COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
MARION KENNETH WRIGHT
OPINION BY
v. Record No. 1078-99-4 JUDGE ROBERT P. FRANK
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
Jeffrey T. Barbour, Senior Assistant Public
Defender, for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Marion Kenneth Wright (appellant) appeals his conviction of
distribution of cocaine in violation of Code § 18.2-248. On
appeal, appellant contends the trial court erred in denying his
motion to compel the disclosure of the police surveillance
location. We disagree and affirm the conviction.
I. BACKGROUND
Investigator Diane Gittins of the Alexandria Police
Department was "spotting" in a concealed location in the 500
block of Four Mile Road in the City of Alexandria. From the
"spotting" position, which was located approximately 100
horizontal feet and 50 to 150 vertical feet away, Gittins
observed a female, later identified as Brenda Rucker, speaking
with appellant.
Gittins saw Rucker reach into her pocket and fold her hand
into a fist. Gittins testified that she saw Rucker place her
fist over appellant's left hand and drop into his hand an "off
white, rock-like object wrapped tightly in plastic." Appellant
passed the rock-like object from his left hand to his right hand
and then to the left hand of another individual, Mr. Argondona.
Argondona placed the object in his pocket.
As appellant and Argondona crossed the street, appellant
aggressively tried to get into Argondona's left pocket.
Argondona backed up with his left hand over his pocket to
prevent appellant from reaching inside the pocket.
Rucker testified that she approached appellant and asked
"if he was looking." Rucker stated that appellant responded,
"Yes." Appellant asked for a "20." Rucker gave appellant a
"dime." Rucker said appellant then passed the rock to
Argondona. Appellant gave Rucker $10, which he received from
Argondona. As Rucker walked away, she heard appellant tell
Argondona, "Give me my piece."
Following the transaction, Gittins radioed for the arrest
of the individuals, describing the subjects. The arresting
officers arrived, found appellant and Argondona, and arrested
them. One of the officers searched Argondona and found a rock
of crack cocaine in his pocket. The rock of cocaine found on
- 2 -
Argondona was consistent with the appearance of the rock-like
object Rucker sold to appellant.
Gittins did not see an exchange of money, and no money or
drugs were found on appellant. The transfer took place within
ten to fifteen feet of a streetlight and within a few feet of a
dumpster. The weather was clear.
Gittins used a spotting scope to observe the transaction.
She testified that nothing obstructed her vision. Gittins
testified she had spent over 4,000 hours spotting such
transactions.
Appellant submitted two photographs of the location of the
transaction. Appellant's counsel conceded that the two
photographs did not show where the sale actually occurred.
II. ANALYSIS
Appellant contends the trial court erred in denying his
motion to compel Gittins to disclose her surveillance location.
He asserts that the information was material to his defense. We
disagree and affirm the conviction.
We review the trial court's ruling for an abuse of
discretion. See Hollins v. Commonwealth, 19 Va. App. 223, 228,
450 S.E.2d 397, 400 (1994).
In Hollins, we said:
To compel the disclosure of the exact
location of a surveillance post, appellant
must "show that he needs the evidence to
conduct his defense and that there are no
other adequate alternative means of getting
- 3 -
at the same point." Only then must the
court balance the public interest in
effective law enforcement and citizens'
safety against the defendant's
constitutional right to confront government
witnesses. If the court finds that a
defendant's rights may be adversely
affected, the court may review the location
in camera and determine if revelation is
necessary. If a court requires disclosure,
the Commonwealth may still assert its
privilege but must forego
prosecution. . . .
In deciding whether to compel
disclosure, courts have considered the
quality of any corroborating evidence, and
the effectiveness of the cross-examination
of the surveillance witness. Assuring
adequate cross-examination of government
witnesses while preserving the privilege
varies with the facts of each case.
However, other courts have weighed the
following facts before requiring disclosure:
(1) the use of any vision-enhancing device,
(2) the officer's distance from the
defendant, (3) the elevation of the post,
(4) the existence of any special weather
conditions, (5) the weaknesses in the
officer's own vision or observation skills,
(6) the adequacy of lighting, (7) the angle
of sight, (8) the existence of any
obstructions, and (9) any other relevant
facts.
Id. at 227-28, 450 S.E.2d at 399-400 (citations omitted).
Appellant argues that Davis v. Commonwealth, 25 Va. App.
588, 491 S.E.2d 288 (1997), controls. In Davis, we required
disclosure of the surveillance position because the defendant
had independent evidence that the spotter's view was obstructed
and that the spotter could not identify the seller. See id. at
593-94, 491 S.E.2d at 290-91.
- 4 -
Davis does not control this case. Appellant did not
establish a required need for disclosure of the location of the
observation post. Appellant failed to show any possible
obstruction of the area or to present any independent evidence
of obstruction. We, therefore, are not required to balance the
competing interests.
Further, the record contains significant evidence to
corroborate Gittins' testimony that her view was not obstructed
and that the transaction occurred as she reported it. Rucker,
who was involved in the sale, corroborated Gittins' testimony of
the details of the sale. The description of the participants
was corroborated by the arresting officers, who arrested
appellant in the same area, within minutes of Gittins'
observations. Further, appellant did not cross-examine Gittins
to great length regarding her line of sight.
We conclude that the trial court did not abuse its
discretion in denying appellant's motion to compel disclosure of
the location of the observation post.
For these reasons, we affirm the trial court's judgment.
Affirmed.
- 5 -