Patrick Howard Bailey v. Commonwealth of Virginia

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
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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.
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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
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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
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(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
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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
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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
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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
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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.
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