James Edward MERCER v. COMMONWEALTH of Virginia.
Record No. 1897-14-2.
Court of Appeals of Virginia, Richmond.
March 22, 2016.
783 S.E.2d 56
J. Todd Duval (McDonald, Sutton & Duval, PLC, on brief), Richmond, for appellant.
Crаig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: HUMPHREYS, BEALES and ATLEE, JJ.
HUMPHREYS, Judge.
I. BACKGROUND
In March 2014, a Caroline County grand jury issued three indictments against Mercer for distribution of a Schedule I or II drug in violation of
At trial, Deputy Justin Cecil (“Deputy Cecil“) and Investigator Christopher Wright (“Investigator Wright“) of the Caroline County Sheriff‘s Department (“the Department“) testified for the Commonwealth. Deputy Cecil testified that controlled purchases were conducted by thе Department on September 27, 2013, October 8, 2013, and October 16, 2013. Investigator Wright testified that Mercer was the target of a controlled purchase operation and that the Department employed Charity O‘Connell as its confidential informant (“C.I.“). Prior to each controlled purchase, Investigator Wright searched the person of the C.I. and Deputy Cecil searched the C.I.‘s vehicle for any contraband. No contrаband was ever found in these pre-purchase searches. Also, for each controlled purchase, Investigator Wright equipped the C.I. with an audio wire and gave her $100 in order to purchase narcotics.
The September 27, 2013 and October 16, 2013 controlled purchases were conducted at
Each of the three narcotics purchases was submitted to the Department of Forensic Science (“DFS“) for analysis. Nancy M. Peace (“Peace“), a forensic scientist employed by DFS, was the only forensic scientist to sign each certificate of analysis associated with Mercer‘s case. All three certificates specified that the narcotics recovered in the controlled purchases were cocaine.
On March 24, 2014, prior to trial and in accordance with
strike the evidence against him. The circuit court оverruled Mercer‘s motion to strike. Mercer renewed his motion to strike the evidence, and the circuit court denied that motion as well. On June 26, 2014, the circuit court found Mercer guilty on three counts of distribution of a Schedule I or II drug, in violation of
On September 17, 2014, the circuit court sentenced Mercer to five years on each count with three years suspended for each. Thus, he must serve a total of 15 years’ incarceration, with nine years suspended. Two days after his sentencing hearing, on September 19, 2014, the King William County Commonwealth‘s Attorney, Matthew R. Kite, sent a letter notifying Mercer that Peace had been terminated for cause from DFS. Peace had been terminated by letter on August 11, 2014.1
On October 1, 2014, Mercer filed a motion to set aside the verdict and for a new trial arguing that his constitutional rights under Brady were violated because the Commonwealth had not made him aware of Peace‘s termination for cause from DFS. Thus, Mercer argued, doubt had been cast “upon the credibility of the analyst having signed the certificates of analysis [creating] a material issue, in that the nature and character of the drug being distributed is the corpus delicti of the crime.” The Commonwealth submitted its response, on October 6, 2014, noting that Mercer‘s trial occurred nearly two months before it became аware of Peace‘s termination; therefore, it could not have provided Mercer the information regarding Peace‘s termination prior to or during trial.
After learning of Peace‘s termination, the Commonwealth promptly requested that any substances tested by Peace in cases then pending trial be resubmitted for testing by another
analyst.2 Additionally, the Commonwealth reviewed Peace‘s personnel records
II. ANALYSIS
A. Standard of Review
On appeal, this Court “will state the evidence in the light most favorable to the Commonwealth, the prevailing
party at trial.” Bly v. Commonwealth, 280 Va. 656, 658, 702 S.E.2d 120, 121 (2010). Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-97. The Commonwealth‘s disclosure duty encompasses impeachment evidence as well as exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). It is now a settled principle that there are three components of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it impeaches a witness regarding a material fact; (2) that evidence must have been suppressed by thе State, either willfully or inadvertently, thereby denying a defendant its use at trial; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). “The accused has the burden of establishing each of these three components to prevail on a Brady claim.” Commonwealth v. Tuma, 285 Va. 629, 635, 740 S.E.2d 14, 17 (2013).
The first two Brady components require the evidence to be favorable to the defendant and to have been suppressed by the prosecution. The third Brady component is that the defendant must prove prejudicе. “Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). Prejudice, like materiality, is “defined as a ‘reasonable probability that the outcome would have been different had the evidence been disclоsed to the defense.‘” Deville v. Commonwealth, 47 Va.App. 754, 756-57, 627 S.E.2d 530, 532 (2006) (quoting Muhammad v. Commonwealth, 269 Va. 451, 510, 611 S.E.2d 537, 571 (2005)). A “reasonable probability” is a probability sufficient to under-
mine confidence in the outcome. Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995).
Mercer argues that the circuit court‘s ruling constitutes a violation of his Fourteenth Amendment rights under Brady v. Maryland because of the Commonwealth‘s failure to disclose evidence about the quality and reliability of the work by the lab technician who performed the certificates of analysis upon which the Commonwealth‘s case relied—even though the Commonwealth was not aware of the lab technician‘s employment status until two months after the trial, but one month prior to sentencing. Before continuing with a Brady analysis, we first consider if the evidence in question falls within the ambit of Brady. It does not for two reasons.
First, the point of the holding in Brady is to require disclosure of favorable evidence for possible use by the defense to avoid “an unfair trial to the accused.” 373 U.S. at 87, 83 S.Ct. at 1197. In Kyles, the Supreme Court of the United States made it clear that a prоsecutor must “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” 514 U.S. at 437, 115 S.Ct. at 1567 (citations omitted). Specifically, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government‘s behalf in the case, including the police.” Id. For the purposеs of this analysis, this Court assumes that DFS is included in the category of “acting on the government‘s behalf” and that the Commonwealth is charged with knowledge of DFS‘s actions. However, the earliest date for which the Commonwealth can be attributed the knowledge of Peace‘s termination for cause was August 11, 2014—the date of her termination letter. Since this date is two months post trial, the Commonwealth could not have provided Mercеr the information prior to or during trial because such information did not exist at that time. Simply put, the information was not available to the Commonwealth prior to trial; there-
fore, the Commonwealth could not make it available to the defendant.4
Second, the prong of Brady that would otherwise be applicable here is the possible impeachment of Peace, the forensic scientist that signed the certificates of analysis in Merсer‘s case. Mercer argues that had he “been made aware of the performance and reliability issues of Nancy Peace prior to trial, [he] would have objected to the admission of the certificates of analysis performed by her, request that she be made available to introduce the certificates, and asked for a jury trial.” However, Mercer fails to satisfy the first prong of Brady because the evidence is neither exculpatory nor would it constitute grounds for impeachment.
Initially, we note that the failure of Peace to identify controlled substances in three other unrelated cases is not exculpatory as to Mercer. Her performance as a scientist or technician in other cases does not establish that Mercer is innocent of these offenses, nor does the nature of it reduсe either the offense or the penalty that may be appropriate in this case. Regarding impeachment, Mercer concedes that he would not be able to introduce mistakes by Peace that occurred in unrelated cases. Rather, he simply asserts that his strategy would have been different, in that had he been made aware of Peace‘s employment status he would have objected to thе admission of the certificates of analysis, called Peace to
the stand, and asked for a jury trial.5 In this retrospective assessment,
Were we to adopt Mercer‘s argument in this case, this Court would have to assume impeachment, if even possible under the rules of evidence regarding the admissibility of relevant evidence, would be under a bias or prejudice theory. This is because Peace would be called as a government witness. This record reflects no bias or prejudice by Peaсe against Mercer. It goes without saying that we are all fallible and errors or mistakes can occur in any human endeavor but unless it can be shown that an error or mistake is material to a fact at issue in the case at bar, it has no more than speculative relevance.
Nevertheless, in Workman v. Commonwealth, 272 Va. 633, 647, 636 S.E.2d 368, 376 (2006), the Supreme Court of Virginia made clear that “admissibility at trial is not the final arbiter of any Brady violation.” Rather,
[w]hen assessing the materiality of inadmissible evidence, we apply the general Brady test and “ask only ... whether the disclosure of the evidence would have created a reasonable probability that the result of the proceeding would have been different.” Because of the requirement that the outcome of the proceeding be affected, we often consider whether the suppressed, inadmissible evidence would have led to admissible evidence.
Id. at 647-48, 636 S.E.2d at 376 (quoting United States v. Sipe, 388 F.3d 471, 485 (5th Cir.2004)).
However, the basis for Peace‘s termination was her failure to identify controlled substances that were present, not falsely identifying controlled substances where none existed. Thus, any bias theory would seem to operate in favor of Mercer rather than against him. The evidence in question here is not favorable to Mercer, and its disclosure would not have created a reasonable probability that the rеsult of the proceeding would have been different. The record does not indicate that Peace ever made a false positive drug analysis. Rather, her termination from DFS was due to three separate false negative readings.6 When a false negative drug screen occurs, a recovered substance that should have tested positive for narcotics is mistakenly read to be negative. Thus, the recоvered substance would not be reported as a Schedule I or II substance and the defendant would likely not be prosecuted for a narcotics related crime. The opposite occurs with a false positive drug reading. In a false positive drug reading, the analyst would indicate that a recovered item tested positive as a controlled substance, when, in reality, it was not an illegal substance at all.
Thе suppression of evidence of an analyst‘s history that demonstrated previous instances of false positive drug screens might be evidence favorable to the defendant because it would show that the analyst had a history of indicating a recovered item was controlled and illegal when it was not. The effect of such findings could subject a defendant to conviction of a crime for which the proof may be inаccurate. However, a history of false negative readings, like Peace‘s, only indicates that she found recovered substances not to be a controlled substance when, in fact, they were.
Any fault Mercer desires to attribute to Peace‘s analyses in other cases is not beneficial to him. Without undisclosed favorable evidence, a Brady violation cannot occur.
It is also clear from this record that Mercer failed to meet his burden that the “suppression of evidence ‘undermines confidence in the outcome of the trial.‘” Workman, 272 Va. at 645, 636 S.E.2d at 375 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381). Here, the record supports confidence in the outcome of the trial.
First, every drug analysis performed by DFS is required to undergo full technical peer review of the data before a certificate of analysis can be released. The state has implemented this precautionary procedure in ordеr to determine whether the original analyst‘s finding is supported by the data. It was this quality control procedure that uncovered the deficiencies in other cases and there is no evidence that DFS‘s mandatory quality control procedure was not followed in this case. Second, no evidence was presented that Peace ever misidentified anything as a controlled substance that was not; rather, the evidenсe shows that her errors were in failing to identify the presence of a controlled substance. Third, each of the thirty-five substances previously tested by Peace that were resubmitted for testing by another analyst returned the same result as Peace had originally found.
Therefore, we conclude that, in this case, confidence in the verdict remains intact, regardless of Peace‘s post-trial termination, becausе no reasonable doubt exists that the three certificates of analysis returned in Mercer‘s case were accurate in Peace‘s conclusion that they tested positive for cocaine. Also, there is no indication in the record that the substances submitted to DFS were not recovered by the Department during its controlled purchase operation targeting Mercer. Regardless of the allegatiоns surrounding Peace, the Commonwealth proved that Mercer distributed a Schedule I or II controlled substance on three separate occasions. Thus, Mercer has failed to meet the third prong of the Brady analysis that prejudice resulted from favorable evidence that was suppressed by the government.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court that there was no Brady violation and cоnclude that Mercer‘s motion to set aside the verdict and for a new trial was properly denied.
Affirmed.