                    COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


ATIF BEYAH SALEEM
                                                OPINION BY
v.    Record No. 1823-95-4                JUDGE CHARLES H. DUFF
                                             JANUARY 14, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                   Herman A. Whisenant, Jr., Judge

           Robert W. King, Jr., for appellant.

           John H. McLees, Jr., Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     In a bench trial, Atif Beyah Saleem (appellant) was found

guilty of robbery and the use of a firearm in the commission of

robbery.   Appellant contends on appeal that the trial court

should have suppressed the statements he made to inmate Darryl

Watkins because the statements were obtained in violation of his

Sixth Amendment right to counsel.   Appellant further argues that

the evidence was insufficient to support his convictions.

Finding no error, we affirm the convictions.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."    Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     On September 5, 1994, Lisa Mays was working as a cashier at

Market Street restaurant in Woodbridge.   At closing time, she
took the cash register drawer to the office to total the proceeds

from the day and to perform paperwork.    When she reached the

office door, she was confronted by a man wearing a ski mask and

pointing a gun at her.   The man was short and stocky and wore

black pants with a "bluish green" shirt.    While Mays stood still,

another man approached her from behind, pushed her into the

office, and shut the door.   The second man was taller and thinner

than the first, was dressed all in black, wore a ski mask, and

carried a handgun.   Both men wore rubber gloves.
     After the office door was shut, the men pointed with their

guns to the cash register drawer and then down at a bag.    The

shorter of the two men took the money from the drawer, which

totalled $2,300, and put it in the bag.    The shorter man then

pointed to the floor with his gun.     Mays responded by lying face

down on the floor.   One of the men pressed a gun against Mays'

back "real hard."    Before the two men left, Mays saw the shorter

man place his finger to his lips, which Mays interpreted as a

command for her to remain quiet.   As soon as she was certain the

men were gone, Mays fled the office and contacted the police.

The back door of the restaurant was later discovered unlocked.

     No words were spoken during the robbery.     Mays testified

that she knew appellant and could recognize his voice because he

had worked as a cook at Market Street.    Appellant was no longer

employed at the restaurant on the day of the robbery.    The

procedure conducted at the close of business at Market Street was




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common knowledge among the restaurant employees.

        At trial, the Commonwealth introduced the testimony of

Watkins, who had been incarcerated with appellant prior to trial.

Watkins testified that appellant told him the charge against him

was the product of "entrapment" because during the robbery he was

behind "this woman" with a gun, and that now she was saying she

could identify him by his voice.       Appellant told Watkins he had

been wearing a mask, and he wondered how the woman could identify

him because he had not spoken much during the robbery.      Appellant

also said he used to work at "The Market" restaurant, that he

knew what time the money would be brought to the office, that he

and a "young guy" waited in the office for a woman to bring in

the cash register drawer, and that they had left the restaurant

by the back door.    Appellant said about $2,000 was taken in the

robbery.
        Appellant presented the testimony of two other inmates, who

maintained that the conversation between appellant and Watkins

had not occurred.

                                  I.

        At a hearing on appellant's motion to suppress, the

Commonwealth presented evidence of the circumstances surrounding

appellant's statement to Watkins.       Watkins testified that he was

sentenced on several felony convictions in September 1994, and

had been serving his nine year sentence in the jail since that

time.    In January 1995, Detective Anthony Spencer visited




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Watkins, who previously had asked to be moved to a different

building.   Spencer told Watkins that, while Watkins was in the

other building, if "[he] hear[d] someone speaking about a

case[,]" to "keep [his] ears open" and "get back with" Spencer.

Spencer mentioned several specific cases, including a robbery

case involving "Atif."   However, Spencer did not tell Watkins any

details about the robbery at the restaurant.

     Watkins agreed to do as Spencer requested.     Watkins was

promised nothing in return for supplying information to the

police, and had received no consideration at the time of the

suppression hearing or the trial.     Although he had been promised

nothing, Watkins said he "hoped" some of his court costs would be

"paid out of this."
     A few days after his conversation with Spencer, Watkins was

transferred to the building he had requested and was assigned to

appellant's cellblock.   Watkins had little conversation with

appellant until late the following evening when Watkins,

appellant, and other inmates were watching television together.

Appellant stated spontaneously that his own case was similar to

the television program they were watching, which involved what

the inmates perceived as entrapment techniques used by the

police.   Appellant said although he had worn a mask, a woman

supposedly could identify him by his voice.    Appellant said he

could not understand how he could have been identified because he

had not spoken much during the robbery.    During an ensuing




                                -4-
conversation involving Watkins, appellant revealed further

details of the offense.

     When Watkins subsequently reported this information to

Spencer, Spencer did not promise Watkins any consideration in

exchange.   Watkins later was transferred out of the building

where appellant was housed.

     Appellant contends that his Sixth Amendment right to counsel

was violated because Watkins, while acting as a government agent,

deliberately elicited statements from him after indictment and in

the absence of his attorney.   The United States Supreme Court has

"recognized a suspect's need to have counsel present during
in-custody conversations with government informants."     Lafon v.

Commonwealth, 17 Va. App. 411, 422, 438 S.E.2d 279, 286 (1993)

(citing United States v. Henry, 447 U.S. 264 (1980)).
          The Sixth Amendment guarantees the accused,
          at least after the initiation of formal
          charges, the right to rely on counsel as a
          "medium" between him and the State. . . .
          [T]his guarantee includes the State's
          affirmative obligation not to act in a manner
          that circumvents the protections accorded the
          accused by invoking this right.

Maine v. Moulton, 474 U.S. 159, 176 (1985).   To constitute a

violation of the suspect's Sixth Amendment right to counsel, "the

statements in question must have been (1) deliberately elicited

(2) by a government agent."    United States v. Li, 55 F.3d 325,

328 (7th Cir. 1995).   Both of these prongs must be satisfied in

order for a Sixth Amendment violation to result.    See United

States v. Taylor, 800 F.2d 1012, 1015 (10th Cir. 1986), cert.



                                -5-
denied, 484 U.S. 838 (1987).

     The determination of whether an informant was acting as a

government agent turns upon "the facts and circumstances of each

case."   Id.   "[T]he protections of the Sixth Amendment right to

counsel . . . are inapplicable when, after the right to counsel

has attached, statements by a defendant are made to an individual

who is not an agent for the Government, although he may be a

Government informant."    Id.   An important component in

determining whether an informant was also a government agent is

the benefit the informant was promised as part of his agreement

to provide information to the police.     See Moulton, 474 U.S. at

163 (informant received sentencing consideration upon pending

charges); Henry, 447 U.S. at 266 (informant paid for useful

information given to police).     See also Thomas v. Cox, 708 F.2d

132, 134-35 (4th Cir.), cert. denied, 464 U.S. 918 (1983).

     In a factual situation similar to the present case, the

Tenth Circuit of the United States Court of Appeals observed:
          No agreement was made between [the informant]
          and the Government and no benefits accrued to
          [the informant] for his cooperation. Any
          benefits which [the informant] hoped to
          obtain were mere expectancies. We decline to
          infer an agreement between the Government and
          [the informant] merely from the placement of
          [the defendant] in [the informant's] cell.
          In the absence of any express or implied quid
          pro quo underlying the relationship between
          [the informant] and the Government, and in
          the absence of any instructions or directions
          by the Government, . . . [the informant] was
          not a government agent.


Taylor, 800 F.2d at 1016 (citation omitted).    In fact, the



                                  -6-
motives of an informant "cannot make him an agent of the police

even if the police knew and understood that his motives probably

were self-serving and related to getting police cooperation in

his own case."   Lightbourne v. Dugger, 829 F.2d 1012, 1021 (11th

Cir. 1987), cert. denied, 488 U.S. 934 (1988).

     In the present case, the evidence was uncontroverted that

Watkins was promised, and he received, nothing in exchange for

gathering information for the police.   The only suggestion of a

benefit to Watkins was his own statement that he "hoped" some of

his court costs would be paid.   Watkins' wishful thinking,

however, did not create an agreement with Spencer that otherwise

did not exist.   Furthermore, although Spencer asked Watkins to

keep his "ears open" about the robbery, Spencer did not instruct

Watkins how to gain information about the offense, nor did he

tell Watkins to question appellant.
     Under these circumstances, we find that Watkins was not a

government agent when appellant made the statements to him.

Because one of the necessary prongs did not exist, appellant's

Sixth Amendment right to counsel was not violated and the

statements were admissible.   For this reason, we need not decide

whether Watkins deliberately elicited the statements from

appellant.

                                 II.

     Appellant argues that the trial court should have rejected

Watkins' testimony because Watkins' description of his



                                 -7-
conversation with appellant was not credible.    However, "[t]he

weight which should be given to evidence and whether the

testimony of a witness is credible are questions which the fact

finder must decide."    Bridgeman v. Commonwealth, 3 Va. App. 523,

528, 351 S.E.2d 598, 601 (1986).

     Appellant's description of the robbery to Watkins was

consistent, in all significant respects, with Mays' testimony

about the incident.    According to appellant's statement, he and

another man, while both were masked and armed, robbed a woman at

"The Market" restaurant, where appellant previously had been

employed.   Mays corroborated all of these details.   Appellant

told Watkins he had not spoken "much" during the robbery so the

woman could not identify his voice.    Indeed, by maintaining

silence appellant prevented Mays, who was familiar with his

voice, from later identifying him.     Appellant told Watkins he had

left the restaurant by the back door, which was discovered

unlocked after the robbery.   The amount of money appellant told

Watkins he obtained in the crime was nearly the same as that

actually taken during the robbery.     Furthermore, the

circumstances strongly suggested that the robbery was committed

by someone with knowledge of the restaurant's procedures, such as

a former employee.
     Considering these facts, the evidence was sufficient to

prove beyond a reasonable doubt that appellant committed the

robbery and the associated firearm offense.    Thus, the trial



                                 -8-
judge did not err in refusing to strike the evidence.

     For the foregoing reasons, we affirm appellant's

convictions.

                                             Affirmed.




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