91 Va. Cir. 485
Richmond County Cir. Ct.2016Background
- Defendant convicted after a bench trial on multiple drug and firearms charges on February 2, 2012, and sentenced to seven years.
- Convictions followed a search, seizure, and arrest prompted by a confidential informant’s tip to Detective Norton.
- Defendant and the Commonwealth agree Detective Norton made false representations about the informant’s history and reliability; parties stipulated his actions were fraudulent by clear and convincing evidence.
- The court considered whether Norton’s misconduct was intrinsic or extrinsic fraud and whether the convictions are void ab initio and subject to collateral attack after 21 days.
- Detective Norton also had a documented pattern of perjury in other cases concerning informant reliability, which was unknown to Defendant and prevented impeachment or independent verification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Detective Norton’s false testimony about the informant is intrinsic or extrinsic fraud | Norton’s perjury is typical witness falsehood (intrinsic); should not void verdicts | Norton’s falsehood and pattern of perjury prevented fair adjudication and impeachment (extrinsic) | Court: extrinsic fraud — perjury prevented fair submission of issues to the court; convictions vacated |
| Whether pervasive perjury by an officer in other cases can render convictions void | Perjury in other cases irrelevant to this proceeding | Officer’s undisclosed pattern prevented impeachment and verification here, constituting extrinsic fraud | Court: perjury in other cases contributed to extrinsic fraud because it impeded discovery and impeachment |
| Whether convictions are void ab initio and subject to collateral attack after 21 days | Convictions should stand despite perjury | Convictions are void and may be collaterally attacked because fraud was extrinsic | Court: Vacated February 2, 2012 convictions and allowed collateral attack (voidable due to extrinsic fraud) |
Key Cases Cited
- Gray v. Commonwealth, 233 Va. 313, 356 S.E.2d 157 (1987) (recognizes Commonwealth’s privilege to protect identity of mere tipster informants)
- Keener v. Commonwealth, 8 Va. App. 208, 380 S.E.2d 21 (1989) (distinguishes active participant informants from mere tipsters entitled to confidentiality)
- Gulfstream v. Britt, 239 Va. 178, 387 S.E.2d 488 (1990) (misrepresentations that prevent fair submission of issues may constitute extrinsic fraud)
- United States v. Fisher, 711 F.3d 460 (4th Cir. 2013) (police perjury undermines public confidence and can justify relief)