Durant v. Com.
Decision Date | 15 May 2001 |
Docket Number | Record No. 1836-00-4. |
Citation | 546 S.E.2d 216,35 Va. App. 459 |
Parties | Dwayne Mercellus DURANT v. COMMONWEALTH of Virginia. |
Court | Virginia Court of Appeals |
Mark S. Thrash, Arlington, for appellant.
Thomas M. McKenna, Assistant Attorney General, (Mark L. Earley, Attorney General, on brief), for appellee.
Present: FITZPATRICK, C.J., and ELDER, J., and OVERTON, Senior Judge.
Dwayne Mercellus Durant (appellant) was convicted in a jury trial of distribution of cocaine, in violation of Code § 18.248. 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.
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, Hanula gave his perimeter units a physical description of "Fats" provided by Alvarez as well as a 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, apparently for the purpose of demonstrating the condition of appellant's teeth as an identifying characteristic.
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.
Id. at 36, 85 S.Ct. at 790 (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.
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) () ; State v. Mumford, 136 Ariz. 465, 666 P.2d 1074, 1075-76 (Ct.App.1982) ( ); United States v. Moore, 466 F.2d 547, 548 (3d Cir.1972) (...
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