Hill v. Com.

• Decision Date: 04 April 1989
• Docket Number: No. 0932-86-2,0932-86-2
• Parties: Douglas Wayne HILL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 134

379 S.E.2d 134

8 Va.App. 60

Douglas Wayne HILL v. COMMONWEALTH of Virginia.

Record No. 0932-86-2.

Court of Appeals of Virginia.

April 4, 1989.

Claire G. Cardwell ( N. Kendall Newsom, Glen Allen, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BAKER, BARROW, BENTON, COLE, COLEMAN, DUFF, HODGES, KEENAN and MOON, JJ.

ON HEARING EN BANC

COLE, Judge.

This case was heard en banc pursuant to Code § 17-116.02(D). The appellant, Douglas Wayne Hill, contends that his conviction for distribution of cocaine in violation of Code § 18.2-248 should be overturned because (1) the evidence was insufficient to support the conviction; (2) the trial court erred in refusing to consider the appellant's motion to set aside the verdict on the basis of ineffective assistance of counsel; and (3) he was denied his right to effective assistance of counsel. For the reasons that follow, we affirm the conviction.

In a jury trial, Hill was convicted, sentenced to forty years in the penitentiary and fined $25,000. Twenty-five years of the penitentiary sentence and $15,000 of the fine were suspended. Hill retained new counsel and filed motions to set aside the verdict based on newly discovered evidence and ineffective assistance of counsel. The trial court barred Hill's new counsel from presenting additional evidence on the allegation of ineffective counsel and denied the motion to set aside the verdict on that ground. Hill's counsel then presented evidence in support of his motion to set aside the verdict on the basis of newly discovered evidence. The trial court denied the motion, finding that the evidence presented did not qualify as "newly discovered."

I.

Hill contends that the trial judge erred in qualifying Robert Kreisheimer, who purchased the cocaine from Hill, as an expert witness in identifying cocaine. The cocaine was not produced at trial and no chemical analysis of the substance was admitted in evidence. Proof that the substance was cocaine was provided by Kreisheimer's testimony, the admissions of Hill, and other circumstantial evidence. Hill argues that without Kreisheimer's testimony, the evidence was insufficient to prove that the substance distributed was cocaine; therefore, he argues that the evidence was insufficient to prove his guilt beyond a reasonable doubt. We disagree.

The nature of the illegal substance transferred need not be proved by direct evidence but can be demonstrated by circumstantial evidence. United States v. Zielie, 734 F.2d 1447, 1456 (11th Cir.1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985); United States v. Gregorio, 497 F.2d 1253, 1263 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). The types of circumstantial evidence that may be considered include the following:

[E]vidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that the transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.

United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.1976); see also United States v. Scott, 725 F.2d 43, 45-46 (4th Cir.1984); Anderson v. Commonwealth, 215 Va. 21, 25-26, 205 S.E.2d 393, 396 (1974).

Users and addicts, if they have gained a familiarity or experience with a drug, may identify it. Numerous courts have permitted lay purchasers of drugs to testify as to the identification of drugs after previous use has been demonstrated. See, e.g., People v. Winston, 46 Cal.2d 151, 155-56, 293 P.2d 40, 43 (1956); Pettit v. State, 258 Ind. 409, 281 N.E.2d 807 (1972); Miller v. Commonwealth, 512 S.W.2d 941, 943 (Ky.1974), cert. denied, 420 U.S. 935, 95 S.Ct. 1142, 43 L.Ed.2d 411 (1975); Edwards v. Commonwealth, 489 S.W.2d 23, 25 (Ky.1972); People v. Boyd, 65 Mich.App. 11, 236 N.W.2d 744, 746 (1975); State v. Neal, 624 S.W.2d 182, 183-84 (Mo.App.1981); State v. Pipkin, 101 N.J.Super. 598, 601, 245 A.2d 72, 74-75, cert. denied, 52 N.J. 484, 246 A.2d 446 (1968); State v. Johnson, 54 Wis.2d 561, 564-66, 196 N.W.2d 717, 719 (1972). The same rule is followed in the federal courts. United States v. Sweeney, 688 F.2d 1131, 1145 (7th Cir.1982); United States v. Atkins, 473 F.2d 308, 313 (8th Cir.), cert. denied, 412 U.S. 931, 93 S.Ct. 2751, 37 L.Ed.2d 160 (1973).

Abundant circumstantial evidence exists in the record from which the jury validly could have inferred that cocaine was the substance involved in the transaction between Hill and Kreisheimer. Kreisheimer testified that he had used cocaine approximately five hundred times and that he had been a cocaine dealer for several years. He testified that the substance he purchased from Hill looked like cocaine, affected him in the same manner in which cocaine affected him, and in fact was cocaine. The parties to the transaction referred to the substance as cocaine. The transaction was effected with secrecy, as evidenced by Kreisheimer's testimony that Hill got the cocaine out of a lock box hidden inside his car trunk. Kreisheimer further testified that he owed Hill a large sum of money for the cocaine and that after Hill pressured him for the money, he told his parents that he needed to repay money owed for a cocaine transaction. It was within the jury's province to accept or reject Kreisheimer's testimony that the substance he bought from Hill was cocaine. "The jury has a right to weigh the testimony of all the witnesses, experts and otherwise." Martin v. Penn, 204 Va. 822, 826, 134 S.E.2d 305, 307 (1964) (quoting Webb v. Chesapeake & Ohio Ry. Co., 105 W.Va. 555, 562, 144 S.E. 100, 103 (1928)).

Hill further argues that even if Kreisheimer's testimony is admissible to establish that the substance Hill sold was cocaine, the evidence adduced at trial was insufficient to show that Hill distributed cocaine or any other substance. More specifically, Hill argues that the testimony of Kreisheimer and Baker was not sufficient to sustain the Commonwealth's burden of proof because the witnesses were convicted felons yet to be sentenced who expected favorable treatment at sentencing because of this cooperation. We find no merit in these contentions.

Although the testimony of felons may be impeached by evidence of their prior convictions, their testimony is competent and sufficient to support a conviction if credited by the jury. See Gray v. Commonwealth, 233 Va. 313, 344-45, 356 S.E.2d 157, 174-75, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); Justus v. Commonwealth, 222 Va. 667, 678, 283 S.E.2d 905, 911 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 693 (1982). The jury was aware that Kreisheimer and Baker were convicted felons and that their cooperation in testifying against Hill would be considered by the judges who would sentence them. It was within the jury's province to assess the credibility of their testimony and to determine the weight it was to be accorded. Gray, 233 Va. at 344, 356 S.E.2d at 175-76; Johnson v. Commonwealth, 224 Va. 525, 528, 298 S.E.2d 99, 101 (1982).

We also note that the testimony of Kreisheimer and Lewis was significantly corroborated by Armstrong, Martin and Kreisheimer's mother. Viewing all of the evidence in this record in the light most favorable to the Commonwealth and giving to that evidence all reasonable inferences fairly deducible therefrom, Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), we conclude that the evidence was sufficient to qualify Kreisheimer as an expert in identifying cocaine and to permit the jury to find beyond a reasonable doubt that Hill distributed cocaine in violation of Code § 18.2-248.

II.

Next, Hill contends that the trial court erred in refusing to consider his motion to set aside the verdict on the basis of ineffective assistance of counsel and in denying him his right to effective assistance of counsel. We consider these two allegations together.

On May 14, 1986, the day of his sentencing hearing, Hill filed a pro se motion to set aside the verdict of the jury based on ineffective assistance of counsel at the trial. His motion contained twenty separate claims of negligence by his trial attorney, including allegations of failure to call witnesses on Hill's behalf, failure to locate and subpoena witnesses, failure to discuss issues with Hill before trial, failure to discuss trial strategy with him, failure to introduce in evidence documents he had available at trial, failure to allow Hill to testify, failure to object to inadmissible evidence, failure to cross-examine witnesses, lack of knowledge of trial rules and procedures, and other similar general allegations.

The defendant's trial counsel was permitted to withdraw from the case after the trial and another attorney was appointed by the court to act in his stead. At a hearing on the motion, Hill proposed to offer the testimony of additional witnesses to prove his allegations of ineffective assistance of counsel and establish his right to have the jury verdict set aside. Hill argued that if he was not allowed to present evidence and to make a proper record at a post-conviction hearing to support his allegations, his statutory right to claim ineffective assistance of counsel on direct appeal would be a nullity. The trial court refused to permit the taking of additional evidence and limited argument on the motion to the record made at the trial of the defendant's case.

In Walker v. Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983), the Supreme Court faced the issue whether a claim of ineffective assistance of ...