Opinion
Record No. 2948-07-3.
January 13, 2009. February 20, 2009.
Appeal from the Circuit Court of the City of Buena Vista Humes J. Franklin, Jr., Judge.
Ross S. Haine, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Richard B. Smith, Special Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Frank, McClanahan and Petty.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On January 22, 2009 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on January 13, 2009, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on January 13, 2009 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellee shall file an appellee's brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellee's brief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix previously filed in this case.
Lindsay Alan Bly (appellant) appeals his convictions, following a bench trial, for possession with intent to distribute an imitation controlled substance and possession with intent to distribute methamphetamine, in violation of Code § 18.2-248. On appeal, he contends that the trial court erred failing to grant him a new trial when it was discovered that exculpatory evidence known to the police was not disclosed to him prior to his trial. For the reasons that follow, we reverse and remand.
BACKGROUND
Under well established principles of appellate review, we view the evidence and all reasonable inferences deducible from that evidence in the light most favorable to the Commonwealth, the party prevailing below. Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence proved that in the spring of 2004, the Rockbridge Regional Drug Task Force used a confidential informant, Robert Hoyle, to attempt to purchase drugs from a house at 1805 Walnut Avenue in Buena Vista. The house was divided into four apartments. Appellant lived in an apartment on the ground floor of this house and acted as the landlord.
On May 17, 2004, task force members met with Hoyle, searched him, gave him $50 in marked money and a digital recorder. They dropped him off near the Walnut Avenue residence to buy drugs from appellant. Investigator Slagle testified that he watched Hoyle enter the apartment building. Hoyle was in the house for approximately three minutes. Hoyle returned to the task force car with a small bag of white powder. The powder contained no controlled substance.
Slagle testified that on one occasion, he saw Hoyle enter the residence with appellant, but he was not sure if that was on May 17 or June 3.
On June 3, 2004, Deputy Mays and Lieutenant Connor, also drug task force members, met with Hoyle, searched him, gave him $100 in marked task force money and a recorder. They told him to buy one gram of methamphetamine from appellant. Mays and Connor dropped off Hoyle several blocks from the Walnut Avenue address. From this spot, officers could not see the house. They drove around the block and watched Hoyle walk into the apartment building. Approximately seven minutes later, Hoyle returned to the task force vehicle with a small baggie of a rock-like substance, which he said he had bought from appellant.
Appellant was arrested on October 12, 2004. After his arrest, appellant told Investigator Slagle that he smoked weed but did not sell drugs.
On March 24, 2005, the trial court convicted appellant of both charges.
After the trial but before sentencing, appellant filed a motion for a new trial. The motion asserted that as early as November 12, 2004, Investigator Tony McFaddin, the chief investigator for the drug task force, knew that Hoyle had not given accurate information about purchasing drugs and/or imitation drugs from at least two defendants. The motion cited an incident where a person, J.B., had been arrested and charged with selling controlled substances to Hoyle on June 15 and 16, 2004. McFaddin learned that J.B. had been incarcerated on those dates and could not have made the sales as alleged by Hoyle. In another incident, Hoyle told police that he had purchased a controlled substance from a certain individual. A task force officer thought that he had seen that same person in another location at the same time Hoyle alleged he had made the purchase. Police sent Hoyle back to the location of the alleged drug buy to confirm his identification of the seller, but Hoyle stated that no one answered the door. No charges were filed against that individual.
On March 30, 2006, during oral argument on the motion for a new trial, the trial court expressed concern that appellant had no criminal record, not even a traffic ticket, "and we're getting ready to hang two felonies on him, on the word of a man that, you know, we dismissed some cases." The trial court took the matter under advisement and placed appellant under supervised probation.
On October 24, 2007, appellant was found to be in violation of his supervision because he had repeatedly tested positive for marijuana. The trial court then denied appellant's motion for a new trial and sentenced appellant on the two felony convictions.
STANDARD OF REVIEW
"'Motions for new trials based upon after-discovered evidence are addressed to the sound discretion of the trial judge, are not looked upon with favor, are considered with special care and caution, and are awarded with great reluctance.'" Johnson v. Commonwealth, 41 Va. App. 37, 43, 581 S.E.2d 880, 883 (2003) (quoting Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983).
The applicant bears the burden to establish that the evidence
(1) appears to have been discovered subsequent to the trial;
(2) could not have been secured for use at the trial in the exercise of reasonable diligence by the movant; (3) is not merely cumulative, corroborative or collateral; and (4) is material, and such as should produce opposite results on the merits at another trial.
Odum, 225 Va. at 130, 301 S.E.2d at 149 (citing Fulcher v. Whitlow, 208 Va. 34, 37-38, 155 S.E.2d 362, 365 (1967)). As such, the trial court's decision will be reversed only upon an abuse of discretion. See Mundy v. Commonwealth, 11 Va. App. 461, 481, 390 S.E.2d 525, 536, aff'd on reh'g en banc, 399 S.E.2d 29 (1990).
It is not contested that the information in question is after-discovered evidence. At the hearing on appellant's motion for a new trial, the Commonwealth stated, "And I would concede that that information, even though I didn't have actual knowledge of it, would be chargeable to me and should have been disclosed. I concede that."
ANALYSIS
"A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused." Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). The United States Supreme Court has held thatBrady obligations extend not only to exculpatory evidence, but also to impeachment evidence, United States v. Bagley, 473 U.S. 667, 676 (1985), and that a Brady violation exists even when the government fails to divulge evidence that is "known only to police investigators and not to the prosecutor," Kyles v. Whitley, 514 U.S. 419, 438 (1995). "[T]he 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. at 437.
"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Evidence is material "'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at 280 (quoting Bagley, 473 U.S. at 682). However, it is not necessary to demonstrate "by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Kyles, 514 U.S. at 434. A conviction must be reversed if the accused shows "that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."Id. at 435.
The Commonwealth is correct in its assertion that specific acts of untruthfulness or other bad conduct are not admissible for impeachment. However, the law extends further than these limitations. Even if we did not find this evidence admissible, it would still be material. Admissibility is not the final arbiter of a Brady violation.
Evidence may be material under Brady even though it is inadmissible. When assessing the materiality of inadmissible evidence, we apply the general Brady test and "ask only . . . whether the disclosure of that 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.
Workman v. Commonwealth, 272 Va. 633, 647, 636 S.E.2d 368, 376 (2006) (quoting United States v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004) (citing Felder v. Johnson, 180 F.3d 206, 212 (5th Cir. 1999))); see also United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002) ("'[I]nadmissible evidence may be material under Brady.'" (quoting Spence v. Johnson, 80 F.3d 989, 1005 n. 14 (5th Cir. 1996)); Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999) ("Inadmissible evidence may be material if the evidence would have led to admissible evidence."); Coleman v. Calderon, 150 F.3d 1105, 1116 (9th Cir. 1998) ("To be material, evidence must be admissible or must lead to admissible evidence."); United States v. Phillip, 948 F.2d 241, 249 (6th Cir. 1991) ("Certainly, information withheld by the prosecution is not material unless the information consists of, or would lead directly to, evidence admissible at trial for either substantive or impeachment purposes."). In this case, if appellant had been aware of the two incidents where the informant gave unreliable information, he could certainly have used this to further investigate the informant's reputation for truth.
The Commonwealth cites Jefferson v. Commonwealth, 27 Va. App. 477, 487, 500 S.E.2d 219, 224 (1998), to assert that the omission of this evidence is not material. However, Jefferson is factually very different from this case. In Jefferson, the Commonwealth did not disclose a statement from an eyewitness to a shooting that she could not see without her glasses. See id. at 481, 500 S.E.2d at 221. However, there were three other eyewitnesses who testified that they saw the defendant shoot the victim. Id. at 482, 500 S.E.2d at 222. This Court ruled that faced with such overwhelming evidence of guilt, there was nothing in the record to show that the nondisclosed information was prejudicial or material to the defendant. Id. at 488, 500 S.E.2d at 225. However, in this case, there are no other eyewitnesses.
Certainly, officers twice observed the informant enter appellant's apartment building, and the informant returned with substances that he claimed to have purchased from appellant. On one, but not both, of those occasions, a task force officer said he saw the informant enter the apartment building with the appellant. However, this proves nothing. Appellant's residence had four apartments, and no one saw which apartment the informant entered. In fact, Hoyle admitted on cross-examination that he attempted to visit another resident in the building prior to making the alleged purchase from appellant.
No one observed what, if anything, occurred between the informant and appellant. Appellant was convicted based on the testimony of the informant, whose reliability was later called into serious question by the nondisclosed information and by the trial court. Unlike in Jefferson, there was no overwhelming evidence of guilt in this case. On only one of the two alleged offense dates was there any evidence that appellant was even present at the apartment building. The only evidence that connected appellant to the sale of narcotics was Hoyle's testimony.
We find that there is a reasonable probability that if the evidence in question had been turned over to appellant, the result of the proceeding would have been different. Indeed, the trial court itself commented on the questionable credibility of the informant.
The Attorney General now complains that appellant made no proffer and did not indicate specifically how the after-discovered evidence would either be admissible or lead to admissible evidence. Essentially, the Commonwealth argues that the Brady issue was not preserved below, because the defendant failed to show how the evidence was exculpatory. However, the trial court was fully aware that the issue before it was a potential Brady violation. Furthermore, at the hearing on defendant's motion for a new trial, the Commonwealth's Attorney stated, "And I would concede that that information, even though I didn't have actual knowledge of it, would be chargeable to me and should have been disclosed. I concede that point. But we've still got to get past a harmless error." The Commonwealth's Attorney went on to say that other evidence corroborated the informant's allegations.
The Commonwealth, in making this statement, conceded two of the three key components of a Brady violation — that the information was favorable to the accused, either because it was impeaching or because it was exculpatory, and that the evidence had been suppressed by the state, albeit inadvertently. The Commonwealth took those factors off the table by conceding that the evidence should have been disclosed. At that point, the only issue was prejudice to the defendant. The Commonwealth used the term "harmless error," but it is clear that the Commonwealth's argument was only that there was no prejudice to appellant.
In this case, the Commonwealth's argument below addressed only prejudice. The Commonwealth conceded the other two components that are required to establish a Brady violation. These concessions obviated the need for the defendant to make a proffer as to the nature of the evidence. For the Commonwealth now to argue the issue is defaulted runs counter to its earlier position. "A party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory."Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006).See also Johnson v. Commonwealth, 26 Va. App. 674, 683, 496 S.E.2d 143, 147 (1998) (The Commonwealth conceded at trial that no regulatory scheme existed to permit application of the administrative search exception to the warrant requirement. "Therefore, the Commonwealth is barred from asserting the exception as a basis for affirmance on appeal.").
The trial court was clearly bothered by the Commonwealth's failure to disclose the evidence regarding the informant. In fact, the trial court initially expressed enough concern about the informant's veracity that rather than sentencing appellant, the trial court took the matter under advisement and placed appellant under supervision. At the next hearing on October 24, 2007 (approximately one and a half years later), the trial court overruled appellant's motion for a new trial. However, the trial court's own words from the original sentencing hearing cast doubt on the reliability of the verdict.
The Commonwealth failed to disclose material information that was favorable to appellant. This nondisclosure prejudiced appellant and undermines confidence in the outcome of his trial.
CONCLUSION
For the foregoing reasons, we conclude that the trial court erred in refusing to grant appellant a new trial. We reverse appellant's convictions and remand the case for a new trial if the Commonwealth be so advised.
Reversed and remanded.
I do not agree that the materiality requirement under Brady was established in this case. At the very least, appellant was required to "proffer[] admissible evidence that would have been discovered" had he known of the undisclosed information in a timely manner. Workman v. Commonwealth, 272 Va. 633, 648, 636 S.E.2d 368, 377 (2006). With not even a proffer, appellant certainly did not meet his burden to raise more than a "'"mere possibility that an item of undisclosed information might have helped the defense."'" Id. (quoting Soering v. Deeds, 255 Va. 457, 465, 499 S.E.2d 514, 518 (1998) (quoting United States v. Agurs, 427 U.S. 97, 109-10 (1976))). Appellant must show how the disclosure of the inadmissible evidence at issue "would have led to the discovery of exculpatory evidence which would have been admissible at trial." Taylor v. Commonwealth, 41 Va. App. 429, 434-35, 585 S.E.2d 839, 842 (2003). Evidence that "does not lead to admissible exculpatory evidence cannot violate Brady because there is no 'reasonable probability' that its disclosure would have affected the trial."Id. (quoting Wood v. Bartholomew, 516 U.S. 1, 5-6 (1995) (noBrady violation for failure to disclose polygraph test that was inadmissible under state law)).
For these reasons, I would affirm appellant's convictions. I therefore respectfully dissent.