Dunaway v. Com., Record No. 1904-06-3.

Decision Date15 July 2008
Docket NumberRecord No. 1904-06-3.
Citation52 Va. App. 281,663 S.E.2d 117
PartiesJesse James DUNAWAY, s/k/a Jessie James Dunaway, Jr. v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Mark T. Williams, Danville, (Gregory T. Casker, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: ELDER, CLEMENTS and PETTY, JJ.

CLEMENTS, Judge.

Jesse James Dunaway (appellant) was convicted in a jury trial of being the principal, or a principal administrator, organizer, or leader, of a continuing criminal enterprise engaged, during a one-year period, in the distribution of at least five kilograms of a mixture containing cocaine base, in violation of Code § 18.2-248(H2), and sentenced to life imprisonment.1 On appeal, he contends the trial court erred in (1) amending the indictment to allege a greater amount of a mixture containing cocaine base, (2) finding the evidence sufficient, as a matter of law, to support his conviction, and (3) refusing to find that the imposition of a life sentence constituted cruel and unusual punishment. Finding no error, we affirm the trial court's judgment and appellant's conviction and sentence.

I. BACKGROUND

"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003). "In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988).

So viewed, the evidence established that, from December 5, 2003, to December 5, 2004, appellant maintained two locations in South Boston from which crack cocaine was sold.2 One was a house on College Street, which appellant used primarily for selling crack to users. Twenty to thirty people a day, or more, purchased crack at that location. The other location was appellant's residence on Carrington Street, which he used primarily for selling crack to dealers.

From December 2003 until he was arrested on December 2, 2004, George Thaxton spent "six or seven" hours every day at the College Street house selling crack with appellant. Thaxton's primary responsibilities were to make sure "[n]obody [got] out of hand" and to "mak[e] sure nothing happened" to appellant. The owner of a short-barreled pistol that fired two shotgun shells at once, Thaxton protected appellant by putting "people in their place ... physically and with a little artillery if need be."

According to Thaxton, appellant obtained the crack he needed by purchasing an eighth of a kilogram (125 grams) of crack "two to three times every single week" during the entire year at issue. Appellant paid approximately $3,500 in cash for each eighth of a kilogram of crack he purchased. To make a purchase, appellant provided "the money first" — a six-inch stack of twenty- and hundred-dollar bills — and received "a bag" containing an eighth of a kilogram of crack in return. Appellant then divided the crack into smaller amounts, which he sold on a retail basis to users and on a wholesale basis to dealers, or used to pay people for services they provided his crack-dealing business.

Thaxton sometimes got a quarter ounce (7.09 grams) of crack from appellant, which he then "cut ... up and sold." Thaxton, who had been selling crack for nine years, knew the substance appellant and he were selling was crack because the "people who [were] smoking it ... never said anything" to indicate it was not real. Sometimes, Thaxton "gave it to somebody to taste" to make sure it was real. One person he used as a taster was Marshall Scott.

Scott rented the College Street house and lived there. Appellant paid him in crack for letting him use the house to deal drugs, as well as for watching the front door when appellant was there and for chauffeuring appellant between the College Street and Carrington Street houses and "to the store." Scott also got crack from appellant for cleaning and cooking at the College Street house.

From December 2003 until she was incarcerated on September 11, 2004, Shirley Majors helped Scott watch the front door at the College Street house when appellant was conducting business there. According to Majors, appellant sold crack at the house every day, "[s]tarting from lunch up to late at night." Scott and Majors stayed in the front of the College Street house and let customers they knew in the door. When they did not know the person at the door, Majors or Scott would notify appellant, who waited in the back of the house, before they let the person in. Appellant gave Majors crack for watching the door. Appellant also gave Majors crack in exchange for cleaning the Carrington Street house. Majors, who had been using crack since 1996 and knew how it made her feel, smoked crack at the house all day, every day. According to her, all the crack she got and smoked at the house was real crack.

In addition to employing the services of Thaxton, Scott, and Majors, appellant gave crack to Pookie Torrian and Wayne Torrian in exchange for their doing maintenance and yard work at the College Street house. Appellant also gave crack to Wayne Torrian for cleaning the Carrington Street house and paid William Michael White two grams of crack to do electrical work at that house in December 2003.

From December 2003 until he was incarcerated on February 16, 2004, White also purchased two to six grams of crack a day, four or five days a week from appellant. He smoked half of it himself and sold the rest to his three dozen or so customers. A long-time crack user who knew how crack made him feel when he smoked it, White always got "high" from the crack he bought from appellant. Although he sometimes went to appellant's house on Carrington Street, White was at the College Street house "most of the time."

From December 2003 to December 2004, Mervin Traynham also purchased crack from appellant at both the College Street and Carrington Street houses. He bought the crack in ounces and "cut it down" into smaller amounts, "[a]nywhere from grams to half ounces," which he sold to "smokers and small-time dealers." Paying $700 to $1,000 an ounce, he bought at least eight ounces (226.8 grams) of crack each month from appellant throughout the entire year. According to Traynham, appellant's business arrangement at the College Street house was "prime" and "on point": "[Y]ou had people watching to see who was coming, who was going. You had somebody at the door.... [E]verything was together." There was also some "[s]hooting dice" and "a little tricking" going on there. In contrast, the Carrington Street house was "more laid back" because there were only "three or four people" there and they were "all dealers": "You come, get what you want, and you get out, ... simple as that." Traynham would call appellant and tell him what he needed, and it would be there ready for him to pick up when he arrived at the designated house. A long-time crack dealer and experienced crack "cook," Traynham knew the crack he purchased from appellant was real because he not only used a "personal tester" to verify the authenticity of the crack he purchased, he also confirmed its validity visually and by "tast[ing] it with [his] tongue," a method that had never failed him — "not once." He tested "every batch" he purchased because he did not "want to sell somebody something [that was] not real."

From December 2003 until he was incarcerated on July 16, 2004, Jeremy Hutcherson purchased a quarter of an ounce (7.09 grams) to a half of an ounce (14.18 grams) of crack from appellant approximately forty-five times. He called appellant on the phone to set up the purchases and paid $250 for each quarter of an ounce and $350 for each half of an ounce. Hutcherson then divided the crack he bought from appellant into smaller amounts, which he sold to his customers. Hutcherson, who had been dealing crack for more than ten years, could identify crack by its appearance and smell. He also sometimes confirmed the substance was crack by using a taster or by watching his customers smoke it. On at least one occasion, Hutcherson saw appellant get crack out of a dresser drawer in the Carrington Street house that contained "a large amount" of crack.

During that time, appellant also recruited experienced, former crack dealers to deal for him. For instance, when Antonio Singleton, who had not dealt drugs for two years, lost his job in December 2003, appellant helped him "get back into [dealing drugs] again." From that point on, Singleton purchased crack exclusively from appellant until Singleton's arrest on September 10, 2004. When Singleton needed more crack, he called appellant and told him what he needed, and it would be waiting for him at the Carrington Street house when he arrived. When appellant was unable to immediately provide the crack Singleton needed, Singleton waited until appellant could fill his order. If Singleton did not have enough money to cover a purchase, appellant sold it to him on credit.

In December 2003, Singleton distributed five to six grams of cocaine a day. In January and February 2004, he distributed two to three "eight balls" (7.09 to 10.63 grams) a day, four days a week. He paid appellant $140 for each "eight ball." From March through May, he distributed approximately one ounce (28.35 grams) of crack a week. From June until he was arrested in September, he distributed two ounces (56.70 grams) of crack a week. Singleton paid appellant $900 "every time [he] bought an ounce" of crack. He then "cut it up into twenty pieces," which he sold for a total of $2,200. Eventually, he had twenty-five to thirty-five...

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