Opinion
Record No. 2405-92-2
April 5, 1994
FROM THE CIRCUIT COURT OF HENRICO COUNTY JAMES E. KULP, JUDGE
Elizabeth Dashiell Scher (Morchower, Luxton Whaley, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon a rehearing en banc, we vacated Donald M. Clodfelter's conviction for distributing Dilaudid in violation of Code § 18.2-248 and remanded the case for the trial court to determine whether a police officer's notes, made during a debriefing of a prosecution witness, were "sufficiently material . . . to establish a reasonable probability that, had the [evidence] been disclosed, the results of the trial would have been different." On remand, the trial court found that Clodfelter failed to establish that the notes were material to warrant a reversal of the conviction. Accordingly, the trial court reinstated Clodfelter's conviction. On appeal from that ruling, we affirm.
Terri Spence agreed to testify against Donald Clodfelter. As part of that agreement, the Commonwealth's attorney agreed to recommend reduced sentences for Spence for six drug convictions. Agent Robert G. Kemmler debriefed Spence before Clodfelter's trial and made notes of the debriefing. In response to a Brady discovery motion, the Commonwealth did not produce Kemmler's notes before Clodfelter's trial. The Commonwealth took the position that Kemmler's notes concerning Spence were not exculpatory. On appeal, we vacated Clodfelter's conviction and remanded the case for the trial court to determine whether Kemmler's notes contained material exculpatory evidence that the Commonwealth had withheld from Clodfelter.
Brady v. Maryland, 373 U.S. 83 (1963).
On remand, the trial court determined that although some discrepancies existed between the information in Kemmler's notes and Spence's testimony, the discrepancies were not material and would not have produced a different result had they been available before trial. Spence testified at trial that she had been involved with drugs over the last couple of years; Kemmler's notes indicated that Spence had told him that she had experimented with drugs in 1974, and his notes suggest that she had a long history of drug use. Spence testified that she had met James Sprouse, the main drug supplier, through Clodfelter; Kemmler's notes indicate that Spence told him that she probably met Sprouse through another person.
At the remand hearing, defense counsel argued that, had she reviewed the notes at or before trial, she would have more effectively conducted her cross-examination and more thoroughly impeached Spence's credibility. The trial court found the trial record "replete with the examination of Ms. Spence about her drug dealings and about her agreements with the Commonwealth." The trial judge concluded:
[there is] no reasonable probability that if . . . these notes had been disclosed to the Defense, that the result of these proceedings would have been different. The only thing that these notes would have done, would have been perhaps to flush out names and dates of specific references to criminal conduct. . . . [T]his witness, Ms. Spence, was impeached every way known to man. She had convictions . . . for the sale and distribution . . . [of] heroin and Dilaudid. . . . The Court finds that these notes would not have added anything, except simply cumulative information about some additional drug possessions. Those, in the Court's mind, would not have undermined her credibility any more than the thirty pages of cross-examination, which was done in this case.
Undisclosed evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). "The mere possibility that an item of undisclosed information might have helped the defense . . . does not establish 'materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-10 (1976).
During cross-examination of Spence, without the benefit of Kemmler's notes, Spence admitted buying drugs, committing grand larceny, committing forgery, selling Dilaudid, heroin, and Percocet, and distributing Tussenex and marijuana. The jury was informed that Spence made an agreement with the Commonwealth, that she had a long list of drug convictions that could send her to prison for three life terms, and that she hoped that, by testifying against Clodfelter, she would get all her impending sentences suspended. The jury was told that Spence was a known drug dealer who controlled the source of Dilaudid. Defense counsel forced Spence to admit that she "said something [to the police] directly contradictory to what [she] . . . told [the] jury." Nevertheless, the defense contends that this additional information may have been sufficient to have persuaded the fact finder to discredit Spence totally. However, in the words of the trial judge, "this witness . . . was impeached in every way known to man."
While Kemmler's notes suggest some discrepancies between Spence's testimony and what she told him, we concur in the trial court's ruling that no reasonable probability exists that the notes would have altered the jury's opinion of Spence's credibility, which had been impeached by extensive cross-examination, nor would the discrepancies have changed the outcome of the trial. Given that the jury had evidence showing Spence to be a liar, thief, and drug dealer, the additional information about her past drug use pales in significance. The notes would have provided defense counsel with only additional minor details about Spence's sordid past, which she had already admitted. Thus, the trial court did not err in finding, on remand, that the notes did not contain material evidence sufficient to warrant a reversal of Clodfelter's conviction. The trial court's decision to reinstate Clodfelter's conviction is affirmed.
Affirmed.