COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Charlottesville, Virginia 

EVERETTE LEE BEVERLY 

 MEMORANDUM OPINION* BY 

v. Record No. 2639-94-3 JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 5, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA 

Thomas H. Wood, Judge 

 Humes J. Franklin, Jr. (C. Lynn Lawson; 

Franklin, Franklin, Denney & Ward, P.L.C., on 

briefs), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Everette Lee Beverly (appellant) was convicted by a jury of 

conspiracy to distribute cocaine in violation of Code § 18.2-256. 

 On appeal, appellant argues: (1) his motion for a mistrial 

based on juror misconduct and preconceived bias should have been 

granted; (2) Instruction "A" should have been given; and (3) 

testimony regarding appellant's financial ability and community 

involvement should have been admitted in the sentencing phase. 

For the reasons that follow, we affirm the trial court. 

 BACKGROUND

 On February 12, 1993, Ronald Lee Byers (Byers), a friend of 

appellant, arranged to sell cocaine to undercover State Police 

Special Agent Diane A. Mandeville (Mandeville) at a party held at 

 

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

designated for publication. 
 2 

appellant's home. At the party, Byers asked appellant if he 

could get Mandeville some cocaine. After appellant called Tommy 

Davis (Davis), he and Byers left the party and went to Owens 

Hamilton's house, where appellant purchased four "eight-balls" 

(four packages each weighing one-eighth ounce) of cocaine from 

Davis on credit. Appellant gave Byers two of the "eight-balls." 

 Upon returning to the party, Byers sold the cocaine to 

Mandeville for $600. The exchange occurred in appellant's 

bathroom while he was in another room. Byers gave appellant a 

portion of the proceeds of this sale. Appellant later paid Davis 

for the cocaine. 

 At trial on July 6, 1994, Davis testified that appellant 

purchased cocaine from him sometime in February. Byers 

identified appellant as the person he "made the deal with to get 

the cocaine from Tommy Davis," and testified that appellant 

purchased the cocaine from Davis, because "Tommy never dealt with 

me." The jury found appellant guilty. 

 In the bifurcated sentencing phase, testimony by appellant's 

daughter established that he paid the household bills, and his 

girlfriend testified that he was the major contributor to 

household expenses. Appellant then testified regarding his 

occupation, income, residence, church attendance, lack of prior 

criminal record, hobbies, and family. Over appellant's 

objection, the trial court ruled that he could not testify 

regarding when he bought his home or where he attended church. 
 3 

 

The jury sentenced appellant to thirty years in prison and a fine 

of $250,000. The jury was polled after the verdict and after 

sentencing, and on both occasions indicated a unanimous verdict. 

 At a September 9, 1994 post-verdict hearing, appellant 

presented testimony from Carolyn and Warren Cash, about juror 

Leslie Clements.1

 Their testimony was contradictory and 

inconsistent.2 

 On September 22, 1994, the court conducted a hearing to 

investigate the allegations of juror misconduct, and recalled 

 1Carolyn Cash alleged that Clements came to her house on 

July 4, 1994 (two days before the trial) and stated to her, "I 

think [Everette Beverly] should get forty years or a five hundred 

thousand dollar fine. I think he should get the maximum." Mrs. 

Cash alleged that Clements expressed the opinion that appellant 

was, without doubt, guilty. She further alleged that after the 

trial, Clements told her he had "pushed the jury for--for a 

guilty verdict . . . he pushed it all the way." 

 Warren Cash alleged that he had a conversation with Clements 

prior to trial at Dana Corporation, and Clements indicated he 

knew he was serving on appellant's jury, and that he was sure 

appellant was guilty. 

 Clements admitted that he spoke with Mr. Cash about serving 

on jury duty prior to the trial, because he wanted to get excused 

from jury duty to start work at his new job that Mr. Cash helped 

him obtain. Clements stated that he did not discuss the trial 

with the Cashes until after it ended, when he told them the 

result. He also stated to the court that he told the judge at 

trial that he could "come up with [an unbiased] opinion." 

Clements stated that, prior to trial, he did not know which trial 

he would hear. 

 2Mrs. Cash initially testified that she did not know 

appellant personally, but on cross-examination admitted that she 

had been to his home, and that her children were "pretty good 

friends" of appellant's children. Mr. Cash then testified that 

he, his wife, and his children had been to appellant's house on 

more than one occasion to swim in appellant's pool. Mr. Cash 

testified that the conversation with Clements occurred at his 

place of employment on July 4; Mrs. Cash had testified that the 

conversation occurred at their home. 
 4 

Clements and six other jurors. All the jurors indicated that 

they did not know whose case would be tried before they arrived 

at the courthouse on the day of trial, and that they did not know 

whether a civil or criminal case was to be heard. Clements 

acknowledged to the court that he knew several witnesses in the 

trial, but recalled that he had stated to the court at trial that 

he could render an unbiased opinion. Clements testified that he 

did not discuss the case with the Cashes, other than mentioning 

he would try to be excused from jury duty due to a work conflict, 

and that he had no preconceived notion of the case or of 

appellant's guilt or innocence. 

 JUROR BIAS

 Appellant argues that the trial court erred in overruling 

his motion for a mistrial based on the allegations of juror 

misconduct and preconceived bias. 

 In overruling appellant's motion, the trial court stated as 

follows: 

 [T]he key issue is whether [Clements] knew 

what trial it was beforehand is important and 

not one of these jurors knew what case they 

were trying when they walked in this 

Courtroom. Not one of them. . . . [I]nsofar 

as just demeanor does go, Carolyn Cash had 

the worst demeanor of any witness I've ever 

seen. Particularly when her own husband 

contradicted her on the stand and these are 

serious charges that these people brought. 

 . . . [I]f I thought for one minute this had 

happened, I'd set this verdict aside but 

gentlemen I don't believe it ever happened. 

I don't believe there ever was any 

conversation between Mr. Clements and Carolyn 

Cash before this trial. I don't believe it 

ever happened and I don't believe he ever 
 5 

expressed any, made any such expressions 

about it. I don't think he even knew the 

trial was coming up so I'm going to overrule 
 6 

 the motion to set aside this jury verdict Mr. 

Franklin. 

(Emphasis added). 

 Where a trial court hears witnesses testify, observes their 

demeanor on the stand, and has the right to believe or disbelieve 

their statements, the "finding of the judge, upon the credibility 

of the witnesses and the weight to be given their evidence . . . 

unless that finding is plainly wrong, or without evidence to 

support it, it cannot be disturbed." Lane v. Commonwealth, 184 

Va. 603, 611, 35 S.E.2d 749, 752 (1945). 

 A trial court's determination that a particular juror is 

able to render a fair and impartial verdict is "entitled to great 

weight and will not be disturbed on appeal unless manifest error 

exists." Calhoun v. Commonwealth, 226 Va. 256, 258-59, 307 

S.E.2d 896, 898 (1983). See also Williams v. Commonwealth, 19 

Va. App. 600, 602, 453 S.E.2d 575, 576 (1995), rev'd on other 

grounds, 21 Va. App. 616, 466 S.E.2d 754 (1996) (en banc). 

Whether the trial court should grant a mistrial is a matter 

within the sound discretion of that court and, absent an abuse of 

discretion, the court's ruling on that issue will not be 

disturbed on appeal. Cheng v. Commonwealth, 240 Va. 26, 40, 393 

S.E.2d 599, 607 (1990). 

 The trial court conducted an extensive investigatory hearing 

on September 22, 1994. It heard the testimony of Mr. and Mrs. 

Cash, Mr. Clements, and six other jurors. The court found no 

evidence of misconduct or bias, and determined that the testimony 
 7 

proffered by the Cashes was inconsistent, contradictory, 

incredible, and not worthy of belief. The record fails to show 

error or an abuse of discretion, and amply supports the findings 

of the trial court. 

 JURY INSTRUCTIONS

 Appellant next argues that the jury was not properly 

instructed on the difference between conspiracy and distribution. 

 Appellant was charged with conspiracy to distribute cocaine. 

 Instruction "C," the instruction given by the trial court, 

provided as follows: 

 The defendant is charged with the crime of 

conspiracy. The Commonwealth must prove, 

beyond a reasonable doubt, each of the 

following elements of that crime: 

 (1) That the defendant entered into an 

agreement with one or more persons; and 

 (2) That the agreement was that they were to 

commit distribution of cocaine (a Schedule II 

substance); and 

 (3) That both the defendant and at least one 

other party to the agreement intended to 

commit distribution of cocaine (a Schedule II 

substance); 

 

 If you find from the evidence that the 

Commonwealth has proved, beyond a reasonable 

doubt, each of the above elements of the 

offense as charged, then you shall find the 

defendant guilty. 

The refused Instruction "A" provided: 

 Evidence of a distribution offense absent an 

agreement will not suffice to support a 

conspiracy conviction. If the Commonwealth's 

evidence only shows a distribution offense 

that was not a product of an agreement 

between two or more persons to act in 

concert, then you shall find the defendant 

not guilty of conspiracy. 
 8 

 Conspiracy is an offense independent of the object crime, 

and a person may be found guilty of conspiracy, in some 

circumstances, even if not convicted of the underlying object 

crime. Boyd v. Commonwealth, 236 Va. 346, 351, 374 S.E.2d 301, 

313 (1988). "Conspiracy is defined as 'an agreement between two 

or more persons by some concerted action to commit an offense.' 

The offense 'is committed when the agreement is complete 

regardless of whether any overt act in furtherance of the 

commission of the substantive offense is initiated.'" Cirios v. 

Commonwealth, 7 Va. App. 292, 300, 373 S.E.2d 164, 167 (1988) 

(quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 

327 (1937), and Ramsey v. Commonwealth, 2 Va. App. 265, 270, 343 

S.E.2d 465, 469 (1989)). 

 Where the granted instruction "fully and fairly instruct[s] 

the jury on the applicable law," there is no abuse of the trial 

court's discretion in ruling appellant's proffered instruction 

duplicative. See Eaton v. Commonwealth, 240 Va. 236, 255-58, 397 

S.E.2d 385, 396-98 (1990), cert. denied, 502 U.S. 824 (1991). 

See also Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 

371, 384 (1984), cert. denied, 469 U.S. 873 (1984). 

 In the instant case, Instruction "C" adequately stated the 

law and described the charge of conspiracy. Instruction "A" 

added nothing that was not covered in Instruction "C." Thus, we 

hold that the trial court did not abuse its discretion in 

instructing the jury. 
 9 

 SENTENCING 

 Finally, appellant argues that, at the sentencing phase, the 

trial court should have allowed him to present additional 

testimony concerning his financial obligations and community 

involvement. He argues this evidence was relevant to the degree 

of punishment appellant should have received. 

 Code § 19.2-295.1 provides, in pertinent part, "After the 

Commonwealth has introduced such evidence of prior convictions, 

or if no such evidence is introduced, the defendant may introduce 

relevant, admissible evidence related to punishment." 

 "[A]n appellate court will not consider an error assigned to 

the rejection of testimony unless a proper proffer of such 

testimony be made part of the record." Archie v. Commonwealth, 

14 Va. App. 684, 692, 420 S.E.2d 718, 722 (1992). "[A] 

unilateral avowal of counsel, if unchallenged, or a mutual 

stipulation of the testimony expected constitutes a proper 

proffer . . . absent such acquiescence or stipulation, this Court 

will not consider an error assigned to the rejection of testimony 

unless such testimony has been given in the absence of the jury 

and made a part of the record in the manner prescribed by the 

Rules of Court." Whitaker v. Commonwealth, 217 Va. 966, 969, 234 

S.E.2d 79, 81 (1977). 

 In the instant case, at the sentencing phase, the court 

allowed appellant to present evidence regarding his education, 

work experience, income, residence, lack of prior criminal 
 10 

record, family financial obligations, hobbies, and church 

attendance. The court limited appellant only when he began to 

discuss when he bought his house and where he attended church, 

properly finding these matters irrelevant and cumulative. 

Additionally, appellant failed to adequately proffer the 

requested information for consideration on appeal. 

 Accordingly, we affirm the decision of the trial court. 

 Affirmed.