COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bray and Bumgardner 

Argued at Norfolk, Virginia 

JAMES T. SYKES 

 MEMORANDUM OPINION* BY 

v. Record No. 2125-97-1 JUDGE SAM W. COLEMAN III 

 JULY 7, 1998 

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. 

 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. 

I. BACKGROUND

 The evidence proved that a reliable informer told City of 

Newport News Police Detective Robert Vasquez that Sykes was 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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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 
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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.

 "[W]hen 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 
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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 trial court reasonably could 

conclude that Sykes had absconded the jurisdiction and 

voluntarily waived his right to be present at the remainder of 

his trial. 

 Citing the Cruz holding, Sykes contends the trial court 

could not find that he voluntarily waived his right to be present 

at trial unless the court had previously warned him that he could 

be tried in his absence if he failed to appear. We disagree. 

 Sykes' argument ignores the dichotomy between the principles 

applicable to a defendant's failure to appear for the 

commencement of trial and the principles applicable when a 

defendant absents himself and fails to appear mid-trial. See

Crosby v. United States, 506 U.S. 255, 260-61 (1993). Cruz, 

dealing with a defendant's absence at the commencement of trial, 

held that an accused's voluntary waiver of his right to be 

present for the "entire trial" cannot be shown unless, among 

other things, he has been warned that his trial may continue in 

his absence. 24 Va. App. at 463, 482 S.E.2d at 884 (emphasis 
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added). In Taylor v. United States, 414 U.S. 17 (1973), the 

United States Supreme Court expressly rejected the contention 

that a defendant who fails to appear in the middle of trial 

cannot be found to have voluntarily waived his right to be 

present unless it is demonstrated that he was warned that the 

trial will proceed in his absence. 414 U.S. at 20-21. The Court 

stated: 

 It is wholly incredible to suggest that [the 

defendant], who was at liberty on bail, had 

attended the opening session of his trial, 

and had a duty to be present at trial . . . 

entertained any doubts about his right to be 

present at every stage of his trial. It 

seems equally incredible to us . . . that a 

defendant who flees from a courtroom in the 

midst of a trial -- where judge, jury, 

witnesses and lawyers are present and ready 

to continue -- would not know that as a 

consequence the trial could continue in his 

absence. 

Id. at 21 (citations omitted). 

 Admittedly, the trial court in this instance interrupted the 

orderly progress of the trial by granting unduly lengthy, 

mid-trial continuances. Nonetheless, once trial has commenced, a 

party knows that the trial of the case is in progress and will be 

resumed at a reasonably foreseeable date. As the Court stated in 

Taylor, it is incredible for a defendant to think that he can 

absent himself mid-trial even when a mid-trial continuance was 

granted, and think that the case would not proceed in his 

absence. Thus, the trial court could properly find that Sykes 

voluntarily absented himself from the remainder of his trial 
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notwithstanding whether he was admonished that the trial could 

continue in his absence. 

 Accordingly, the trial court did not abuse its discretion in 

concluding the trial in Sykes' absence when he voluntarily 

absented himself from the proceedings for more than one year. 

III. REFUSAL TO DISCLOSE IDENTITY OF INFORMER

 As a general rule, "the identity of a person furnishing the 

prosecution with information concerning criminal activities is 

privileged." Gray v. Commonwealth, 233 Va. 313, 328, 356 S.E.2d 

157, 165 (1987). In Roviaro v. United States, 353 U.S. 53 

(1957), 

 the Supreme Court established an exception to 

this general rule, . . . [holding] that 

"where the disclosure of an informer's 

identity . . . is relevant and helpful to the 

defense of an accused, or is essential to a 

fair determination of a cause, the privilege 

[of nondisclosure] must give way." The Court 

stated that "no fixed rule with respect to 

disclosure is justifiable" and explained that 

"[t]he problem is one that calls for 

balancing the public interest in protecting 

the flow of information [to the police] 

against the [accused's] right to prepare his 

defense." 

Daniel v. Commonwealth, 15 Va. App. 736, 739-40, 427 S.E.2d 423, 

425 (1993) (citations omitted). The privilege is generally 

nullified where the informer "participates in the transaction 

. . . and . . . could relate testimony helpful to the defense." 

Stephenson v. Commonwealth, 18 Va. App. 247, 250, 443 S.E.2d 173, 

175 (1994). However, "[t]he defendant must come forward with 

something more than speculation as to the usefulness of the 
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identity of the informer." Lanier v. Commonwealth, 10 Va. App. 

541, 552-53, 394 S.E.2d 495, 502 (1990); see Stephenson, 18 Va. 

App. at 251, 443 S.E.2d at 175. 

 Here, Sykes failed to prove that the informer knew the facts 

of the alleged drug transaction or that the disclosure of the 

informer's identity would have been helpful to his defense or 

essential to a fair determination of the case. The 

uncontroverted evidence established that the informer was in the 

bathroom when the transaction occurred. Nothing in the record 

suggests that the informer participated in, observed, or 

instigated the drug transaction. Cf. Kenner v. Commonwealth, 

8 Va. App. 208, 213, 380 S.E.2d 21, 24-25 (1989) (requiring 

disclosure of informer's identity where evidence established that 

informer was "actual participant and . . . witness" to offenses 

charged). Accordingly, the trial court did not err in refusing 

to disclose the identity of the informer. 

IV. SUFFICIENCY OF THE EVIDENCE

 Sykes contends the evidence is insufficient to prove that he 

possessed cocaine with intent to distribute because the evidence 

proves that he actually distributed cocaine. His argument is 

disingenuous. The same act or acts may violate two or more 

statutes or constitute two or more crimes. Viewed in the light 

most favorable to the Commonwealth, see Derr v. Commonwealth, 242 

Va. 413, 424, 410 S.E.2d 662, 668 (1991), the evidence proved 

that on three occasions, pursuant to Officer Vasquez's request to 
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purchase cocaine, Sykes handed cocaine to Vasquez in exchange for 

money. This evidence supported the trial court's finding that 

Sykes actually possessed cocaine and intended to distribute it. 

See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 

418 (1987). That the evidence may have also proved that Sykes 

actually distributed cocaine is inapposite. The decision to 

prosecute Sykes for possession of cocaine with intent to 

distribute rather than for distribution was a matter of 

prosecutorial discretion and is not reviewable by this Court. 

See Mason v. Commonwealth, 217 Va. 321, 323-24, 228 S.E.2d 683, 

684 (1976). 

 For the foregoing reasons, we affirm the convictions. 

 Affirmed.