Wood v. Com.

• Decision Date: 11 June 1973
• Citation: 197 S.E.2d 200,214 Va. 97
• Parties: Larry Wayne WOOD v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 200

197 S.E.2d 200

214 Va. 97

Larry Wayne WOOD v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

June 11, 1973.

Charles M. L. Mangum, Lynchburg (Henry B. Hinton, Jr., Lynchburg, on brief), for plaintiff in error.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARMAN, Justice.

Larry Wayne Wood (Wood or defendant) was convicted by a jury at a consolidated trial on two indictments ¹ charging him with 'distribution' of a controlled drug in violation of Code § 54--524.101. ²

The jury fixed his punishment at three years in the penitentiary on indictment I and at two years imprisonment on indictment II.

The only question before us is whether the evidence, viewed in the light most favorable to the Commonwealth which prevailed below, is sufficient to establish that the defendant was guilty of distribution within the meaning of that term under Code § 54--524.101.

The charges against Wood arose from his transactions with two state police officers, D. W. Pruitt and W. R. Rector, Jr., who were on undercover assignment to investigate drug activity in the Lynchburg area during the summer and fall of 1971.

Wood first met Pruitt at a party in late August or early September. At their first meeting Wood and Pruitt found that they had a common interest, drugs. After their first meeting they saw each other on several other occasions and their friendship ripened. Wood, of course, did not know that Pruitt, who cast himself in the role of a recently discharged veteran and drug user, was an undercover officer.

Pruitt introduced Wood to Rector who was occupying an apartment with Pruitt and two other undercover officers. Wood frequently visited this apartment and actually resided there with the officers for a period of ten days or two weeks in early October.

The evidence discloses that Wood initiated both of the transactions leading to his convictions. In each instance he told one of the undercover officers that he was going to purchase contraband drugs and invited the officer to join with him in making a purchase. On each occasion, in the officer's presence, Wood received a quantity of drugs from a seller and subsequently delivered part of them to the undercover officer.

The defendant argues that each of these transactions was 'a joint venture by two persons to come into possession of some controlled drugs' and that Wood did not knowingly and intentionally distribute drugs as proscribed by Code § 54--524.101(a).

The defendant would have us adopt the 'procuring agent' theory or rule which has been widely followed in the federal courts since it was initiated, so far as we can ascertain, in United States v. Sawyer, 210 F.2d 169 (3rd Cir. 1954). See United States v. Barcella, 432 F.2d 570, 571 (1st Cir. 1970), for a compilation of cases dealing with this theory.

In essence the theory is that if the defendant, in procuring the drugs and delivering them to the recipient, acted solely as the agent of the recipient, and in no other capacity, then the delivery was the transfer by an agent to his principal of what already belonged to the principal and hence did not involve a sale, barter, exchange or gift of a narcotic without a written order as proscribed by 26 U.S.C. § 4705(a). United States v. Barcella, Supra.

The procuring agent theory has been accepted by at least three of our sister states. Commonwealth, v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (Mass.1969); People v. Branch, 13 A.D.2d 714, 213 N.Y.S.2d 535 (1961); Durham v. State, 162 Tex.Cr.R. 25, 280 S.W.2d 737 (1955). Contra, People v. Shannon, 15 Ill.2d 494, 155 N.E.2d 578 (1959).

But we find those decisions adopting the procuring agent theory to be inapposite because the statutes there involved different terminology and a different statutory scheme from the terminology and statutory scheme adopted in Virginia.

This difference is strikingly pointed out in Commonwealth v. Harvard, Supra, where the court noted:

'. . . Rather than prosecute him as an accessory, or one who has delivered, furnished, or exchanged a drug, all of which acts are proscribed by our statutes, the Commonwealth has charged him with unlawful sale.' Id. at 348.

Code § 54--524.2(11) provides: "Distribute' means to deliver a controlled drug.' Code § 54--524.2(8) defines deliver to mean '. . . the actual, constructive, or attempted transfer of a controlled drug, whether or not there exists an agency relationship.'

Thus it can be seen that the term 'distribute' as used in Code § 54--524.101 has been defined by the General Assembly so as to give it the broadest possible meaning and to proscribe acts which would not fall within the more limited terms of 'sale,' 'barter,' 'gift' or 'exchange' which appear in the federal and state statutes underpinning the procuring agent rule.

By the time the Drug Control Act, Code § 54--524.1 et seq, was enacted, Acts of Assembly, 1970, C. 650, the procuring agent rule was well defined and recognized by the courts in several jurisdictions. The conscious choice by the General Assembly of the word 'distribute' and the broad definition given that word by it evinces a legislative intent to proscribe not only the illegal sale, barter, exchange or gift of controlled drugs but also any delivery or transfer, actual or constructive, of possession or title to such drugs from one person to another and we hold this proscription applies to the delivery or transfer by an accommodation party to the transaction.

Further evidence of legislative interpretation and intent is found in the action of the General Assembly in 1972 and 1973. In 1972 the General Assembly repealed Code § 54--524.101 and, in lieu thereof, enacted Code § 54--524.101:1 et seq, Acts of Assembly, 1972, C. 798. The same criminal sanctions which were imposed by Code § 54--524.101 were generally retained in the amended act. The General Assembly provided, however, for a reduced penalty in those cases in which '. . . such persons gave, distributed or possessed with intent to give or distribute such controlled substance only as an accommodation to another individual and not with the intent to profit thereby . . ..' Code § 54--524.101:1 was further amended in 1973 when the General Assembly further reduced the penalty which might be imposed upon an accommodation distributor of marijuana to not more than twelve months in jail and a fine of not more than one thousand dollars. Acts of Assembly, 1973, C. 479.

Taking this view of the statute, we find the evidence sufficient to sustain Wood's convictions.

Affirmed.

COCHRAN, J., dissenting.

HARRISON, J., concurs in dissent.

COCHRAN, Justice (dissenting).

I respectfully dissent, as I believe the evidence is insufficient as a matter of law to sustain Wood's convictions.

Wood met Pruitt at a party in late August or early September, 1971, and they developed a friendship. Through Pruitt, Wood became acquainted with Rector and two other undercover officers, all of whom shared an apartment with Pruitt. The defendant frequented the apartment and, for a period of ten days to two weeks in October, actually resided there.

There is little dispute as to the facts surrounding the two transactions which gave rise to Wood's convictions. In one instance, the defendant saw Pruitt at the Cavalier Restaurant in Lynchburg and asked if he had seen an illicit drug dealer, Greg Brown, known to both of them. Officer Pruitt indicated that he had not but suggested where Brown might be found. The defendant then asked Pruitt if he wanted to accompany him in search of Brown to buy some heroin, and Pruitt agreed. They located Brown who in turn unearthed 'some ddude' who was selling 'nickel' or five dollar bags of heroin. As Pruitt reached for his wallet to pay for one bag, the defendant handed Brown some money with instructions to purchase two bags for them. The defendant told Pruitt, who did not have the correct change, to reimburse him when they returned to the Cavalier. They remained in the car until Brown reappeared and delivered two foil-wrapped packets of heroin to the defendant who immediately passed one to Pruitt. After they returned to the Cavalier, Pruitt obtained change and repaid Wood.

On Cotober 22, 1971, Wood came by the undercover officers' apartment for a visit. After he had been there about an hour, he suggested to Officer Rector that they go to the Lynchburg Community College and 'score some grass'. It was agreed that they would split an ounce of marijuana, and that Rector would lend Wood the latter's half of the fifteen dollar purchase price. Rector turned over the purchase money to Wood but accompanied him on the venture. When they located a source, Bill Mace, at the college, the defendant paid him and received the 'baggie' of marijuana. Upon returning to Rector's apartment, Wood divided the marijuana with Rector and left.

On this evidence, Wood was convicted of two counts of unlawful distribution of a controlled drug. Relying on the broad language of the statute the majority would affirm the convictions.

In the majority opinion the 'procuring agent' rule,...