Vasquez in exchange for $170.
Vasquez and the informer then left. At trial, Vasquez testified that he did not know whether the
informer had come out of the bathroom during the drug transaction
or heard the conversation with Sykes. Vasquez also testified
that on two occasions he returned to Sykes' residence and
purchased crack cocaine from Sykes. Sykes was charged with three
counts of possession of cocaine with intent to distribute.
Sykes' trial began on April 18, 1996. At the close of the
Commonwealth's evidence, Sykes made a motion to strike the
evidence. The trial court ordered a continuance in order for
counsel to submit legal memoranda regarding the motion to strike.
The court instructed defense counsel to "set [the conclusion of
the trial] on another date in this Court." On June 3, 1996, the
court continued the matter generally with the direction that "the
defendant's attorney is to set [a] trial date with the
- 2 - Commonwealth['s] Attorney." On July 17, 1996, Sykes failed to
appear for the resumption of trial, and the case was continued to
August 12, 1996. On August 12, Sykes again failed to appear, and
a capias was issued for his arrest. Despite attempts to locate
Sykes, the Commonwealth was unable to serve the capias. On April
23, 1997, more than one year after the trial had commenced, the
trial court completed the guilt phase of the trial in Sykes'
absence. The court found him guilty of three counts of
possession of cocaine with intent to distribute.
II. RESUMING TRIAL IN APPELLANT'S ABSENCE
An accused's right to be present at trial arises from the
Confrontation Clause of the Sixth Amendment and Code § 19.2-259.
Cruz v. Commonwealth, 24 Va. App. 454, 460, 482 S.E.2d 880, 883
(1997) (en banc); Hunter v. Commonwealth, 13 Va. App. 187, 190,
409 S.E.2d 483, 485 (1991). However, a defendant's voluntary
absence from trial may be properly construed as a waiver of his
constitutional and statutory rights to be present at trial. Id.
"[W]hen the trial court determines that a defendant has
voluntarily and knowingly absconded from the jurisdiction after
his trial has commenced, public policy dictates that a trial
court, exercising its broad discretion, may proceed with the
trial in the defendant's absence." Barfield v. Commonwealth,
20 Va. App. 447, 453, 457 S.E.2d 786, 789 (1995).
In the present case, at the conclusion of the Commonwealth's
evidence, the trial judge instructed the parties to coordinate a
- 3 - date to complete the trial. Sykes failed to appear at the next
three scheduled trial dates. The trial court issued a capias for
Sykes' failure to appear, which capias remained outstanding for
several months. To no avail, the Commonwealth searched for Sykes
in an effort to serve the capias. More than one year after the
Commonwealth presented its case, defense counsel offered no
explanation to explain Sykes' absence and failure to appear for
trial. Under the circumstances, the trial court reasonably could
conclude that Sykes had absconded the jurisdiction and
voluntarily waived his right to be present at the remainder of
his trial. Citing the Cruz holding, Sykes contends the trial court
could not find that he voluntarily waived his right to be present
at trial unless the court had previously warned him that he could
be tried in his absence if he failed to appear. We disagree.
Sykes' argument ignores the dichotomy between the principles
applicable to a defendant's failure to appear for the
commencement of trial and the principles applicable when a
defendant absents himself and fails to appear mid-trial. See
Crosby v. United States, 506 U.S. 255, 260-61 (1993). Cruz,
dealing with a defendant's absence at the commencement of trial,
held that an accused's voluntary waiver of his right to be
present for the "entire trial" cannot be shown unless, among
other things, he has been warned that his trial may continue in
his absence. 24 Va. App. at 463, 482 S.E.2d at 884 (emphasis
- 4 - added). In Taylor v. United States, 414 U.S. 17 (1973), the
United States Supreme Court expressly rejected the contention
that a defendant who fails to appear in the middle of trial
cannot be found to have voluntarily waived his right to be
present unless it is demonstrated that he was warned that the
trial will proceed in his absence. 414 U.S. at 20-21. The Court
stated: It is wholly incredible to suggest that [the defendant], who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at trial . . . entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us . . . that a defendant who flees from a courtroom in the midst of a trial -- where judge, jury, witnesses and lawyers are present and ready to continue -- would not know that as a consequence the trial could continue in his absence.
Id. at 21 (citations omitted).
Admittedly, the trial court in this instance interrupted the
orderly progress of the trial by granting unduly lengthy,
mid-trial continuances. Nonetheless, once trial has commenced, a
party knows that the trial of the case is in progress and will be
resumed at a reasonably foreseeable date. As the Court stated in Taylor, it is incredible for a defendant to think that he can
absent himself mid-trial even when a mid-trial continuance was
granted, and think that the case would not proceed in his
absence. Thus, the trial court could properly find that Sykes
voluntarily absented himself from the remainder of his trial
- 5 - notwithstanding whether he was admonished that the trial could
continue in his absence.
Accordingly, the trial court did not abuse its discretion in
concluding the trial in Sykes' absence when he voluntarily
absented himself from the proceedings for more than one year.
III. REFUSAL TO DISCLOSE IDENTITY OF INFORMER
As a general rule, "the identity of a person furnishing the
prosecution with information concerning criminal activities is
privileged." Gray v. Commonwealth, 233 Va. 313, 328, 356 S.E.2d
157, 165 (1987). In Roviaro v. United States, 353 U.S. 53
(1957), the Supreme Court established an exception to this general rule, . . . [holding] that "where the disclosure of an informer's identity . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [of nondisclosure] must give way." The Court stated that "no fixed rule with respect to disclosure is justifiable" and explained that "[t]he problem is one that calls for balancing the public interest in protecting the flow of information [to the police] against the [accused's] right to prepare his defense."
Daniel v. Commonwealth, 15 Va. App. 736, 739-40, 427 S.E.2d 423,
425 (1993) (citations omitted). The privilege is generally
nullified where the informer "participates in the transaction
. . . and . . . could relate testimony helpful to the defense."
Stephenson v. Commonwealth, 18 Va. App. 247, 250, 443 S.E.2d 173,
175 (1994). However, "[t]he defendant must come forward with
something more than speculation as to the usefulness of the
- 6 - identity of the informer." Lanier v. Commonwealth, 10 Va. App.
541, 552-53, 394 S.E.2d 495, 502 (1990); see Stephenson, 18 Va.
App. at 251, 443 S.E.2d at 175.
Here, Sykes failed to prove that the informer knew the facts
of the alleged drug transaction or that the disclosure of the
informer's identity would have been helpful to his defense or
essential to a fair determination of the case. The
uncontroverted evidence established that the informer was in the
bathroom when the transaction occurred. Nothing in the record
suggests that the informer participated in, observed, or
instigated the drug transaction. Cf. Kenner v. Commonwealth,
8 Va. App. 208, 213, 380 S.E.2d 21, 24-25 (1989) (requiring
disclosure of informer's identity where evidence established that
informer was "actual participant and . . . witness" to offenses
charged). Accordingly, the trial court did not err in refusing
to disclose the identity of the informer.
IV. SUFFICIENCY OF THE EVIDENCE Sykes contends the evidence is insufficient to prove that he
possessed cocaine with intent to distribute because the evidence
proves that he actually distributed cocaine. His argument is
disingenuous. The same act or acts may violate two or more
statutes or constitute two or more crimes. Viewed in the light
most favorable to the Commonwealth, see Derr v. Commonwealth, 242
Va. 413, 424, 410 S.E.2d 662, 668 (1991), the evidence proved
that on three occasions, pursuant to Officer Vasquez's request to
- 7 - purchase cocaine, Sykes handed cocaine to Vasquez in exchange for
money. This evidence supported the trial court's finding that
Sykes actually possessed cocaine and intended to distribute it.
See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415,
418 (1987). That the evidence may have also proved that Sykes
actually distributed cocaine is inapposite. The decision to
prosecute Sykes for possession of cocaine with intent to
distribute rather than for distribution was a matter of
prosecutorial discretion and is not reviewable by this Court. See Mason v. Commonwealth, 217 Va. 321, 323-24, 228 S.E.2d 683,
684 (1976).
For the foregoing reasons, we affirm the convictions.
Affirmed.
- 8 -