JAMES T. SYKES
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS. Verbena M. Askew, Judge.
Edward I. Sarfan (Sarfan & Nachman, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Coleman, Bray
MEMORANDUM OPINION [*]
SAM W. COLEMAN III
James T. Sykes appeals his bench trial convictions for three counts of possession of cocaine with intent to distribute. See Code § 18.2-248. Specifically, he contends: (1) the trial court abused its discretion by trying him in his absence when he failed to appear for the conclusion of his trial; (2) the trial court erroneously refused to compel the Commonwealth to disclose the identity of an informer; and (3) the evidence is insufficient as a matter of law to support the convictions. We disagree and affirm the convictions.
The evidence proved that a reliable informer told City of Newport News Police Detective Robert Vasquez that Sykes was distributing crack cocaine from his home. Vasquez and the informer went to Sykes' apartment. Vasquez had instructed the informer to excuse himself to Sykes' bathroom upon arrival and to remain there while Vasquez purchased drugs from Sykes.
Sykes greeted Vasquez and the informer at the front door, and, as arranged, the informer excused himself to the bathroom. Vasquez told Sykes he wanted to purchase an " eight ball, " street lingo for a quantity of cocaine. Sykes walked to an adjacent room and returned with several rocks of crack cocaine. Sykes handed the cocaine to Vasquez in exchange for $ 170. Vasquez and the informer then left.
At trial, Vasquez testified that he did not know whether the informer had come out of the bathroom during the drug transaction or heard the conversation with Sykes. Vasquez also testified that on two occasions he returned to Sykes' residence and purchased crack cocaine from Sykes. Sykes was charged with three counts of possession of cocaine with intent to distribute.
Sykes' trial began on April 18, 1996. At the close of the Commonwealth's evidence, Sykes made a motion to strike the evidence. The trial court ordered a continuance in order for counsel to submit legal memoranda regarding the motion to strike. The court instructed defense counsel to " set [the conclusion of the trial] on another date in this Court." On June 3, 1996, the court continued the matter generally with the direction that " the defendant's attorney is to set a trial date with the Commonwealth's Attorney." On July 17, 1996, Sykes failed to appear for the resumption of trial, and the case was continued to August 12, 1996. On August 12, Sykes again failed to appear, and a capias was issued for his arrest. Despite attempts to locate Sykes, the Commonwealth was unable to serve the capias. On April 23, 1997, more than one year after the trial had commenced, the trial court completed the guilt phase of the trial in Sykes' absence. The court found him guilty of three counts of possession of cocaine with intent to distribute.
II. RESUMING TRIAL IN APPELLANT'S ABSENCE
An accused's right to be present at trial arises from the Confrontation Clause of the Sixth Amendment and Code § 19.2-259. Cruz v. Commonwealth, 24 Va.App. 454, 460, 482 S.E.2d 880, 883 (1997) ( en banc ); Hunter v. Commonwealth, 13 Va.App. 187, 190, 409 S.E.2d 483, 485 (1991). However, a defendant's voluntary absence from trial may be properly construed as a waiver of his constitutional and statutory rights to be present at trial. Id. " When the trial court determines that a defendant has voluntarily and knowingly absconded from the jurisdiction after his trial has commenced, public policy dictates that a trial court, exercising its broad discretion, may proceed with the trial in the defendant's absence." Barfield v. Commonwealth, 20 Va.App. 447, 453, 457 S.E.2d 786, 789 (1995).
In the present case, at the conclusion of the Commonwealth's evidence, the trial judge instructed the parties to coordinate a date to complete the trial. Sykes failed to appear at the next three scheduled trial dates. The trial court issued a capias for Sykes' failure to appear, which capias remained outstanding for several months. To no avail, the Commonwealth searched for Sykes in an effort to serve the capias. More than one year after the Commonwealth presented its case, defense counsel offered no explanation to explain Sykes' absence and failure to appear for trial. Under the circumstances, the ...