                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Annunziata and
          Bumgardner
Argued at Alexandria, Virginia


CHRIS GARY PETERS
                                      MEMORANDUM * OPINION BY
v.   Record No. 3060-96-4            JUDGE ROSEMARIE ANNUNZIATA
                                         FEBRUARY 3, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                         Donald H. Kent, Judge
            Jeffrey T. Barbour, Assistant Public Defender
            (Office of the Public Defender, on brief),
            for appellant.

            Eugene Murphy, Assistant Attorney General
            (Richard Cullen, Attorney General, on brief),
            for appellee.



     Chris Gary Peters (appellant) appeals his conviction for

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

contends that the trial court erroneously denied his motion to

compel the disclosure of the Commonwealth's surveillance location

and that the evidence was insufficient to support his conviction.

We disagree and affirm.

     On May 1, 1996, appellant was arrested for distribution of

cocaine after Officer William Bunney, concealed in an observation

post, observed appellant hand what he believed to be crack

cocaine to another man on the 3800 block of Old Dominion

Boulevard in Alexandria, Virginia.    Appellant filed a Motion to

      *
       Pursuant to Code § 17-116 this opinion is not designated
for publication.
Compel Disclosure of Surveillance Location in an attempt to

discover Bunney's exact location.

     At a hearing on appellant's motion, Bunney testified that at

9:05 p.m. on May 1, 1996, he was conducting a surveillance of the

3800 block of Old Dominion Boulevard from a concealed location

using a Sorovsky spy scope with a magnification of 20-60 times.

Streetlights and lights on the fronts of buildings lit the block,

as the sun had gone down.   Bunney testified that his observation

post was within the 3800 block, elevated between twenty and

thirty feet, and that there were no obstructions between him and

the area he was viewing.    There was no precipitation, and the

area Bunney was observing was directly in front of him.   Bunney

stated that, within the previous year, he had told the owner of

the building in which he was concealed that the location "would

never be revealed because they were concerned about reprisals

from individuals on the street."
     Bunney saw appellant walk past two individuals standing

outside an apartment building at 3816 Old Dominion Boulevard and

into the apartment building.   Appellant came out of the building

with his right hand closed, and gave "at least one rock of what

appeared to be crack cocaine" to one of the individuals standing

outside of the building, later identified as William Brown.

Bunney called other members of his unit for the arrest of

appellant and Brown.

     On cross-examination, Bunney acknowledged that there are at




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least four trees on the west side of the 3800 block of Old

Dominion Boulevard, the side opposite that of his observation

post.    However, they are located south of the doorway where the

transaction involving appellant occurred.    He testified that,

although one tree at least partially blocked his view of the

sidewalk south of 3816 Old Dominion Boulevard for twenty to

thirty feet, and that a building blocked his view of the end of

the block, his view of the location where the transaction

occurred was not blocked.
        The court denied appellant's motion, ruling that the defense

had not "established that there are no alternative means of

getting at the same point," given counsel's cross-examination of

Bunney.    The court also ruled that the interests of the

Commonwealth in protecting the surveillance location outweighed

appellant's interest in knowing the location.

        At trial before the court sitting without a jury, Bunney

testified that he saw appellant "pour[] one rock or at least one

rock of crack cocaine from his right hand into palm up, left hand

of Mr. Brown" after leaving the building at 3816 Old Dominion

Boulevard.    Brown put his left hand, containing the cocaine, into

his left pants pocket.    Bunney notified other officers to arrest

Brown and appellant, and confirmed that they had arrested the

correct people.    Officer Christopher Wimple testified that he

arrested Brown, and found a rock of an off-white substance in

Brown's left pants pocket; testing determined the substance to be




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crack cocaine.

     Appellant testified in his own defense that he had gone with

his father-in-law to look at a car on Old Dominion Boulevard.    He

testified that as he walked down Old Dominion Boulevard, he had

passed some men, the shorter one of whom asked him for a

cigarette; he gave the man his lit cigarette.

     The court found appellant guilty and sentenced him to five

years imprisonment, with four years suspended.
                                  I.

                 Disclosure of Surveillance Location

     Appellant first contends that the court erred in denying his

motion to compel the Commonwealth to reveal the location from

which Bunney observed him.   We review a court's denial of such a

motion for an abuse of discretion.     Hollins v. Commonwealth, 19

Va. App. 223, 228, 450 S.E.2d 397, 400 (1994).

     The Commonwealth "has a qualified privilege not to disclose

the location" of a concealed surveillance post.     Hollins, 19 Va.

App. at 226, 450 S.E.2d at 399.    "The Commonwealth's privilege is

limited, however, by 'the fundamental requirements of fairness,'

which require consideration of an accused's right to prepare [a]

defense."   Davis v. Commonwealth, 25 Va. App. 588, 593, 491

S.E.2d 288, 290 (1997) (quoting Roviaro v. United States, 353

U.S. 53, 60, 62 (1957)).   In order to overcome the Commonwealth's

privilege, a defendant
          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.


Hollins, 19 Va. App. at 227, 450 S.E.2d at 399 (citation

omitted).

     Appellant has not satisfied his burden to "'show that he

needs the evidence to conduct his defense.'"    Hollins, 19 Va.

App. at 227, 450 S.E.2d at 399 (quoting United States v. Harley,

682 F.2d 1018, 1020 (D.C. Cir. 1982)).    While appellant

established that a number of possible obstructions in the 3800

block of Old Dominion Boulevard existed, including at least four

trees, both the testimony of Bunney and the photos make clear

that Bunney's view of the transaction was unobstructed.
     Furthermore, the record contains significant evidence

corroborating the evidence that Bunney's view was not obstructed

and that the transaction occurred as Bunney reported it.     See

Davis, 25 Va. App. at 594, 491 S.E.2d at 291 (considering the

quality of corroborating evidence as a factor); Hollins, 19 Va.
App. at 227, 450 S.E.2d at 399 (same).    Bunney testified that he

saw appellant distribute crack cocaine to Brown.    While denying

that he had given crack cocaine to Brown, appellant admitted

passing a small object which he characterized as "a lit

cigarette," to a man standing with another on Old Dominion

Boulevard.    The men described by appellant matched the

description of the men Bunney observed, one of whom took part in




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the illegal transaction.   That appellant denied that the small

white object in question was cocaine does not materially detract

from the substance of the corroborating evidence.   Appellant's

testimony further corroborates Bunney's testimony that a

transaction involving the passing of a small white object to

another took place and confirms that Bunney was not obstructed

from observing the transaction.

     The other factors identified as relevant in Hollins, 19 Va.

App. at 227-28, 450 S.E.2d at 400, also support a finding that

appellant failed to show that he had a need for the information.

Bunney was elevated and used a vision-enhancing device; these

factors support the inference that Bunney could clearly see

appellant and the events in question.   Although the sun had gone

down, Bunney testified that the area was well lit by streetlights

and lights on the front of the buildings themselves.
     Looking at the relevant factors as a whole, we find that the

court did not err in denying appellant's motion to compel the

disclosure of the exact surveillance location.   Cf. Davis, 25 Va.

App. at 594, 450 S.E.2d at 291.

                   Sufficiency of the Evidence

     Appellant next contends that the evidence was insufficient

to support his conviction for distribution of cocaine.   Where the

sufficiency of the evidence is challenged on appeal, this Court

must consider all the evidence and any reasonable inferences

fairly deducible from it in the light most favorable to the




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Commonwealth.   Higginbotham v. Commonwealth, 216 Va. 349, 352,

218 S.E.2d 534, 537 (1975); Traverso v. Commonwealth, 6 Va. App.

172, 176, 366 S.E.2d 719, 721 (1988).   A trial court's judgment

will not be disturbed on appeal unless it is plainly wrong or

without evidence to support it.   Stockton v. Commonwealth, 227

Va. 124, 145-46, 314 S.E.2d 371, 385 (1984).

     Viewed in the light most favorable to the Commonwealth, the

evidence establishes that appellant distributed crack cocaine to

Brown.   Bunney testified that he saw appellant pour a rock of

crack cocaine into Brown's left hand, and saw Brown put the rock

into his left pocket.   When Brown was arrested, the police found

a rock of crack cocaine in his left pocket.    Even if, as

appellant contends, Brown threw the cocaine that he acquired from

appellant away as he saw the police approach, Bunney's testimony

that he saw appellant hand a rock of cocaine to Brown is

sufficient to support his conviction.
                                                         Affirmed.




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