Patrick Howard Bailey v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 18, 2000
• Docket: 0266994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunziata and Bumgardner Argued at Salem, Virginia

PATRICK HOWARD BAILEY MEMORANDUM OPINION * BY v. Record No. 0266-99-4 JUDGE RUDOLPH BUMGARDNER, III APRIL 18, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER John E. Wetsel, Jr., Judge

Anthony G. Spencer (John W. Luxton; Morchower, Luxton & Whaley, on briefs), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

A jury convicted Patrick Howard Bailey of conspiring to

distribute cocaine and transporting more than one ounce of

cocaine into the Commonwealth. He contends on appeal that (1)

the evidence was insufficient to support the conspiracy

convictions and (2) his constitutional rights were violated

because he was convicted with evidence that contradicted the

Commonwealth's representations in the extradition proceedings.

Finding no error, we affirm the defendant's convictions.

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted). In so doing, we discard the defendant's

evidence that conflicts with that of the Commonwealth. See

Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165

(1988). The trial court's ruling will not be disturbed on

appeal unless plainly wrong or unsupported by the evidence. See

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

The defendant lived in New York where he met Nicole

Williams in 1993 or 1994. Several months later, she agreed to

"make a run" to Virginia for him. Williams made five trips to

Virginia for the defendant between Labor Day weekend 1994 and

February 3, 1995, when she was arrested. The defendant called

Williams to arrange a trip shortly before he wanted her to

leave. He advised her to dress conservatively and, on each

occasion, brought a suitcase already packed with drugs to her

house. The defendant took Williams to the bus station,

purchased her ticket, and gave her money for expenses. One

time, he gave her money for a cab to the station and for the

ticket. Williams usually took the 2:00 a.m. bus to Winchester,

but she always traveled alone.

When Williams arrived in Winchester, either the defendant,

George Curry, or Breton "Woody" Alexander met her and took her

to Alexander's house. Each time, Alexander took the suitcase

- 2 - into another room, and sometimes the defendant or Curry

accompanied him. When Alexander came out, he carried wrappings

of aluminum foil, duct tape, and plastic wrap. Once Williams

saw Alexander holding a sandwich bag of marijuana. Williams

always left the suitcase and returned to New York the same day

she had arrived. When she got back, she paged the defendant and

he paid her from $300 to $1,000 per trip.

On her fifth trip, February 3, 1995, drug task force

officers approached Williams when she arrived at the Winchester

bus station. She consented to a search of the suitcase, and the

officers found five packages wrapped in duct tape with dryer

sheets exposed to conceal the odor. The wrapping was consistent

with transportation of illegal drugs. The two brick-shaped

packages contained approximately two pounds of marijuana, and

the three egg-shaped packages contained eleven ounces of

cocaine. The approximate street value of the marijuana was

$6,000 and of the cocaine was $30,800.

Williams denied owning the bag. She said a black Jamaican

man in New York City named Patrick had given it to her to bring

to Winchester. She had his pager number and expected to meet a

man named George in Winchester. At the officers' request,

Williams paged Patrick. Ten minutes later, George Curry

telephoned Williams and agreed to meet her at a Food Lion store.

When Curry arrived, the police arrested Williams and him.

- 3 - Nicole Williams pled guilty to possession with intent to

distribute cocaine and marijuana.

Curry testified that the defendant asked him to pick up

Williams on several occasions, but he denied knowing Williams

was transporting drugs. He said that if he had known she was

involved with drugs, he would not have picked her up. He told

the defendant that he wanted nothing to do with cocaine when the

defendant had asked him if he knew anyone who could "get rid of

some coke." He did admit to being present once when Alexander

opened the suitcase Williams had delivered and removed marijuana

from the bag. Another time, after Williams arrived, he saw

Alexander with cocaine. He also saw the defendant with cocaine.

Curry admitted that the defendant paid him $100 to hold a

package of what Curry believed to be marijuana. Curry was aware

that the defendant had other women "bringing stuff down" to

Virginia, and admitted he had picked up at least one other woman

from the bus station for the defendant. Curry pled guilty to

conspiracy to distribute cocaine and marijuana.

During a search of Curry's residence, the police recovered

telephone bills with calls to the defendant's telephone number

in Brooklyn and a photograph of the defendant and Alexander in

front of a Christmas tree. During a search of Alexander's

trailer, the police recovered a marijuana cigarette. At

Alexander's trailer, the police also found the defendant's

automobile insurance receipt dated July 25, 1994. A page of a

- 4 - telephone bill dated February 16, 1994 showed calls placed to

two New York telephone numbers registered to the defendant. A

sheet of paper attached to the phone bill listed Karen Bailey,

the defendant's wife, with a Brooklyn address, telephone number

718-284-1076, and the name "Patrick" crossed out and "Karen"

written over it. The police followed footprints from

Alexander's trailer and found a jar containing approximately

four ounces of marijuana under a mattress in the nearby woods.

Under the trailer, they found wrappings similar to those found

on February 3, 1995.

The defendant testified and denied ever asking Williams to

make a trip to Virginia for him, ever giving her a suitcase to

deliver to Winchester, ever giving her his pager number, or ever

paying her for making a trip. He denied asking Curry or

Alexander to pick Williams up, being in Winchester on Labor Day

weekend in 1994, or being involved with drugs. While he

conceded that the evidence would establish his intent to

transport and distribute cocaine, he argues the evidence is

insufficient to support a conviction of conspiracy.

Conspiracy is "'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)

(citation omitted). Proof of the existence of an agreement is

an essential element to establish the crime of conspiracy. See

Fortune v. Commonwealth, 12 Va. App. 643, 647, 406 S.E.2d 47, 48

- 5 - (1991). However, proof of an explicit, formal agreement is not

required. The elements of conspiracy may, and frequently must,

be proved by circumstantial evidence. See Wright, 224 Va. at

505, 297 S.E.2d at 713 (can infer that the defendants intended

to commit robbery rather than another crime); Stevens v.

Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992)

(evidence sufficient to prove conspiracy to commit murder);

Zuniga v. Commonwealth, 7 Va. App. 523, 531, 375 S.E.2d 381, 386

(1988) (defendant only required to know "the essential nature of

the scheme"); Stultz v. Commonwealth, 6 Va. App. 439, 443, 369

S.E.2d 215, 217 (1988) (evidence permits reasonable inference

that parties agreed to further prostitution).

"'The existence of an unlawful and inherently covert

agreement can be inferred from the overt conduct of the

parties.'" Floyd v. Commonwealth, 219 Va. 575, 581, 249 S.E.2d

171, 174 (1978) (citation omitted). See Barber v. Commonwealth,

5 Va. App. 172, 177, 360 S.E.2d 888, 890 (1987) (sequence of

events supports inference that defendant and others acted in

concert and planned to transport marijuana). "'"A common

purpose and plan may be inferred from a development and

collocation of circumstances."'" Amato v. Commonwealth, 3 Va.

App. 544, 552, 352 S.E.2d 4, 9 (1987) (plan need not be

completed to support conspiracy conviction) (citations omitted).

Whether the defendant's "'conduct constituted knowing

participation in the scheme or merely inadvertence . . . was for

- 6 - the jury to decide.'" Floyd, 219 Va. at 581, 275 S.E.2d at 174

(quoting United States v. Harris, 433 F.2d 333, 335 (4th Cir.

1970)). Where, as here, it has been shown that the conspirators

"'by their acts pursued the same object, one performing one part

and the other performing another part so as to complete it

. . ., the jury will be justified in concluding that they were

engaged in a conspiracy to effect that object.'" Amato, 3 Va.

App. at 552, 352 S.E.2d at 9 (quoting 16 Am. Jur. 2d Conspiracy

§ 42 (1979)).

The fact that there was no evidence of an explicit

agreement to transport and distribute cocaine between the

defendant and Williams does not preclude his conviction. The

evidence permitted the jury to infer that an agreement existed.

It revealed a planned and organized effort to transport drugs

into Virginia over the course of several months. The defendant

was intimately involved in the conspiracy. He knew Alexander

and Curry and introduced them to Williams. All three had the

defendant's telephone or pager number. The defendant arranged

and paid for Williams's trips. He packaged the drugs, delivered

them to his runner, and arranged for someone to meet her when

she arrived in Winchester. See United States v. Burgos, 94 F.3d

849, 868-70 (4th Cir. 1996), cert. denied, 519 U.S. 1151 (1997)

(factors which further circumstantial evidence that defendant

involved in conspiracy include being acquainted with other

conspirators, exchanging telephone numbers, and purchasing their

- 7 - train tickets). The record, considered in the light most

favorable to the Commonwealth, clearly supports the inference

that the defendant had guilty knowledge. See Amato, 3 Va. App.

at 552, 352 S.E.2d at 9.

Williams knew she was transporting drugs of the defendant,

and when the police arrested her, they found cocaine wrapped in

foil and saran wrap. The wrappings were similar to those

Williams saw when Alexander unpacked previous deliveries. She

pled guilty to distribution of both marijuana and cocaine. The

evidence also permits the inference that Curry knew both cocaine

and marijuana were involved. Curry saw Alexander with cocaine

after a delivery by Williams, and the defendant once asked him

who could get rid of some coke for him. Curry pled guilty to

both cocaine and marijuana offenses. The evidence shows a

relationship between the group's connection to marijuana and

cocaine so close that proof of conspiracy to distribute one

tends to establish a conspiracy to distribute the other. See

Morton v. Commonwealth, 227 Va. 216, 223, 315 S.E.2d 224, 228,

cert. denied, 469 U.S. 862 (1984).

The fact finder was entitled to disbelieve Williams and

Curry's testimony that that they were unaware cocaine was

involved. The fact finder, who determines the credibility of

the witnesses and the weight accorded their testimony, has wide

discretion to accept or reject the testimony in whole or in

part. See Bradley v. Commonwealth, 196 Va. 1126, 1136, 86

- 8 - S.E.2d 828, 834 (1955); Bridgeman v. Commonwealth, 3 Va. App.

523, 528, 351 S.E.2d 598, 601 (1986). The fact finder is also

entitled to disbelieve the self-serving testimony of the accused

and to conclude that he is lying to conceal his guilt. See

Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98

(1987) (en banc).

The repeated transportation arrangement is "consistent with

'[t]he step from knowledge to intent and agreement.'" Zuniga, 7

Va. App. at 523, 375 S.E.2d at 386 (citation omitted). The

actions of those involved "were consistent with illegality and

inconsistent with legality." Wright, 224 Va. at 505, 297 S.E.2d

at 713. The law is clear; circumstantial evidence is sufficient

to establish a conspiracy. Considering the entire record, the

evidence supports a reasonable inference that there was a

conspiracy to transport and distribute cocaine into Virginia.

Finally, the defendant asserts "[t]he trial court erred in

convicting Mr. Bailey based on alleged conduct in contradiction

of the Commonwealth's representations in the extradition

proceedings." The nature of this contention is not clear, but

to the extent it is an assertion that his rights to due process

were violated, such a claim is barred. The defendant did not

present that argument to the trial court. See Rule 5A:18. To

the extent it constitutes a collateral attack on the extradition

proceeding, this appeal is not the proper means of challenging

extradition proceedings. See Code § 19.2-95. To the extent it

- 9 - is a challenge that the evidence presented at trial conflicted

with that presented at the extradition proceedings, we find no

error.

For the foregoing reasons, we affirm the defendant's

convictions.

Affirmed.

- 10 -