COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, McClanahan, Haley, Petty,
Beales, Powell and Alston
Argued at Richmond, Virginia
LINDSAY ALAN BLY
OPINION BY
v. Record No. 2948-07-3 JUDGE ELIZABETH A. McCLANAHAN
SEPTEMBER 15, 2009
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA
Humes J. Franklin, Jr., Judge
Ross S. Haine, Assistant Public Defender, for appellant.
Richard B. Smith, Special Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.
Lindsay Alan Bly was convicted in a bench trial of distributing an imitation controlled
substance and distributing methamphetamine, both in violation of Code § 18.2-248. On appeal,
Bly contends the trial court erred in denying his motion for a new trial on the grounds that the
Commonwealth failed to disclose impeachment evidence concerning the confidential informant
who testified against him, in violation of Brady v. Maryland, 373 U.S. 83 (1963). A panel
majority of this Court agreed with Bly and reversed the decision of the trial court. We granted a
petition for rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en
banc, we affirm the trial court.
BACKGROUND
We review the evidence in the “light most favorable” to the Commonwealth as the
prevailing party below. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003) (citations omitted). That principle requires us to “discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to
the Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v.
Commonwealth, 41 Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (internal quotation
marks and citations omitted).
Bly’s two drug distribution convictions arose from an investigation conducted by the
Rockbridge Regional Drug Task Force (“Task Force”), comprised of Investigators Slagle,
McFaddin, Mays, and Conner. At that time, the Task Force was using Robert Hoyle, as a
confidential informant, to make drug “buys” from individuals suspected of illegally selling
controlled substances.
May 17, 2004 Offense
On May 17, 2004, as Investigator Slagle testified at trial, the members of the Task Force
met with Hoyle in preparation for a purchase of cocaine from Bly. At the meeting, Slagle
“thoroughly” searched Hoyle “to make sure he had no illegal contraband already on his person,”
and no money. After none of those items were found on Hoyle, he was given fifty dollars in
“marked money” with which to make the purchase. The Task Force members then drove Hoyle
to an area near the back of the apartment building in the City of Buena Vista where Bly lived.
From that location, Slagle observed Hoyle walk to the back porch of the building. Slagle then
saw Bly, who was standing on the back porch and “actually greeted” Hoyle upon his arrival.
Slagle also saw Bly’s wife standing on the back porch at the same time. Thereafter, Slagle
watched Bly and Hoyle, along with Bly’s wife, enter the back entrance of the apartment building
together. Having been to Bly’s apartment during a previous investigation, Slagle explained that
Bly’s apartment was the first one on the left from the back entrance of the building.
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Slagle further testified that Hoyle was only in the apartment building “approximately
three minutes.” Upon exiting the building, Hoyle walked back to the vehicle where the Task
Force members were waiting, and entered the vehicle. Hoyle then “produced a small bag of
white powder” that “look[ed] like powder cocaine,” and stated that he purchased it from Bly.
Hoyle turned the contraband over to Investigator McFaddin. At that time, Slagle searched Hoyle
for other contraband and money on his person and found none. Slagle later obtained a laboratory
analysis of the “white powdery substance,” which revealed it was an imitation, i.e., it contained
no controlled substance.
Hoyle likewise explained in his testimony that on May 17, 2004, while working as a
confidential informant for the Task Force, he purchased from Bly at Bly’s apartment what was
purportedly cocaine. He also reiterated that, beforehand, the Task Force members thoroughly
searched him for drugs and money, none of which he had, and then delivered him to a location
near Bly’s apartment building. Hoyle further testified that he subsequently made the purchase of
the contraband from Bly with money he received from the Task Force, that he was in and out of
Bly’s apartment building within approximately two to three minutes, that he immediately turned
over to the Task Force the bagged substance he received from Bly, and that he was again
searched.
June 3, 2004 Offense
Then on June 3, 2004, Investigators Mays and Conner met with Hoyle, as both of these
investigators testified, for the purpose of arranging Hoyle’s second drug “buy” from Bly, which
was to be a methamphetamine purchase. At this meeting, Mays conducted a search of Hoyle for
“money [and] narcotics” and found none. Mays explained that the search was not “just a
pat-down.” He “[went] into [Bly’s] pockets, his pockets [were] emptied; his shoes [were] taken
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off; his waistband, crotch area [were] checked; anywhere that [he] could feasibly hide something
. . . [was] checked.”
Mays and Conner then gave Hoyle one hundred dollars of “marked” money to make the
purchase, and delivered him to an alley that led to Bly’s apartment building. They watched
Hoyle walk down the alley to the apartment building as they drove to a location directly behind
the building. They next observed Hoyle enter the back of the apartment building, and then exit
the building seven to eight minutes later. Hoyle returned to Mays’ and Conner’s vehicle, and
handed Conner a small “baggie” containing a “pink, rock-like substance,” which Hoyle said he
purchased from Bly. Concluding the operation by conducting a final search of Hoyle, Conner
“found no drugs on him.” Laboratory analysis revealed that the baggie, in fact, contained
methamphetamine, a Schedule I or II controlled substance.
Consistent with the testimony of Mays and Conner, Hoyle testified that on June 3, 2004,
while still working as a confidential informant with the Task Force, he purchased “meth” from
Bly at Bly’s apartment. He also confirmed that, as with the earlier “buy,” a member of the Task
Force searched him beforehand, and gave him money to make the purchase. Hoyle further
indicated he was not “surprise[d]” by the “actual Task Force numbers” that showed he was in
Bly’s apartment building “approximately seven minutes.” Before entering Bly’s apartment for
this second “buy,” Hoyle also explained, he walked upstairs and knocked on the apartment door
of another resident with whom he was acquainted, but “[n]o one was there”—thus adding to the
time he was in the apartment building.
Bly testified in his own defense, and denied even seeing Hoyle on either May 17, 2004 or
June 3, 2004, after claiming to have specific recollection of those two days. In fact, Bly further
stated that earlier in 2004 he told Hoyle to stay away from the apartment building where Bly
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lived (which he also purportedly managed for his parents) or “I will be serving papers on you”
and that Hoyle “complied.”
When Bly was arrested on the drug distribution charges, he admitted to Investigator
Slagle that he “buy[s] drugs” and “smoke[s] weed,” but denied that he “sells any.” He also
admitted to Slagle that he occasionally “smokes dope, or weed, with his brother,” who worked at
Dana Corporation, during his brother’s lunch hour. Bly was subsequently convicted, in a bench
trial, on each of the drug charges, i.e., distributing an imitation controlled substance on May 17,
2004, and distributing methamphetamine on June 3, 2004, in violation of Code § 18.2-248.
Before being sentenced, Bly filed a motion to set aside the convictions and grant him a
new trial. He contended in his motion that the Commonwealth, in violation of Brady, failed to
disclose that Hoyle, while working for the Task Force as a paid informant in numerous cases,
“was lying about at least some of the buys he was claiming to have made.” In support of this
allegation, Bly filed a copy of a letter, dated August 17, 2005, from the Commonwealth’s
Attorney for Rockbridge County to an attorney in another pending criminal case. The
Commonwealth’s Attorney represented in the letter that it was in response to defense counsel’s
motion for discovery and addressed information requested about Hoyle, in connection to his
work with the Task Force. The letter specifically provided, in relevant part, as follows:
Please treat this letter as my response to your Motion for
Discovery and Inspection filed in the above captioned case . . . .
Between January, 2004, and August, 2004, Robert Hoyle
made a total of 83 controlled buys for the Drug Task Force in
Rockbridge County and the City of Buena Vista. . . .
* * * * * * *
With respect to paragraph F of your Motion, and some of
which you already know, Hoyle alleged that he made purchases of
controlled substances on June 15th and 16th, 2004 from [J.B.] in
the South River Area of Rockbridge County. [J.B.] was charged
by direct indictment, returned by the Grand Jury on November 1,
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2004. [J.B.] was arrested on or about November 12, 2004, at
which time it was discovered that he [J.B.] was in custody in the
Rockbridge Regional Jail and could not have made the sale as
alleged.
Investigator McFaddin advises that there was one other
incident in which Hoyle purchased an illegal substance from
someone he (Hoyle) identified as a certain individual in Buena
Vista, Virginia. One of the Task Force Officers thought they may
have seen that same individual in another location at the same time
that Hoyle said he made the purchase. Hoyle was sent back to the
location of the purchase to try to confirm his identification of the
seller, but advised that no one came to the door. In this instance,
no charges were ever placed against the suspect.
At the hearing on Bly’s motion, Bly presented no additional evidence and made no
proffer in support of his motion. He relied only on the contents of the above-stated letter for its
purported impeachment value in challenging Hoyle’s credibility. He contended the letter
evidenced that Hoyle lied about purchasing drugs from at least two individuals—J.B. and an
unidentified person. In arguing that the “sole issue” in the case was Hoyle’s credibility, Bly’s
counsel asserted, wrongly, that no one other than Hoyle “testified at trial . . . that they saw
Mr. Bly at [Bly’s] residence when . . . Hoyle was sent in to buy drugs . . . .” 1 His counsel also
advanced the following “theory” of Bly’s innocence:
What we are alleging most likely happened is that Hoyle has
secreted on his person somewhere, probably in his crotch, a little
baggie of baking soda, or something along those lines, and he takes
Task Force buy money, goes in, switches the baking soda for the
buy money, puts the buy money in his crotch, walks back out and
hands the Task Force baking soda, or does sell his own drugs.
In response, the Commonwealth’s Attorney indicated that, “even though [he] didn’t have
actual knowledge”of the information in the letter regarding J.B., the information “should have
1
As explained, supra, Investigator Slagle testified that he saw Bly meet Hoyle at the
entrance to Bly’s apartment building at the time of Hoyle’s first “drug buy” from Bly.
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been disclosed” to Bly. He further asserted, however, that it would have made no difference in
the outcome of the case. He proffered that the Task Force officers and the informant would
testify that it was a “case of mistaken identity.” As for the other reference in the letter to the
unidentified individual that a Task Force officer “might have seen . . . in a different location,” the
Commonwealth’s Attorney stated that this assertion was “so vague” that it “really amount[ed] to
nothing.” He also challenged Bly’s contention that the sole issue at trial was Hoyle’s credibility,
in light of the Commonwealth’s other evidence and the trial court’s rejection of Bly’s alibi
defense based solely on his own testimony. Finally, in regard to Bly’s theory of innocence, the
Commonwealth’s Attorney responded that it was “just pure fiction,” given that there was no
evidence to support it.
Recognizing that Bly had no prior criminal history and expressing concern over the fact
that Hoyle was an informant in at least some cases that had been dismissed, the trial court took
Bly’s motion for a new trial under advisement and placed him on supervised probation. After
Bly violated the terms of his probation, the trial court denied the pending motion and sentenced
him to a term of imprisonment.
ANALYSIS
The principles on which a Brady violation is determined are well established. Under
Brady, the prosecution’s suppression of evidence favorable to an accused “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.” Brady, 373 U.S. at 87. A “true Brady violation” consists of three
components: “[1] The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the
State, either willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v. Greene,
527 U.S. 263, 281-82 (1999). “Prejudice [is] defined as a ‘reasonable probability that the
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outcome of the proceeding would have been different had the evidence been disclosed 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, 619 S.E.2d 16, 50 (2005)); see
Strickler, 527 U.S. at 280; United States v. Bagley, 473 U.S. 667, 682 (1985).
Here, Bly relies on the nondisclosure of the information regarding Hoyle in the August
17, 2005 letter from the Rockbridge County Commonwealth’s Attorney for advancing his Brady
claim. Bly argues the information could have been used to impeach Hoyle and he was
prejudiced without it. The Commonwealth, while conceding that the prosecution did not provide
the information to Bly and that it was arguably favorable to him, contends Bly has failed to carry
his burden of showing he was prejudiced by its nondisclosure.
“When an exculpatory evidence claim is reviewed ‘[o]n appeal, the burden is on
appellant to show that the trial court erred.’” Gagelonia v. Commonwealth, 52 Va. App. 99, 112,
661 S.E.2d 502, 509 (2008) (quoting Galbraith v. Commonwealth, 18 Va. App. 734, 739, 446
S.E.2d 633, 637 (1994)). Based on our review of the record, along with the Commonwealth’s
concession, it is evident Bly has established the second component of a Brady violation—the
prosecution’s nondisclosure of the disputed information. Assuming, arguendo, Bly has also
established the first component, i.e., that the information was favorable impeachment evidence, 2
we conclude he has failed to establish prejudice, the third component of Brady.
2
We do not decide whether the information in the letter was admissible impeachment
evidence, see Gamache v. Allen, 268 Va. 222, 229, 601 S.E.2d 598, 602 (2004) (addressing what
constitutes impeachment evidence), and, if not, whether Bly established that it would lead to
admissible impeachment or exculpatory evidence, see Workman v. Commonwealth, 272 Va.
633, 648, 636 S.E.2d 368, 377 (2006) (addressing the requirement to at least “proffer[]
admissible evidence that would have been discovered” had defendant known of the undisclosed
information in a timely manner). See also Wood v. Bartholomew, 516 U.S. 1, 5-6 (1995);
Soering v. Deeds, 255 Va. 457, 465, 499 S.E.2d 514, 518 (1998).
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The trial court rejected Bly’s Brady claim when it denied his motion for a new trial, and
then sentenced him on his two drug convictions from his bench trial. ‘“Absent clear evidence to
the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption
that the law was correctly applied to the facts.’” Caprino v. Commonwealth, 53 Va. App. 181,
184, 670 S.E.2d 36, 37-38 (2008) (quoting Yarborough v. Commonwealth, 217 Va. 971, 978,
234 S.E.2d 286, 291 (1977)); see Groves v. Commonwealth, 50 Va. App. 57, 61-62, 646 S.E.2d
28, 30 (2007) (“This means the ‘judge is presumed to know the law and apply it correctly in each
case.’” (quoting Crest v. Commonwealth, 40 Va. App. 165, 172 n.3, 578 S.E.2d 88, 91 n.3
(2003))). Bly points to no such evidence in the record to rebut this presumption. Thus, for
purposes of this appeal, we presume the trial court correctly applied the principles dictated by
Brady and made a factual determination that Bly was not prejudiced by the Commonwealth’s
nondisclosure of the information regarding Hoyle set forth in the August 17, 2005 letter. See
Deville, 47 Va. App. at 757-58, 627 S.E.2d at 532 (explaining that the trial court’s “no
prejudice” determination under Brady, following appellant’s bench trial, was a factual finding).
Accordingly, here, as in Deville, where “a trial judge, sitting as ‘both trier of fact and
arbiter of law,’ finds the Brady evidence inconsequential, there can be ‘no logical possibility’
that its earlier disclosure ‘would have altered the outcome of the case.’” Id. at 757, 627 S.E.2d at
532 (quoting Stroik v. State, 671 A.2d 1335, 1340 (Del. 1996)). That is because, “[u]nder such
circumstances, we need not hypothesize how a reasonable jury would likely have reacted to the
new information. We know with certitude, from the factfinder himself, that the outcome of the
proceeding would not have been different had the evidence been disclosed earlier.” Id.
However, as further explained in Deville, “a trial court cannot foreclose appellate review by an
ipse dixit denial of prejudice. Just as the original finding of guilt must fail if no ‘rational trier of
fact’ could have made such a finding, so too the factual finding of no prejudice should be set
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aside if patently unreasonable.” Id. (internal citations omitted). From our review of the record in
this case, we cannot say the trial judge’s presumptive finding that Bly was not prejudiced by the
Commonwealth’s failure to disclose the information regarding Hoyle was patently unreasonable.
At Bly’s trial, the court heard not only the testimony of Hoyle regarding his “drug buys”
from Bly at Bly’s apartment on May 17, 2004 and June 3, 2004 while working as a confidential
informant for the Task Force, the court also heard the testimony of three Task Force members,
Investigators Slagle, Mays, and Conner, who were directly involved with those “buys.”
According to the investigators’ testimony, Hoyle was thoroughly searched for drugs and money
both before and after each of the transactions between Hoyle and Bly, which included a search of
Hoyle’s crotch. During the intervening period, Hoyle was only out of the Task Force members’
sight for the brief period he was in Bly’s apartment building making a “drug buy,” which was no
more than three minutes during the first transaction and eight minutes during the second
transaction. Investigator Slagle also testified that, at the time of the first transaction, he actually
saw Bly “greet” Hoyle on the back porch of Bly’s apartment building before Bly, along with
Bly’s wife, escorted Hoyle into the building.
The trial court also heard Bly testify in his own defense, during which he unequivocally
denied even seeing Hoyle at Bly’s apartment building on either May 17, 2004 or June 3, 2004,
and claimed to have been somewhere else when the meetings with Hoyle were to have occurred.
Bly further testified that earlier in 2004 he had directed Hoyle to stay away from the apartment
building where Bly lived (which he purportedly managed) and that Hoyle “complied.” At least
as to the events of May 17, 2004, Bly’s testimony was directly contrary not only to Hoyle’s
testimony, but to that of Investigator Slagle, as well. As fact finder, the trial court was entitled to
disbelieve Bly’s self-serving testimony and conclude that he was “lying to conceal his guilt.”
Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004); Shackleford v.
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Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 (2001); Marable v. Commonwealth, 27
Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).
Furthermore, there was no evidence presented in this case to support Bly’s theory that
Hoyle had either drugs or baking soda of his own hidden in his crotch the two times he allegedly
met with Bly to buy drugs and that he then produced the hidden substance to the Task Force
when he returned from each of the alleged transactions—with Hoyle having made no actual
purchase of drugs or an imitation substance from Bly on either occasion. ‘“The Commonwealth
need only exclude reasonable hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant.’” Ward v. Commonwealth, 47 Va. App. 733,
751, 627 S.E.2d 520, 529 (2006) (quoting Hamilton v. Commonwealth, 16 Va. App. 751, 755,
433 S.E.2d 27, 29 (1993)).
Finally, we do not view the trial judge’s comments during the hearing on the motion for a
new trial, acknowledging Bly’s lack of a criminal history and the dismissal of cases where Hoyle
was an informant, as undermining the validity of the trial judge’s denial of the motion. To do so,
in view of the totality of the record here presented, would be to “fix upon isolated statements of
the trial judge taken out of the full context in which they were made, and use them as a predicate
for holding the law has been misapplied,” which we will not do. Yarborough, 217 Va. at 978,
234 S.E.2d at 291.
CONCLUSION
Upon our review of both the evidence presented at trial and the undisclosed information
in dispute, we conclude the trial court reasonably rejected Bly’s Brady claim. The trial court,
therefore, did not err in denying Bly’s motion for a new trial. Accordingly, we affirm Bly’s
convictions.
Affirmed.
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Frank, J., with whom Humphreys, Petty, Haley and Alston, JJ., join, dissenting.
I do not agree that appellant failed to demonstrate a Brady violation. Therefore, I
respectfully dissent from the analysis and judgment in this case.
“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 that
Brady 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). Prejudice is shown, and
the conviction must be reversed, ‘“if the evidence is material in that its suppression undermines
confidence in the outcome of the trial.’” See Garnett v. Commonwealth, 49 Va. App. 524, 534,
642 S.E.2d 782, 787 (2007) (quoting Bagley, 473 U.S. at 678).
The majority states that appellant has established the second component of a Brady
violation and assumes, arguendo, 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
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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, 619 S.E.2d 16, 50 (2005)).
The majority relies upon the concept that the “judge is presumed to know the law and
apply it correctly in each case.” Crest v. Commonwealth, 40 Va. App. 165, 172 n.3, 578 S.E.2d
88, 91 n.3 (2003). The majority reasons that the trial court, by denying appellant’s motion for a
new trial, made a factual determination that appellant was not prejudiced by the nondisclosure.
To the contrary, an examination of the record demonstrates that the trial judge did express his
concerns as to the prejudice suffered by appellant.
While the majority concludes the trial court found no prejudice, its pronouncement at the
hearing on appellant’s motion for a new trial on March 30, 2006 belies the majority’s position.
The trial court stated:
[o]ne of the things that really bothers me about it, this man doesn’t
even have a traffic ticket. Have you looked at his criminal history?
He doesn’t even have a traffic ticket. I mean, he’s got nothing. If
they did a presentence on me, I’d have – I’d have traffic tickets in
my background. This man doesn’t have anything, and we’re
getting ready to hang two felonies on him, on the word of a man
that, you know, we dismissed some cases.
After making this statement, the trial court continued the hearing without ruling on the Brady
issue and took the matter under advisement. This demonstrates a clear lack of confidence in the
verdict. The trial court was obviously concerned about the reliability of Hoyle’s testimony.
The evidence did not change, and no new information came to light, in the interim period
after this hearing. The only development before the hearing on October 24, 2007, some nineteen
months later, was that appellant tested positive for marijuana. At the second hearing, appellant’s
counsel inquired about the procedural status of the case. The trial court responded: “I took the
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matter under advisement, didn’t find him guilty, 3 gave him a chance to do right . . . so basically
if he’s in violation today, we’re going to end up with a sentencing hearing is what we’re going to
end up with.”
Appellant’s probation officer testified that appellant had not kept in contact with her and
had tested positive for marijuana. Hearing that testimony, and with no explanation, the trial
court then denied appellant’s motion for a new trial. Appellant’s counsel attempted to explain
that appellant’s behavior while the motion was under advisement was unrelated to the issue
underlying the motion for a new trial. Counsel stated “what’s happened post-March thirtieth
should not affect the grounds raised in the Motion for New Trial.” The trial court interrupted and
said, “we’re here on more than that. I mean, we’ve still got to dispose of those two distribution
charges.” Appellant’s counsel was not prepared to go forward on sentencing at this hearing on
his motion for a new trial, so the trial judge continued the sentencing and stated, “[t]he record
will show I’m overruling your motion for a new trial.”
The majority devotes much attention to other evidence that corroborates Hoyle’s
testimony. However, it is important to note that the trial court in its statements of March 30,
2006, indicated the convictions were based solely on Hoyle’s testimony. If the trial court
considered corroborating testimony, it would not have stated, “we’re getting ready to hang two
felonies on [the defendant], on the word of a man that . . . we dismissed some cases.” It is
apparent the trial court did not consider corroborating evidence.
The majority relegates the trial court’s statements of March 30, 2006 as isolated
statements. In order to sustain the majority view, it must, and did, ignore the significance of
those statements. To the contrary, the trial court’s expressed concern was the very reason why it
3
It appears appellant was found guilty of the offenses on March 24, 2005, but the
conviction order is not part of the record.
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did not sentence appellant on March 30, 2006, why it put appellant under supervision and
continued the case, and why it gave appellant “a chance to do right.”
On October 24, 2007, when the trial court denied appellant’s motion for a new trial, it
expressed its frustration with appellant for not taking advantage of the “break” afforded him by
the trial court.
It is clear from an examination of the record appellant’s motion was denied, not because,
as the majority speculates, the trial court made a factual finding of no prejudice, but because
appellant failed to successfully complete supervision. After the March 30, 2006 hearing, the trial
court never again addressed the merits of the Brady violation, other than to deny the motion
without explanation.
The record is completely devoid of any evidence that the trial court considered the
nondisclosed evidence and indicated that it would have reached the same conclusion with the
evidence. This is markedly different from the facts in Deville, 47 Va. App. at 756, 627 S.E.2d at
531-32, where the trial judge stated, unequivocally and on the record, that the nondisclosed
evidence would not have made such a difference as to create any prejudice. In that case, this
Court stated that there is no prejudice when “‘the trial judge was the trier of fact and, upon
learning of the undisclosed information,’ rules unequivocally that the impeachment evidence
‘would have had no impact’ on the factfinding underlying the defendant’s conviction.” Id. at
757, 627 S.E.2d at 532 (quoting Correll v. Commonwealth, 232 Va. 454, 466, 352 S.E.2d 352,
359 (1987)). This Court went on to say that “[w]hen a trial judge, sitting as ‘both trier of fact
and arbiter of law,’ finds the Brady evidence inconsequential, there can be ‘no logical
possibility’ that its earlier disclosure ‘would have altered the outcome of the case.’” Id. (quoting
Stroik v. State, 671 A.2d 1335, 1340 (Del. 1996)).
[A] trial judge’s denial of a Brady motion to vacate a conviction –
if predicated on an unequivocal finding of no prejudice in a bench
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trial – produces a result conceptually no different from that which
would follow the granting of the motion, a reopening of the
evidentiary record for the new evidence to be admitted, and a
reinstatement of the earlier conviction order.
Id. (emphasis added). However, unlike in Deville, the trial judge in the instant case made no
such finding. There is no evidence in the record that the trial judge found no prejudice to
appellant. To the contrary, he expressed doubt as to the veracity of the informant, which
undermines confidence in the verdict.
Clearly, the trial court was bothered by the Commonwealth’s failure to disclose the
evidence regarding the informant. In fact, at the March 30, 2006 hearing, the trial court
expressed enough concern about Hoyle’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 was uncomfortable with the veracity
of the informant, and it never retreated from that position. The trial court’s own words from the
March 30, 2006 hearing cast doubt on the reliability of its own 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 as was implied by the trial court. For these reasons, I would conclude that the trial court
erred in refusing to grant appellant a new trial. I therefore respectfully dissent.
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Bly v. Commonwealth
Court: Court of Appeals of Virginia
Date filed: 2009-09-15
Citations: 682 S.E.2d 556, 55 Va. App. 1
Copy CitationsCombined Opinion