*1 Lindsay Alan BLY Virginia. COMMONWEALTH Record No. 2948-07-3. Appeals Virginia,
Court of
Richmond. Sept. 2009. *2 Haine, Defender, Ross S. Assistant Public for appellant. (Wil General Smith, Attorney Assistant Special Richard B. brief), General, Mims, appellee. Attorney C. liam ELDER, FRANK, C.J., FELTON, Present: HALEY, McCLANAHAN, KELSEY, HUMPHREYS, ALSTON, BEALES, JJ. PETTY, POWELL EN BANC REHEARING UPON A McCLANAHAN, Judge. of distribut- in a bench trial Alan was convicted
Lindsay distributing meth- controlled substance an imitation ing appeal, § On of Code 18.2-248. both in violation amphetamine, motion for a denying court erred in the trial Bly contends failed to Commonwealth grounds new trial on concerning the confidential evidence impeachment disclose *3 him, in of v. against testified violation informant who (1963). 83, 1194, 10 S.Ct. L.Ed.2d Maryland, 373 U.S. with and reversed Bly of Court majority agreed A this panel a for granted petition of the trial court. the decision We stayed panel and the mandate en banc rehearing banc, affirm the trial court. en we Upon rehearing decision.
BACKGROUND to “light favorable” review the evidence in the most We party below. prevailing Commonwealth as the the Common (2003) Hudson, 514, 781, 578 S.E.2d wealth v. 265 Va. omitted). (citations requires to “discard the principle That us the Common in conflict with that of evidence of the accused wealth, all credible evidence favorable as true the regard may that be and all fair inferences to the Commonwealth 41 Va.App. Kelly drawn therefrom.” banc) (2003) (internal (en quotation 444, 446 omitted). citations marks and from an arose inves- drug convictions
Bly’s two distribution Drug Task Rockbridge Regional the tigation conducted (“Task Force”), Slagle, of comprised Investigators Force time, the Task Force McFaddin, Conner. At Mays, and informant, was Robert as a confidential using Hoyle, to make drug suspected from “buys” illegally individuals of selling controlled substances.
May 2004 Offense On May Slagle trial, as Investigator testified at the members of the Task Force Hoyle preparation met with purchase a from the Bly. meeting, of cocaine At “thor- Slagle oughly” Hoyle searched “to make illegal sure he had no already contraband on his person,” money. no After none of those items were found on Hoyle, fifty was given dollars money” “marked with which make purchase. the Task Force members Hoyle then drove area the an near of apartment back the in the of building City Buena Vista location, where Hoyle lived. From Slagle observed walk to porch building. the back the Slagle Bly, then saw who was standing on the back porch “actually greeted” Hoyle upon his Slagle arrival. saw Bly’s standing also wife the back porch Thereafter, at the Slagle same time. watched , wife, and Hoyle, along Bly’s with enter back entrance of the apartment building together. Bly’s been Having apartment during a previous investigation, Slagle explained apartment first one on left back of the building. entrance
Slagle further testified that Hoyle was only apart- ment building “approximately Upon three minutes.” exiting the building, walked back to the vehicle where Task Force members were waiting, and entered the vehicle. then “produced bag small powder” white that “look[ed] *4 cocaine,” like powder and stated that he purchased it from Bly. Hoyle turned the Investigator contraband over to McFad- time, din. At that Slagle Hoyle searched for other contraband and money on his person and found Slagle none. later laboratory analysis obtained a the of “white powdery sub- stance,” which imitation, i.e., revealed it was an it contained no controlled substance.
Hoyle explained likewise testimony that on May 2004, while working as a confidential informant for the Task what was Force, Bly’s apartment from purchased he that, beforehand, He also reiterated cocaine. purportedly drugs him and searched for thoroughly Task Force members had, him to a he and then delivered of which money, none Hoyle further testi- building. Bly’s apartment location near of the contra- subsequently purchase fied he made that Force, from the Task money he received from with band building within Bly’s apartment out that he was of minutes, he immediately to three approximately two substance he bagged Task Force the turned over again searched. Bly, from and that he was received June 200&Offense met Investigators Mays and Conner Then June testified, for the Hoyle, investigators with as both of these drug Bly, from Hoyle’s “buy” of second purpose arranging At this methamphetamine purchase. to be a which was “money Mays Hoyle a meeting, [and] conducted search Mays the search explained narcotics” found none. into [Bly’s] pockets, He “just pat-down.” “[went] was not a off; his emptied; his shoes taken [were] his pockets [were] waistband, checked; anywhere area [were] [he] crotch ... feasibly something hide checked.” [was] could hundred dollars of Hoyle then one Mays gave Conner him to purchase, to make the and delivered money “marked” They building. an that led to watched alley apartment apartment building they as Hoyle alley walk down the to the They next directly building. drove to a location behind the building, and apartment observed enter back eight minutes later. building then exit the seven vehicle, Conner a and Conner’s and handed Mays’ returned substance,” containing rock-like which “baggie” “pink, small Bly. Concluding operation Hoyle said purchased Hoyle, drugs “found no by conducting a final search Conner baggie, revealed that Laboratory analysis on him.” II I or con- fact, methamphetamine, a Schedule contained trolled substance. *5 Conner, of testimony Mays Hoyle
Consistent with and 2004, 3, June working testified that on while still a confi- as Force, purchased dential informant with the Task he “meth” Bly that, Bly’s apartment. at He also confirmed as “buy,” with the earlier Task member of the Force searched beforehand, him gave money him to make purchase. Hoyle further he not “surprise[d]” by indicated was the “ac- tual Task Force numbers” showed he was in apartment building “approximately seven minutes.” Before entering Bly’s this apartment “buy,” second also Hoyle explained, he walked upstairs knocked on the apartment door another resident whom with he was but acquainted, one adding was there”—thus time in “[n]o was apartment building. defense,
Bly testified in his own and denied even seeing 3, 2004, on May either 2004 or June after claiming to specific fact, have recollection days. of those two In Bly further stated in that earlier 2004 he told stay away (which from the apartment where building Bly lived he also managed purportedly parents) for his “I serving or will be papers you” and that Hoyle “complied.” Bly When was drug arrested on the distribution charges, he Investigator admitted to “buy[s] that he Slagle drugs” weed,” but “smoke[s] denied that he any.” “sells He also admitted to Slagle occasionally weed, that he “smokes or dope, brother,” with his Corporation, who worked Dana during his brother’s convicted, lunch hour. Bly subsequently in a trial, i.e., bench on each of the drug charges, distributing an imitation on May controlled substance and distribut- ing methamphetamine on June in violation of Code § 18.2-248. sentenced,
Before filed being a motion to set aside the grant convictions and him a new trial. He contended motion violation Brady, failed disclose that Hoyle, working while for the Task Force as a cases, paid informant numerous “was lying about at least claiming some he was buys to have made.” In support letter, August of a dated copy filed a allegation, of this *6 Rockbridge for Attorney the Commonwealth’s from case. criminal The attorney pending in another County to an in the letter that it Attorney represented Commonwealth’s for discovery in counsel’s motion to defense response was in connection to Hoyle, about requested addressed information provid- specifically the Task Force. letter his work with ed, as in follows: part, relevant your Motion for my response this letter as
Please treat captioned in Inspection filed the above Discovery and case — 2004, Robert January, August, Hoyle
Between Drug for Task Force buys made a total of 83 controlled the Vista____ City in and the of Buena Rockbridge County Motion, your F of and some of respect paragraph With know, alleged pur- that he made you already Hoyle which 16th, controlled on June 15th chases of substances Rockbridge County. Area in the South River of [J.B.] indictment, returned the charged by was direct [J.B.] 1, 2004. arrested on or Jury Grand on November was [J.B.] it was discovered about November at which time custody Rockbridge in in the Regional that he was [J.B.] alleged. not the sale Jail and could have made as one McFaddin advises that there was other Investigator Hoyle in an substance from purchased illegal incident which in (Hoyle) identified as certain individual someone Vista, Force Virginia. Buena One Task Officers in that another thought they may have seen same individual Hoyle same that said he made the location at the time Hoyle sent back to the location of the purchase. seller, try to confirm his identification of but purchase to instance, one In this no advised that no came to door. charges placed against suspect. were ever motion, Bly’s Bly presented no additional hearing At the on support no in his He proffer evidence and made motion. letter for its only relied on the contents of the above-stated Hoyle’s purported impeachment challenging value credibili- ty. Hoyle He the letter evidenced lied contended about drugs purchasing from at least two individuals—J.B. and an In person. arguing unidentified the “sole issue” asserted, Bly’s case was counsel Hoyle’s credibility, wrongly, ... that no one than “testified Hoyle they other at trial saw Mr. atBly [Bly’s] residence when ... was sent in buy drugs----”1 His counsel also advanced following “theory” of innocence: likely
What are alleging happened we most is that somewhere, has person secreted his probably crotch, soda, a little baggie baking something or along lines, in, those and he Task buy money, goes takes Force baking money, switches the soda the buy puts buy *7 crotch, money in his back walks out and hands the Task soda, baking Force or does sell his own drugs.
In response, that, Attorney Commonwealth’s indicated “even though [he] didn’t have actual knowledge” the infor- J.B., mation in letter regarding the information “should asserted, have been disclosed” to He Bly. however, further that it have would made no difference in the outcome of the case. He that Task proffered Force officers and the informant testify would that it was a mistaken “case of identi- ty.” As for the other reference in the letter to the unidenti- fied that individual a Task officer Force have seen ... “might location,” in a different Attorney the Commonwealth’s stated that this assertion was “so that it vague” “really amount[ed] nothing.” Bly’s He also challenged contention that the sole Hoyle’s issue at trial was credibility, in light of Common- wealth’s other evidence rejection and the court’s of Bly’s alibi defense his solely testimony. based on own Finally, in regard innocence, to Bly’s theory of the Commonwealth’s Attorney “just fiction,” responded that it was pure given there was no evidence to it. support explained, supra, Investigator Slagle 1. Bly As testified that he saw meet Bly's apartment building Hoyle’s the entrance to time of at the "drug buy” Bly. first history and criminal prior had no Recognizing informant was an fact that over the concern expressing dismissed, court the trial that had been some cases in at least placed under advisement a new trial motion for took terms of violated the After supervised probation. him on motion pending court denied the trial probation, imprisonment. term of him to a sentenced
ANALYSIS
is deter
violation
Brady
which a
principles
The
prosecution’s
Brady,
Under
established.
mined are well
due
accused “violates
to an
evidence favorable
suppression
or to
guilt
either to
is material
the evidence
where
process
of the
faith or bad faith
good
of the
irrespective
punishment,
A
at 1197.
Here, on the nondisclosure Bly relies 17, from the 2005 letter August regarding tion advancing Attorney for Commonwealth’s Rockbridge County have been the information could Bly argues claim. it. without prejudiced and was impeach used to did not Commonwealth, prosecution that the conceding while arguably it was Bly and that information provide the 10 him,
favorable to contends has Bly carry failed to his burden of showing he was prejudiced by its nondisclosure.
“When an exculpatory evidence claim is reviewed ‘[o]n appeal, the burden on appellant is to show that the trial court ” Commonwealth, erred.’ Gagelonia 99, 112, 52 Va.App. 661 502, (2008) S.E.2d 509 (quoting Commonwealth, Galbraith v. 734, 739, 633, (1994)). 18 Va.App. 446 S.E.2d 637 Based record, our along review with the Commonwealth’s concession, it is evident has established the compo- second nent of a Brady violation—the prosecution’s nondisclosure of the disputed information. Assuming, arguendo, Bly has also i.e., established the first component, that the information was favorable impeachment evidence,2we conclude he has failed to prejudice, establish component third of Brady.
The trial court rejected Bly’s Brady claim when it
trial,
denied his motion for a new
and then sentenced him on
“
his two drug convictions from his bench trial.
‘Absent clear
evidence to the contrary
record,
in the
the judgment of a trial
court comes to us on appeal with a presumption that the law
correctly
applied to the facts.’” Caprino v. Common
wealth,
181, 184,
53 Va.App.
36,
(2008)
670 S.E.2d
37-38
(quoting
Commonwealth,
Yarborough v.
971, 978,
217 Va.
234
286,
(1977));
S.E.2d
291
Commonwealth,
see Groves v.
50
57, 61-62,
Va.App.
28,
(2007) (“This
646 S.E.2d
30
means the
‘judge
presumed
is
to know the law and apply it
correctly
”
each
case.’
(quoting Crest v.
165,
40 Va.App.
3,
(2003))).
172
88,
n.
578 S.E.2d
91 n. 3
Bly points to no such
evidence
the record
Thus,
to rebut this presumption.
2. We do not decide whether the information in the letter was admissi
evidence,
Allen,
impeachment
222, 229,
ble
see Gamache v.
268 Va.
(2004) (addressing
S.E.2d
impeachment
what constitutes
evidence), and,
not,
if
whether
established it would lead to
evidence,
impeachment
exculpatory
admissible
or
see Workman v. Com
monwealth,
633, 648,
(2006)
272 Va.
636 S.E.2d
(addressing
requirement
"proffer!
to at least
] admissible evidence that would
have been discovered” had defendant known of the undisclosed infor
manner).
Bartholomew,
timely
mation in a
5-6,
See also Wood v.
516 U.S.
7, 9-10,
(1995);
Deeds,
116 S.Ct.
Soering v.
Accordingly, as law,’ finds the arbiter of trier of fact and sitting as ‘both logical possi can be ‘no there inconsequential, evidence out have altered the disclosure ‘would bility1 that its earlier ” Id. at (quoting at 532 of the case.’ come (Del.1996)). State, That is 671 A.2d Stroik “[ujnder circumstances, because, hypothe we need not such have reacted to jury likely would size how a reasonable certitude, from the factfinder know with information. We new would not have himself, proceeding the outcome Id. earlier.” been disclosed different had the evidence been Deville, court cannot However, “a trial explained as further ipse dixit denial of prejudice. review an appellate foreclose if no ‘rational must fail original finding guilt Just as the factual finding, so too have made such a trier of fact’ could if unrea patently be set aside prejudice no should finding of omitted). (internal review of Id. From our citations sonable.” case, judge’s say we cannot the record this by the Com prejudiced was not finding presumptive regarding information failure to disclose the monwealth’s unreasonable. patently trial, only testimony not the court heard At Bly’s apartment “drug buys” Hoyle regarding working as a confiden- 2004 while May 2004 and June Force, the court also heard for the Task tial informant members, Investigators Slagle, three Task Force testimony of with those Conner, directly were involved who Mays, Hoyle was investigators’ testimony, According to the “buys.” money both before drugs and thoroughly searched for *10 Hoyle after each of the transactions between which Bly, Hoyle’s During intervening included a search of crotch. Hoyle only was out of the Task Force members’ period, sight Bly’s for the brief he was in period apartment building making “drug buy,” which was no more than three minutes during the first transaction eight during minutes the second that, Investigator Slagle transaction. also testified at the time transaction, actually Bly “greet” Hoyle of the first he saw Bly’s the back of before porch apartment building Bly, along wife, Bly’s Hoyle building. with escorted into the defense, Bly testify The trial court also heard in his own which during unequivocally he denied even seeing Hoyle at 17, 3, Bly’s apartment building May on either 2004 or June 2004, and claimed to have been somewhere else when the meetings Hoyle with were to Bly have occurred. further testified that earlier in Hoyle 2004 he had directed to stay (which away apartment from the building Bly where lived purportedly managed) and that “complied.” At least as 17, 2004, to the events May Bly’s testimony of directly contrary not to only Hoyle’s testimony, but to that of Investi-
gator
finder,
Slagle, as well. As fact
the trial court was
entitled
disbelieve
self-serving testimony and conclude
Commonwealth v.
“lying
that he was
to conceal
guilt.”
Duncan,
377, 385,
210,
(2004);
267 Va.
593 S.E.2d
Shack-
215
Commonwealth,
196, 209,
262 Va.
547 S.E.2d
907
leford
Commonwealth,
(2001);
Marable v.
505, 509-10,
27 Va.App.
(1998).
235
S.E.2d
Furthermore,
there
presented
was no evidence
in this case
support Bly’s theory
that Hoyle
drugs
had either
or baking
soda of his own hidden in his crotch the two times he allegedly
buy drugs
met with
produced
that he then
hidden substance to the Task Force when he returned from
each of the alleged
transactions—with
having made no
purchase
actual
of drugs or an imitation
substance from
“
on either occasion.
‘The
only
Commonwealth need
exclude
hypotheses
reasonable
of innocence that flow from the evi-
dence, not
those that spring
imagination
from the
defendant.’” Ward v.
733, 751,
47 Va.App.
(2006)
(quoting Hamilton v. Common
627 S.E.2d
(1993)).
wealth,
27, 29
Va.App.
433 S.E.2d
during
judge’s
we do not view the trial
comments
Finally,
trial, acknowledging Bly’s
a new
hearing
on the motion for
of cases where
history
of a criminal
and the dismissal
lack
informant,
undermining
validity
as
Hoyle was an
so,
To do
in view of the
judge’s
denial of the motion.
to “fix
totality
presented,
upon
of the record here
would be
full
judge
the trial
taken out of the
isolated statements of
made,
as a
they
predicate
context in which
were
and use them
misapplied,”
the law has been
which we will not do.
holding
Yarborough,
CONCLUSION our review of both the evidence at trial and Upon presented dispute, undisclosed information in we conclude the trial court, reasonably rejected Bly’s Brady The court claim. therefore, in denying Bly’s did not err motion for a new trial. Accordingly, we affirm convictions.
Affirmed.
FRANK, J.,
HUMPHREYS, PETTY,
with whom
HALEY
JJ.,
ALSTON,
join, dissenting.
and
Brady
I do not
failed to demonstrate a
agree
appellant
Therefore,
I respectfully
analysis
violation.
dissent from the
case.
judgment
this
Brady
government
“A
violation occurs when the
fails
materially
disclose evidence
favorable
to the
accused.”
867, 869,
Youngblood
Virginia,
v. West
547
126
U.S.
S.Ct.
(2006)
2188, 2189-90, 165
(citing Brady Mary-
v.
L.Ed.2d 269
land,
83, 87,
1194, 1196-97,
373 U.S.
83 S.Ct.
“There are three
of a true
violation: The
accused,
be
evidence at issue must
favorable to the
either
exculpatory,
impeaching;
because it is
or because it is
State,
evidence must have been
suppressed
either
willfully
inadvertently;
or
must have
prejudice
ensued.”
Greene,
263, 281-82, 119
1936,1948-
Strickler v.
527 U.S.
S.Ct.
(1999).
shown,
Prejudice
ond of a component arguendo, violation and that he has also established the first. The only component at issue, therefore, is the third—whether prejudice ensued. “ Prejudice is ‘a reasonable probability that the outcome of the proceeding would have been different had the evidence been ” disclosed to the defense.’ Deville v. *12 47 Va. (2006) 754, 756-57, 530, App. 627 (quoting S.E.2d Muham Commonwealth, 16, mad v. 269 Va. 619 S.E.2d (2005)). majority
The relies upon concept “judge that is presumed to know the apply correctly law and it each case.” 165, 3, Crest v. 40 Va.App. 172 n. (2003). 88, court, majority n. 3 The reasons that the trial by trial, denying appellant’s motion for a new made a factual determination that was not appellant prejudiced by the non- contrary, disclosure. To the an examination of the record judge demonstrates that the trial did his concerns as express prejudice to the suffered appellant. no majority preju-
While the concludes the trial court found dice, pronouncement hearing appellant’s its at the on motion 30, majority’s for a new trial on March 2006 belies the position.
The trial court stated: it, of the things really
[o]ne that bothers me about this man you doesn’t even have a traffic ticket. Have looked criminal He doesn’t I history? even have a traffic ticket. mean, me, they he’s If did got nothing. presentence on I’d in my background. have—I’d have traffic tickets This anything, ready man doesn’t have and we’re getting hang him, that, know, two felonies you on the word of a man we dismissed some cases. statement,
After making this the trial court continued the without hearing ruling on the issue and took the matter under advisement. This demonstrates a clear lack of confi- dence in the verdict. The trial court was obviously concerned reliability about the of Hoyle’s testimony.
The change, evidence did not and no new information came light, the interim after period hearing. only this development before the hearing on October some later, nineteen months appellant positive tested for marijuana. At the second in- hearing, appellant’s counsel quired procedural about the status of the case. The trial advisement, court “I responded: took the matter under didn’t find him him ... guilty,3 gave right a chance to do so basically if he’s violation today, going up we’re to end with a sentencing hearing is what going up we’re to end with.”
Appellant’s probation appellant officer testified that had not in contact kept marijuana. with her and had tested positive Hearing testimony, no explanation, with the trial court then denied for a appellant’s Appel- motion new trial. lant’s counsel attempted explain appellant’s behavior while the motion was under advisement was to the unrelated appears appellant guilty 3. It was found of the offenses on March part but the conviction order is not of the record. *13 stated trial. Counsel motion for a new underlying the
issue not affect the thirtieth should happened post-March “what’s The trial court Trial.” in the Motion grounds raised New mean, I said, than that. here on more and “we’re interrupted charges.” of those two distribution dispose to got we’ve still on sen- go forward prepared not counsel was Appellant’s trial, so the for a new on his motion hearing at this tencing stated, record sentencing “[t]he and continued the judge trial.” motion for a new overruling your I’m will show evidence that much attention to other majority devotes The However, important it is testimony. Hoyle’s corroborates 30, 2006, of March in its statements that the trial court note Hoyle’s on testimo- solely were based indicated the convictions testimony, corroborating it considered ny. If the trial court stated, ready hang two getting “we’re not have would defendant], ... of a man that we on the word felonies on [the did not the trial court apparent some cases.” It is dismissed corroborating evidence. consider of March the trial court’s statements majority relegates In to sustain the statements. order 2006 as isolated did, view, must, of those ignore significance majority it con- expressed the trial court’s contrary, To the statements. very why appellant reason it did not sentence cern was the 30, 2006, supervision under why put appellant it March case, “a chance to do why gave appellant it continued the right.” appellant’s when the trial court denied
On October trial, appel- frustration with expressed new it its motion for a him by of the “break” afforded taking advantage lant for not trial court. appellant’s from an examination of the record It is clear because, denied, majority speculates, not as the motion prejudice, of no but finding trial court made a factual complete supervision. to successfully because failed appellant again trial court never hearing, After March violation, other than to the merits of the addressed explanation. deny the motion without
17
The record is completely devoid of any evidence that
the
trial court considered the nondisclosed evidence and indicated
it would have reached the same conclusion with the
evidence. This is markedly
Deville,
different from
in
the facts
756,
531-32,
47
Va.App.
627 S.E.2d at
where
judge
the trial
stated, unequivocally
record,
and on the
that the nondisclosed
evidence would not have made such a difference as to create
any prejudice.
case,
In that
this Court stated that there is no
prejudice when “‘the trial judge
and,
was the trier of fact
upon learning
information,’
of the undisclosed
rules unequivo-
cally that
the impeachment
evidence “would have had no
impact’ on the factfinding underlying the defendant’s convic-
757,
tion.”
Id. at
[A] denial of Brady motion to vacate a predicated on an unequivocal finding no conviction—if prejudice in a bench trial—produces a result conceptually no different from that which would follow the granting of motion, the a reopening of the evidentiary record for the new admitted, evidence to be and a reinstatement of the earlier conviction order. added).
Id. (emphasis However, Deville, unlike in the trial judge in the instant case made no such finding. There is no evidence the record that the trial judge found no prejudice to appellant. To contrary, expressed doubt as to the veracity informant, of the which undermines confidence verdict.
Clearly, the trial court was bothered the Common- wealth’s failure to disclose the evidence regarding infor- fact, mant. In at the March 2006 hearing, the trial court expressed enough concern Hoyle’s about veracity that rather than sentencing appellant, the trial court took the matter At supervision. under placed appellant
under advisement and a one (approximately next on October hearing later), appellant’s motion trial court overruled years half However, was uncomfortable the trial court for a new trial. informant, never and it retreated veracity with words from the March The trial court’s own position. reliability of own verdict. doubt on the its cast hearing information failed to disclose material The Commonwealth preju- This nondisclosure appellant. favorable confidence the outcome appellant and undermines diced *15 reasons, For trial as the trial court. these implied in refusing grant erred I would conclude that the court I respectfully trial. therefore dissent. appellant a new