COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
DWAYNE MERCELLUS DURANT
OPINION BY
v. Record No. 1836-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 15, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Mark S. Thrash for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Dwayne Mercellus Durant (appellant) was convicted in a jury
trial of distribution of cocaine, in violation of Code
§ 18.2-248. He contends the trial court (1) abused its
discretion by refusing his request to waive his presence at
trial; (2) erred by allowing inadmissible hearsay during the
testimony of Detective Hanula and (3) abused its discretion by
excluding the testimony of his expert witness. For the
following reasons, we affirm appellant's conviction.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on February 17,
1998, Officer Maria Alvarez (Alvarez), while working undercover
in vice and narcotics, came into contact with a person she knew
only as "Fats." "Fats" entered her vehicle, sat in the
passenger seat and negotiated a sale of cocaine. They agreed on
a purchase of "four for three." In her presence, "Fats" removed
a clear plastic bag from his right jacket pocket and handed her
thirty-seven ten dollar baggies of cocaine. She gave him $300,
which she watched him place in his jacket pocket. He offered
her his pager number and she wrote it down.
Alvarez's control officer, Detective Thomas Hanula
(Hanula), testified he was monitoring a "wire" that recorded the
meeting between "Fats" and Alvarez on February 17, 1998. No
arrest was made at the time to protect the identity of Alvarez.
On March 18, 1998, Hanula paged "Fats" using the telephone
number given to Alvarez during the meeting on February 17, 1998.
With Hanula listening, the informant spoke with a person who
called in response to the page. The informant stated that he
wanted to purchase a quarter of an ounce of crack cocaine and
have it delivered to a hotel in Arlington. The person stated,
"I can be there in about a half an hour. I'm in the District
right now." Hanula gave his perimeter units a physical
description of "Fats" provided by Alvarez as well as a
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description of the vehicle "Fats" used during the meeting of
February 17, 1998. A vehicle and driver fitting the description
provided by Alvarez was stopped. The driver was arrested.
Alvarez was driven by the location of the traffic stop and
positively identified the driver as "Fats." It is at that point
that the police determined "Fats" to be the appellant, Dwayne
Mercellus Durant.
Prior to voir dire, appellant presented a "Written Waiver
of Presence at Trial." The Commonwealth objected to his
proposed absence because identity was an issue to be determined.
After argument from appellant's counsel and the Commonwealth's
attorney, the trial court denied the motion.
At trial, appellant attempted to qualify James E. Bradley,
Jr., as an expert in "how to conduct a proper undercover
operation." The trial court refused to allow the expert to
testify, stating that an undercover drug operation is not a
matter outside the realm of common experience to require the
testimony of an expert. The appellant made no proffer of the
expected testimony.
Appellant presented two alibi witnesses who testified that
appellant was out of state on February 17, 1998. Both witnesses
had felony records. At the close of the testimony, appellant's
trial counsel had appellant "present" himself to the jury. He
stood and walked in front of the jury and smiled at them,
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apparently for the purpose of demonstrating the condition of
appellant's teeth as an identifying characteristic.
II. WAIVER OF RIGHT TO BE PRESENT AT TRIAL
Appellant first contends the trial court erred by refusing
to allow him to "waive" his Sixth Amendment right to be present
at trial. He argues that the right to be present includes the
converse of that right, his right to be absent. We disagree and
hold that appellant has no constitutional right to be absent at
trial.
In Singer v. United States, 380 U.S. 24 (1965), the United
States Supreme Court analyzed the issue "of converse rights" in
the context of the waiver of the right to a trial by jury. In
Singer, the defendant argued that his right to waive a jury
could not be limited by the requirement that the prosecutor and
court also agree to the waiver. In rejecting this claim, the
Court held
[t]he ability to waive a constitutional
right does not ordinarily carry with it the
right to insist upon the opposite of that
right. For example, although a defendant
can, under some circumstances, waive his
constitutional right to a public trial, he
has no absolute right to compel a private
trial; although he can waive his right to be
tried in the State and district where the
crime was committed, he cannot in all cases
compel transfer of the case to another
district; and although he can waive his
right to be confronted by the witnesses
against him, it has never been seriously
suggested that he can thereby compel the
Government to try the case by stipulation.
Moreover, it has long been accepted that the
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waiver of constitutionals rights can be
subjected to reasonable procedural
regulations . . . .
* * * * * * *
The Constitution recognizes an
adversary system as the proper method of
determining guilt, and the Government, as a
litigant, has a legitimate interest in
seeing that cases in which it believes a
conviction is warranted are tried before the
tribunal which the Constitution regards as
most likely to produce a fair result.
Id. at 34-36 (internal citations omitted).
In accord with this reasoning, several of our sister states
have addressed the issue raised in the instant case. Iowa v.
Randle, 603 N.W.2d 91 (Iowa 1999) rejected the argument that a
defendant has a constitutional right to be absent from his
trial.
"The defendant has a duty as well as a
right to be present at his trial. He may
not absent himself without the permission of
the court. It is even said that a statute
authorizing trial of misdemeanor cases in
the absence of the accused does not mean
that one charged with a misdemeanor has a
right to be absent at trial and to appear
only by counsel.
In a jurisdiction which considers
defendant's presence nonwaivable and
essential to the validity of the
proceedings, his presence at every stage of
the trial may be compelled. But even where
his right to be present can be waived, this
does not amount to a right to be absent,
since the prosecution has a right to require
his presence for purposes of identification
by its witnesses and of receiving punishment
if found guilty."
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Id. at 93 (quoting State v. Davis, 259 N.W.2d 812, 814 (Iowa
1977)). See also Whitt v. State, 733 So.2d 463, 474 (Ala. Crim.
App. 1998) ("Although it has sometimes been argued that a
defendant should have a right to be absent from his trial if he
so chooses, the law generally is to the contrary. The ability
to waive a constitutional right does not ordinarily carry with
it the right to insist upon the opposite of that right and thus
it does not follow from the fact that the right of presence can
be waived or forfeited that a defendant can insist upon a right
not to attend his trial."); State v. Mumford, 666 P.2d 1074,
1075-76 (Ariz. Ct. App. 1982) (no abuse of discretion to require
defendant to remain in the courtroom for identification
purposes; although he may waive his right to be present in
court, he must obtain the permission of the trial judge to be
absent); United States v. Moore, 466 F.2d 547, 548 (3d Cir.
1972) (Federal Rule 43, which is a codification of existing law
that a felony defendant be present, does not vest a "right of
absence" in a defendant); United States v. Fitzpatrick, 437 F.2d
19, 27 (2d Cir. 1970) (no right of a defendant to absent himself
from the courtroom when identification is an issue). 1
1
A defendant may, by affirmative conduct, waive or forfeit
his or her right to appear. See Taylor v. United States, 414
U.S. 17 (1973) (failure to return after a lunch break); Quintana
v. Commonwealth, 224 Va. 127, 295 S.E.2d 643 (1982)
(obstreperous conduct in the courtroom); Cruz v. Commonwealth,
24 Va. App. 454, 482 S.E.2d 880 (1997) (oversleeping because he
drank too much the night before); Head v. Commonwealth, 3 Va.
App. 163, 348 S.E.2d 423 (1986) (failure to appear for trial
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Based on the foregoing, we hold the trial judge correctly
denied appellant's motion to absent himself from trial.
III. HEARSAY
Appellant next argues the trial court erred in allowing
Hanula to testify concerning the circumstances surrounding
appellant's arrest. He contends that Hanula's testimony was
hearsay and should have been excluded. Because we find that his
statements were not hearsay, we find no error.
"Hearsay is a statement, other than one made by the
declarant while testifying at trial, which is offered to prove
the truth of the matter asserted." Clark v. Commonwealth, 14
Va. App. 1068, 1070, 421 S.E.2d 28, 30 (1992). "Unless it is
offered to show its truth, an out-of-court statement is not
subject to the rule against hearsay and is admissible if
relevant." Church v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d
823, 825 (1985). "The hearsay rule does not operate to exclude
the evidence or a statement, request, or message offered for the
mere purpose of explaining or throwing light on the conduct of
the person to whom it was made." Fuller v. Commonwealth, 201
Va. 724, 729, 113 S.E.2d 667, 670 (1960). See also Swain v.
Commonwealth, 28 Va. App. 555, 507 S.E.2d 116 (1998).
after having knowledge of the court date and time). However,
the issue of an implied waiver by conduct is not the context of
the instant case.
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In the instant case, Hanula testified to the substance of a
telephone conversation he overheard between his confidential
informant and the person who responded to a page at the number
given by "Fats" at the February 17, 1998 transaction. The
testimony was not offered to prove that a cocaine buy was to
occur, but rather was offered to explain the ruse used to draw
the person on the telephone to the location of the arrest.
Thus, we hold that the trial judge did not err in admitting
Hanula's testimony.
IV. EXPERT TESTIMONY
Lastly, appellant contends the court erred in refusing to
allow his expert witness to testify regarding the validity of an
undercover police narcotics operation. The Commonwealth argues
that appellant is barred from raising this issue because he
failed to proffer the expected testimony.
It is well settled that when evidence is excluded, the
proponent must proffer for the record the nature of the expected
evidence in order to preserve the ruling for appeal. Without
such a proffer, the appellate court has no basis to determine
whether the aggrieved party has been prejudiced by the ruling.
See Whitaker v. Commonwealth, 217 Va. 966, 234 S.E.2d 79 (1977);
Craig v. Commonwealth, 14 Va. App. 842, 419 S.E.2d 429 (1992).
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We find that appellant's counsel's failure to proffer the
expected testimony bars our consideration of this issue. 2
For the foregoing reasons, we affirm appellant's
conviction.
Affirmed.
2
The trial judge also ruled that because the proposed
expert had been excluded from the courtroom, he had no proper
foundation for any expert testimony. Because we affirm on the
failure to proffer issue, we do not address this contention.
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