COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bumgardner and Frank 

Argued at Alexandria, Virginia 

MARION KENNETH WRIGHT 

 OPINION BY 

v. Record No. 1078-99-4 JUDGE ROBERT P. FRANK 

 APRIL 25, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

John E. Kloch, Judge 

 Jeffrey T. Barbour, Senior Assistant Public 

Defender, for appellant. 

 Richard B. Smith, Senior Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Marion Kenneth Wright (appellant) appeals his conviction of 

distribution of cocaine in violation of Code § 18.2-248. On 

appeal, appellant contends the trial court erred in denying his 

motion to compel the disclosure of the police surveillance 

location. We disagree and affirm the conviction. 

I. BACKGROUND 

 Investigator Diane Gittins of the Alexandria Police 

Department was "spotting" in a concealed location in the 500 

block of Four Mile Road in the City of Alexandria. From the 

"spotting" position, which was located approximately 100 

horizontal feet and 50 to 150 vertical feet away, Gittins 
observed a female, later identified as Brenda Rucker, speaking 

with appellant. 

 Gittins saw Rucker reach into her pocket and fold her hand 

into a fist. Gittins testified that she saw Rucker place her 

fist over appellant's left hand and drop into his hand an "off 

white, rock-like object wrapped tightly in plastic." Appellant 

passed the rock-like object from his left hand to his right hand 

and then to the left hand of another individual, Mr. Argondona. 

Argondona placed the object in his pocket. 

 As appellant and Argondona crossed the street, appellant 

aggressively tried to get into Argondona's left pocket. 

Argondona backed up with his left hand over his pocket to 

prevent appellant from reaching inside the pocket. 

 Rucker testified that she approached appellant and asked 

"if he was looking." Rucker stated that appellant responded, 

"Yes." Appellant asked for a "20." Rucker gave appellant a 

"dime." Rucker said appellant then passed the rock to 

Argondona. Appellant gave Rucker $10, which he received from 

Argondona. As Rucker walked away, she heard appellant tell 

Argondona, "Give me my piece." 

 Following the transaction, Gittins radioed for the arrest 

of the individuals, describing the subjects. The arresting 

officers arrived, found appellant and Argondona, and arrested 

them. One of the officers searched Argondona and found a rock 

of crack cocaine in his pocket. The rock of cocaine found on 

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Argondona was consistent with the appearance of the rock-like 

object Rucker sold to appellant. 

 Gittins did not see an exchange of money, and no money or 

drugs were found on appellant. The transfer took place within 

ten to fifteen feet of a streetlight and within a few feet of a 

dumpster. The weather was clear. 

 Gittins used a spotting scope to observe the transaction. 

She testified that nothing obstructed her vision. Gittins 

testified she had spent over 4,000 hours spotting such 

transactions. 

 Appellant submitted two photographs of the location of the 

transaction. Appellant's counsel conceded that the two 

photographs did not show where the sale actually occurred. 

II. ANALYSIS 

 Appellant contends the trial court erred in denying his 

motion to compel Gittins to disclose her surveillance location. 

He asserts that the information was material to his defense. We 

disagree and affirm the conviction. 

 We review the trial court's ruling for an abuse of 

discretion. See Hollins v. Commonwealth, 19 Va. App. 223, 228, 

450 S.E.2d 397, 400 (1994). 

 In Hollins, we said: 

 To compel the disclosure of the exact 

location of a surveillance post, appellant 

must "show that he needs the evidence to 

conduct his defense and that there are no 

other adequate alternative means of getting 

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at the same point." Only then must the 

court balance the public interest in 

effective law enforcement and citizens' 

safety against the defendant's 

constitutional right to confront government 

witnesses. If the court finds that a 

defendant's rights may be adversely 

affected, the court may review the location 

in camera and determine if revelation is 

necessary. If a court requires disclosure, 

the Commonwealth may still assert its 

privilege but must forego 

prosecution. . . . 

 In deciding whether to compel 

disclosure, courts have considered the 

quality of any corroborating evidence, and 

the effectiveness of the cross-examination 

of the surveillance witness. Assuring 

adequate cross-examination of government 

witnesses while preserving the privilege 

varies with the facts of each case. 

However, other courts have weighed the 

following facts before requiring disclosure: 

(1) the use of any vision-enhancing device, 

(2) the officer's distance from the 

defendant, (3) the elevation of the post, 

(4) the existence of any special weather 

conditions, (5) the weaknesses in the 

officer's own vision or observation skills, 

(6) the adequacy of lighting, (7) the angle 

of sight, (8) the existence of any 

obstructions, and (9) any other relevant 

facts. 

Id. at 227-28, 450 S.E.2d at 399-400 (citations omitted). 

 Appellant argues that Davis v. Commonwealth, 25 Va. App. 

588, 491 S.E.2d 288 (1997), controls. In Davis, we required 

disclosure of the surveillance position because the defendant 

had independent evidence that the spotter's view was obstructed 

and that the spotter could not identify the seller. See id. at 

593-94, 491 S.E.2d at 290-91. 

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Davis does not control this case. Appellant did not 

establish a required need for disclosure of the location of the 

observation post. Appellant failed to show any possible 

obstruction of the area or to present any independent evidence 

of obstruction. We, therefore, are not required to balance the 

competing interests. 

 Further, the record contains significant evidence to 

corroborate Gittins' testimony that her view was not obstructed 

and that the transaction occurred as she reported it. Rucker, 

who was involved in the sale, corroborated Gittins' testimony of 

the details of the sale. The description of the participants 

was corroborated by the arresting officers, who arrested 

appellant in the same area, within minutes of Gittins' 

observations. Further, appellant did not cross-examine Gittins 

to great length regarding her line of sight. 

 We conclude that the trial court did not abuse its 

discretion in denying appellant's motion to compel disclosure of 

the location of the observation post. 

 For these reasons, we affirm the trial court's judgment. 

Affirmed. 

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