Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Russell, S.J.
LINDSAY ALAN BLY OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 092064 November 4, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal from two convictions of drug distribution
presents a single question: whether the circuit court erred
in failing to grant the defendant a new trial because of the
Commonwealth’s failure to make pre-trial disclosure of
exculpatory evidence. The Commonwealth assigns cross-error to
the Court of Appeals’ failure to hold that the non-disclosed
evidence was neither admissible nor such as to lead to
evidence that would have been admissible.
Facts and Proceedings
Applying familiar principles, we will state the evidence
in the light most favorable to the Commonwealth, the
prevailing party at trial. In the spring of 2004, the
Rockbridge Regional Drug Task Force conducted a series of drug
“buys” though Robert Hoyle, a paid confidential informant.
Hoyle’s evidence led to two indictments of Lindsay Alan Bly in
the Circuit Court of the City of Buena Vista. At a bench
trial, Bly was convicted of possession with intent to
distribute an imitation controlled substance on May 17, 2004
(the May Offense) and possession with intent to distribute
methamphetamine on June 3, 2004 (the June offense).
With respect to the May offense, task force members
testified that their target was Bly, who lived in a ground-
floor apartment in a building at 1805 Walnut Avenue in Buena
Vista and was suspected of selling controlled substances
there. In preparation for the “buy,” they met with Hoyle,
searched him thoroughly to ensure that he had no money or
controlled substances with him, gave him $50 in marked money
and drove him to an area behind 1805 Walnut Avenue. One of
the members of the task force testified that he saw Hoyle walk
up onto the back porch of the building and greet Bly, who was
standing there with his wife. The three then entered the back
door of the building. Hoyle emerged alone about three minutes
later, re-entered the vehicle with the task force members, and
they drove away. Hoyle produced a small bag of white powder
that looked like powder cocaine but turned out on subsequent
analysis to contain no controlled substance. Searched again,
Hoyle had no money on his person when he returned to the
officers’ car. Hoyle testified that he purchased the bag of
white powder from Bly with the marked money and confirmed the
other details of the officers’ testimony.
With respect to the June offense, task force members
testified that they met with Hoyle again on that date to
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arrange for a methamphetamine “buy” from Bly. They thoroughly
searched Hoyle to ensure that he had no money or controlled
substances on his person, gave him $100 in marked money and
drove him to an alley that led to 1805 Walnut Avenue. They
saw Hoyle enter the back door, from which he emerged seven or
eight minutes later. Hoyle produced a “baggie” containing a
“pink, rock-like substance” that turned out on later analysis
to consist of methamphetamine. Hoyle testified that he had
purchased the “baggie” and its contents from Bly with the
marked money. Hoyle was again searched after delivering the
“baggie” to the officers and was found to be free of
contraband.
The record reflects that Hoyle was equipped with a
digital recording device for each of the purchase
transactions, but no recording was offered at the trial by the
Commonwealth as to either episode. Instead, Hoyle was called
as a witness to provide a testimonial description of the
actual purchase transactions – both of which took place
indoors, beyond the view of the task force officers. Hoyle
gave details about handing money to the defendant,
conversations that allegedly took place, and receipt of the
controlled substances.
At the conclusion of the trial on March 24, 2005, the
circuit court found Bly guilty as charged under both
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indictments but continued the case, leaving Bly free on bond
and subject to supervision by the probation officer pending
preparation of a pre-sentence report.
On March 6, 2006, nearly a year after the trial, Bly’s
counsel filed a motion for a new trial. No sentences had yet
been imposed. Bly’s motion asserted that his convictions were
necessarily dependent upon Hoyle’s credibility as a witness
because there was no visual surveillance, visual or audio
recording, fingerprint evidence, recovery of marked money, or
other evidence to support Hoyle’s account of his purchases
from Bly. The motion further asserted that the chief
investigator of the drug task force had been aware, more than
four months before Bly’s trial, that Hoyle had been giving the
task force false accounts of his purchases of controlled
substances.
Attached as an exhibit to Bly’s motion was a copy of a
letter from the Commonwealth’s Attorney for Rockbridge County
and the City of Lexington to another lawyer in a different
case, written in response to a discovery motion. That letter
acknowledged that Hoyle had claimed that he made drug “buys”
from one Jeff Breeden on two dates, resulting in Breeden’s
indictment and arrest, but it was later found that Breeden had
been incarcerated on both of those dates and could not have
made the sales as Hoyle claimed. The Commonwealth's
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Attorney’s letter further acknowledged that on another
occasion when Hoyle reported making a drug purchase from a
suspect in Buena Vista, another member of the task force
reported that he thought he had seen the suspect in a
different location at the same time. Consequently, the
suspect was not charged. The Commonwealth's Attorney’s letter
stated that from January through July of 2004 Hoyle made 83
controlled “buys” for the task force, for which he was paid a
total of $4,281.70, plus $1,301.40 for his court appearances.
Hoyle had a criminal record and had been found with a smoking
device but was not charged with possession of marijuana in
exchange for his services to the task force. Hoyle was only
paid if he made a “buy” and turned contraband over to the task
force.
Bly contended that he was entitled to a new trial because
the foregoing information was exculpatory within the holding
of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny,
that the information was in the Commonwealth’s possession
prior to Bly’s trial, that the Commonwealth had a duty to
disclose it to the defense but failed to do so, and that the
defense had no means of discovering it in the absence of such
disclosure because it did not become public until the
Commonwealth's Attorney’s letter described above was written,
well after Bly’s trial had ended.
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On March 30, 2006, the circuit court heard argument on
the motion for new trial and sentencing. The court took both
matters under advisement and continued the case, again
releasing Bly on supervised probation. On September 13, 2007,
Bly’s probation officer wrote to the court reporting that Bly
was in violation of the terms of his probation in that he had
repeatedly tested positive for marijuana use and had failed to
complete several treatment efforts for his drug problem. On
October 25, 2007, the court denied Bly’s motion for a new
trial and continued the case for sentencing. On December 13,
2007 the court entered an order imposing sentences of five
years confinement on each of the two convictions, the
sentences to run concurrently. All but seven months of the
sentence was suspended subject to probation for five years
after release.
Bly appealed his convictions to the Court of Appeals,
presenting only the question whether the circuit court had
erred in failing to grant him a new trial. By memorandum
opinion dated January 13, 2009, a three-judge panel, with one
judge dissenting, reversed the convictions and remanded the
case for a new trial. Bly v. Commonwealth, Record No. 2948-
07-3 (Jan. 13, 2009). The Commonwealth successfully
petitioned the Court for a rehearing en banc. The full Court
of Appeals, by a six-to-five majority, affirmed the judgment
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of the circuit court. Bly v. Commonwealth, 55 Va. App. 1, 3,
682 S.E.2d 556, 557 (2009). We awarded Bly an appeal. The
Commonwealth assigned cross-error to the failure of the Court
of Appeals to find that Bly had failed to establish the second
requirement of the Brady test: that the non-disclosed
information was itself admissible evidence or would have led
to evidence that was admissible.
Analysis
The Commonwealth concedes, as it must, that the evidence
Bly contends was exculpatory, was in the possession of the
Commonwealth’s agents prior to Bly’s trial and that it was not
disclosed. The Commonwealth argues, however, and the Court of
Appeals held, that Bly suffered no prejudice from the
Commonwealth’s failure to disclose it. Bly, 55 Va. App. at
10, 682 S.E.2d at 561. The Court of Appeals held that Bly
suffered no prejudice because the trial judge, as trier of
both law and fact, heard sufficient evidence to support a
conviction even if the testimony of Hoyle were totally
disregarded. The Court of Appeals pointed to the testimony of
three task force officers and Bly’s own testimony that was
inconsistent with theirs, thus impairing Bly's credibility.
Id. at 10-13, 682 S.E.2d at 561-62.
In Workman v. Commonwealth, 272 Va. 633, 636 S.E.2d 368
(2006), we summarized the applicable principles of the Brady
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doctrine as expressed in the opinions of the Supreme Court of
the United States:
In Brady, this Court held that 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. We have since held that the duty to
disclose such evidence is applicable even though
there has been no request by the accused, and that
the duty encompasses impeachment evidence as well as
exculpatory evidence. Such 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.
Moreover, the rule encompasses evidence known only
to police investigators and not to the prosecutor.
In order to comply with Brady, therefore, the
individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the
government's behalf in this case, including the
police.
Id. at 644, 636 S.E.2d at 374 (quoting Strickler v. Greene,
527 U.S. 263, 280-81 (1999)) (citations and quotation marks
omitted).
Most significantly, in the context of the present case,
we noted in Workman:
The question is not whether the defendant would more
likely than not have received a different verdict
with the evidence, but whether in its absence he
received a fair trial, understood as a trial
resulting in a verdict worthy of confidence. Kyles
v. Whitley, 514 U.S. 419, 434 (1995). A
constitutional error occurs, and the conviction must
be reversed, only if the evidence is material in the
sense that its suppression undermines confidence in
the outcome of the trial. United States v. Bagley,
473 U.S. 667, 678 (1985).
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. . . .
In Kyles, the Supreme Court of the United States
made several holdings concerning the test of
materiality. First, "a showing of materiality does
not require demonstration by a preponderance that
disclosure of the suppressed evidence would have
resulted ultimately in the defendant's acquittal
(whether based on the presence of reasonable doubt
or acceptance of an explanation for the crime that
does not inculpate the defendant.)" Kyles, 514 U.S.
at 434. Second, materiality is not a sufficiency of
the evidence test. "A defendant need not
demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there
would not have been enough left to convict." Id. at
434-35. Third, a harmless error analysis is
unnecessary once materiality has been determined.
Id. at 435. Fourth, suppressed evidence must be
"considered collectively, not item by item." Id. at
436. Upon consideration of these factors, a
reviewing court is charged with the responsibility
of determining if the suppression of evidence
"undermines confidence in the outcome of the trial."
Bagley, 473 U.S. at 678.
272 Va. at 645, 636 S.E.2d at 374-75 (brackets and internal
quotation marks omitted).
In the present case, in view of (1) the Commonwealth’s
failure to introduce the audio recordings Hoyle was equipped
to make of his dealings with Bly, (2) the lack of any other
evidence to corroborate Hoyle’s testimony as to those
transactions, and (3) Hoyle’s obvious pecuniary incentive to
fabricate drug “buys,” the suppression of evidence that could
have led to a devastating impeachment of Hoyle’s credibility
undermines confidence in the outcome of the trial.
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In its analysis, the Court of Appeals incorrectly assumed
that the circuit court, having been the trier of fact, would
have convicted Bly based on the other evidence in the case
even if Hoyle’s testimony were entirely excluded. When
determining whether to grant a new trial because of a Brady
violation, the court must take into consideration the use the
defense may properly make of the non-disclosed information.
As we observed in Workman, in the Brady context such non-
disclosed evidence may be, and often is, used to discredit an
entire police investigation. Id. at 647-48, 636 S.E.2d at
376. The non-disclosed evidence “may not have been admissible
for the truth of the matter asserted, but it was admissible
for a different reason[:] to discredit the police
investigation.” Id. at 646, 636 S.E,2d at 375. See also
Kyles, 514 U.S. at 445 (such evidence could have been used by
the defense to attack the “thoroughness and even the good
faith of the investigation”). The Court of Appeals’
assumption overlooks the risk that impeachment of Hoyle, in
discrediting the police investigation itself, might well have
tainted the remaining evidence in Bly's case.
Conclusion
The non-disclosed evidence here, as in Workman, could
clearly have led to evidence admissible at trial for
impeachment purposes. It was withheld by the Commonwealth and
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Bly was thereby prejudiced. The result was such as to impair
confidence in the outcome of the trial. Workman, 272 Va. at
650, 636 S.E.2d at 375. For these reasons, we will reverse
the judgment appealed from and remand the case to the Court of
Appeals with instruction to further remand the same to the
circuit court for a new trial consistent with this opinion if
the Commonwealth be so advised.
Reversed and remanded.
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