Al Baace Abdulla Al-Ghani v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia

AL BAACE ABDULLA AL-GHANI
MEMORANDUM OPINION * BY
v. Record No. 0264-98-4 JUDGE NELSON T. OVERTON
MAY 18, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge

Jeffrey T. Barbour (Office of the Public
Defender, on brief), for appellant.

Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

In a bench trial, appellant was convicted of attempting to

possess cocaine, and was given a two year suspended sentence.

On appeal, appellant contends that the trial court erred: (1)

in refusing to sanction the Commonwealth for failing to preserve

the imitation cocaine sold to appellant by an undercover police

officer; (2) in finding the evidence sufficient to prove beyond

a reasonable doubt that appellant committed the charged offense;

(3) in rejecting appellant's entrapment defense; and (4) in

denying appellant's motion for a new trial based upon the trial

*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
judge's failure to recuse himself. Finding no error, we affirm

appellant's conviction.

The parties are fully conversant with the record in this

case. Because this memorandum opinion carries no precedental

value, no recitation of the facts is necessary.

I.

In Galbraith v. Commonwealth, 18 Va. App. 734, 739, 446

S.E.2d 633, 636-37 (1994), this Court stated that

[u]nless appellant can show bad faith on
the part of the prosecution, or that the
missing evidence would be exculpatory,
failure to preserve potentially relevant
evidence does not constitute a denial of due
process. Arizona v. Youngblood, 488 U.S.
51, 58 (1988). . . . "Determining the
intentions of the police in failing to
preserve evidence requires consideration of
the nature of the evidence. If it is clear
that, had the evidence been properly
preserved, it would have formed a basis for
exonerating the defendant, then absent a
showing to the contrary we must assume that
the police were not acting in good faith.
However, in Youngblood, the Supreme Court
held that the 'Due Process Clause requires a
different result when we deal with the
failure of the State to preserve evidentiary
material of which no more can be said than
that it could have been subjected to tests,
the results of which might have exonerated
the defendant.'"

(quoting Tickel v. Commonwealth, 11 Va. App. 558, 562-63, 400

S.E.2d 534, 537 (1991)).

In the present case, appellant has demonstrated no evidence

of bad faith on the part of the police. Posing as a street

level drug dealer, Officer Tony Sidnor sold appellant a piece of

-2-
white chocolate which was similar in texture, color, and size to

crack cocaine sold on the streets. The record shows that the

police may or may not have recovered the white chocolate after

appellant's arrest. Sidnor, who directed the operation, did not

tell the arresting officers what to do with the white substance.

Officer Sharma, a member of the arrest team, confirmed that he

received no instructions regarding the recovery of the

substance, and he was unaware of the disposition of the

substance. The record reflects that the substance was last seen

in the possession of appellant. These circumstances do not

indicate the existence of bad faith on the part of the police.

Moreover, appellant has not shown that if the white

chocolate had been preserved, it would have formed a basis for

exonerating him. At most, appellant can assert that the

substance was potentially exculpatory in that it may have

differed in appearance or texture from Sidnor's description of

the substance he sold to appellant. As discussed below,

however, the evidence was sufficient to support a conclusion

beyond a reasonable doubt that appellant intended to purchase

actual cocaine. Therefore, appellant suffered no violation of

his due process rights.

Appellant also contends that the failure to preserve the

evidence violated his rights under the Confrontation Clause of

the Sixth Amendment. Cases invoking violations of the

confrontation clause fall into two general categories: (1)

-3-
cases involving admissions of out-of-court statements; and (2)

cases involving restrictions on the scope of cross-examination.

See Delaware v. Fensterer, 474 U.S. 15, 18-19 (1985). This case

plainly does not fall into either category.

The Virginia Supreme Court has stated:

A defendant's rights under the confrontation
clause are trial rights which are designed
to prevent the improper restriction of
cross-examination. These rights "[do] not
include the power to require the pretrial
disclosure of any and all information that
might be useful in contradicting unfavorable
testimony." Pennsylvania v. Ritchie, 480
U.S. 39, 53 (1987). These rights are
"satisfied if defense counsel receives wide
latitude at trial to question witnesses."
Id.

Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124

(1996). Appellant was virtually unrestricted in his

cross-examination of Sidnor. We find no Sixth Amendment

violation.

Nor do we find merit in appellant's claim that Virginia's

discovery rules required the Commonwealth to preserve the

substance sold to appellant by Sidnor. Rule 3A:11(b)(1) permits

discovery by the accused of certain items "that are known by the

Commonwealth's attorney to be within the possession, custody or

control of the Commonwealth." The record does not indicate that

the imitation cocaine was actually recovered by the police from

appellant upon his arrest, or that it was in the Commonwealth's

possession, custody, or control.

-4-
 Appellant also contends that the Commonwealth violated Code

§ 18.2-253 and that the appropriate sanction for this violation

is the dismissal of the charge against him. Code § 18.2-253

provides that "[a]ll controlled substances, imitation controlled

substances, marijuana or paraphernalia the lawful possession of

which is not established or the title to which cannot be

ascertained, which have come into the custody of a peace officer

or have been seized in connection with violations of this

chapter," shall be disposed of in the manner described by the

statute. However, except in circumstances inapplicable to this

case, "[n]o such substance or paraphernalia used or to be used

in a criminal prosecution under this chapter shall be disposed

of as provided by this section until all rights of appeal have

been exhausted . . . ." Code § 18.2-253(B).

In United States v. Belcher, 762 F. Supp. 666 (W.D. Va.

1991), the Commonwealth destroyed alleged marijuana the

defendant was charged with having manufactured. The

Commonwealth had performed no testing on the substance prior to

destroying it. The Belcher court applied due process principles

and, finding a constitutional violation to exist, ruled that the

charge should be dismissed. Id. at 672-73.

As noted above, however, appellant suffered no due process

violation in the present case. "'While violations of state

procedural statutes are viewed with disfavor, . . . neither the

Virginia Supreme Court nor the legislature has adopted an

-5-
exclusionary rule for such violations . . . where no deprivation

of the defendant's constitutional rights occurred.'" West v.

Commonwealth, 16 Va. App. 679, 692, 432 S.E.2d 730, 738 (1993)

(citation omitted). "[A]bsent an express statutory provision

for suppression," the Virginia Supreme Court has "steadfastly

refused to extend [the exclusionary] rule to encompass evidence

seized pursuant to statutory violations . . . ." Janis v.

Commonwealth, 22 Va. App. 646, 651, 472 S.E.2d 649, 652, aff'd

on reh'g en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996).

Code § 18.2-253 does not provide that the Commonwealth's

failure to dispose of imitation controlled substances in the

manner prescribed should result in the suppression of evidence

or the imposition of other sanctions against the Commonwealth.

Therefore, the trial judge did not err in refusing to dismiss

the charge due to the Commonwealth's apparent failure to abide

by Code § 18.2-253.

II.

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

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

(citation omitted).

Where the defendant is charged with attempting to commit a

crime,

-6-
 the Commonwealth must prove the accused had
a specific intent to commit that crime.
Moreover, to convict an accused of
possession of a particular unlawful
substance, the Commonwealth must prove that
the accused was aware of the character of
the particular substance at issue. "'The
purchase of a noncontrolled substance that
the defendant subjectively believes to be a
controlled substance can constitute an
attempt to possess . . .' provided the
government 'proves the defendant's
subjective intent to purchase . . . actual
narcotics beyond a reasonable doubt.'"

Smith v. Commonwealth, 16 Va. App. 626, 627-28, 432 S.E.2d 1, 2

(1993) (citations omitted).

"Intent is a subjective state of mind, and proof of it is

ofttimes difficult. Frequently, it must be proved by

circumstantial evidence alone." Rodriguez v. Commonwealth, 18

Va. App. 277, 282, 443 S.E.2d 419, 423 (1994) (en banc), aff'd,

249 Va. 203, 454 S.E.2d 725 (1995). Circumstantial evidence may

establish the elements of a crime, provided it excludes every

reasonable hypothesis of innocence. See Tucker v. Commonwealth,

18 Va. App. 141, 143, 442 S.E.2d 419, 420 (1994). However, "the

Commonwealth need only exclude reasonable hypotheses of

innocence that flow from the evidence, not those that spring

from the imagination of the defendant." Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

Appellant's asserted hypothesis of innocence--that he

intended to purchase imitation cocaine from Sidnor--did not flow

from the evidence. Appellant agreed to purchase a two dollar

-7-
"piece," a street jargon reference to crack cocaine. He agreed

to the purchase before Sidnor showed him the substance. While

Sidnor and appellant discussed the sale, there was no indication

that the item proposed for sale was anything other than actual

cocaine.

Moreover, the circumstances surrounding the transaction

were consistent only with a sale of actual cocaine. The

packaging and appearance of the white chocolate was consistent

with real cocaine. The transaction took place surreptitiously,

after appellant and Sidnor agreed to the terms of the

transaction. A two dollar sale of cocaine, although rare, was

not unprecedented in Sidnor's experience. Considering the facts

and circumstances, the evidence was sufficient to prove beyond a

reasonable doubt that appellant possessed the intent to purchase

cocaine and that appellant committed the charged offense.

III.

"Entrapment is the conception and planning of an offense by

a police agent, and his or her procurement of its commission by

'one who would not have perpetrated it except for the trickery,

persuasion, or fraud' of the police." Howard v. Commonwealth,

17 Va. App. 288, 293, 437 S.E.2d 420, 424 (1993) (citation

omitted). "There is nothing improper in the use, by the police,

of decoys, undercover agents, and informers to invite the

exposure of willing criminals and to present an opportunity to

-8-
one willing to commit a crime." Stamper v. Commonwealth, 228

Va. 707, 715, 324 S.E.2d 682, 687 (1985).

While Sidnor provided the opportunity for appellant to

commit the crime, there was no evidence that appellant would not

have attempted to purchase cocaine except through the

persuasion, trickery, or fraud of the police. That Sidnor sold

the "cocaine" to appellant for only two dollars, which was all

the money appellant said he possessed, did not prove that the

crime was the result of entrapment. Indeed, appellant's "ready

commission of the criminal act amply demonstrate[d his] . . .

predisposition." Jacobson v. United States, 503 U.S. 540, 550

(1992). Therefore, the trial judge did not err in rejecting

appellant's entrapment defense.

IV.

Canon 3(C) of the Canons of Judicial Conduct provides:

C. Disqualification.
(a) A judge shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.
(1) To this end, he should abstain from
performing or taking part in any judicial
act in which his personal interests are
involved. He should not act in a
controversy where a near relative is a
party. He should not suffer his conduct to
justify the impression that any person can
improperly influence him or unduly enjoy his
favor, or that he is affected by his
kinship, rank, position or influence of any
party or other person.
(2) A judge should inform himself about his
personal and fiduciary financial interests,
and make a reasonable effort to inform
himself about the personal financial

-9-
 interests of his spouse and minor children
residing in his household.

In a similar case involving a former Commonwealth's

Attorney's refusal to recuse himself as trial judge, this Court

stated that

[t]he requirement of this Canon is clear;
a judge must diligently avoid not only
impropriety but a reasonable appearance of
impropriety as well. Exactly when a judge's
impartiality might reasonably be called into
question is a determination to be made by
that judge in the exercise of his or her
sound discretion. Judges are presumed to be
aware of the provisions of Canon 3, and
their decisions will not be disturbed absent
an abuse of that discretion.

Davis v. Commonwealth, 21 Va. App. 587, 591, 466 S.E.2d 741, 743

(1996) (citation omitted).

The record reveals that the trial judge, a former

Commonwealth's Attorney in Alexandria, gave full and fair

consideration to appellant's pretrial motion, as well as to the

objections raised by appellant during trial. The mere fact that

a trial judge makes rulings adverse to a defendant, standing

alone, is insufficient to establish bias requiring recusal. See

Stamper, 228 Va. at 714, 324 S.E.2d at 686; Stevens v.

Commonwealth, 8 Va. App. 117, 123, 379 S.E.2d 469, 473 (1989).

At the post-trial hearing, the judge indicated that he was aware

of no bias or prejudice he may have harbored against appellant,

and the record does not demonstrate otherwise. Therefore,

appellant has demonstrated no basis upon which to reverse the

-10-
trial judge's decision, exercised in his discretion, not to

recuse himself.

For the foregoing reasons, appellant's conviction is

affirmed.

Affirmed.

-11-