COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia
VICTOR HUGO FRONTANILLA
OPINION BY
v. Record No. 0631-01-4 JUDGE ROBERT P. FRANK
MAY 7, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Frank G. Soulier for appellant.
Virginia B. Theisen, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Victor Hugo Frontanilla (appellant) was convicted in a jury
trial of forging a public record, in violation of Code § 18.2-168,
and driving on a suspended license, in violation of Code
§ 46.2-301. On appeal, he contends the trial court erred in
denying his motion for a new trial, claiming the prosecution
failed to disclose exculpatory material prior to trial. For the
reasons given, we affirm the convictions.
BACKGROUND
On February 19, 2000, at about 1:45 a.m., Arlington Police
Officer Tracy Reiten observed a Toyota Celica with an altered
temporary license tag. Officer Reiten stopped the car and
observed a male driver and two female passengers. Reiten
testified the driver "looked familiar" to her at the time of the
stop.
The driver said he did not have his driver's license with him
nor did he have any other identification or the vehicle's
registration papers. The driver said his name was Carlos Angulo.
He stated his birthday was February 20, 1974, and he did not know
his social security number. He told the officer his address was
5118 Columbia Pike, Apartment 2, in Arlington. The driver
indicated he owned the Toyota.
Reiten attempted to run the driver's information through the
DMV computer, but the computer was not functioning properly. She
asked the dispatcher to run the name and date of birth through the
police department's local records management system (RMS). The
RMS had no information on "Carlos Angulo."
According to Reiten, the stop occurred in a well-lit area.
The headlights of her police car were illuminated, and she used
her flashlight. The driver initially remained in his car for five
to ten minutes. The officer then brought the driver to the back
of the car to point out the altered rear tag. The officer also
talked to the driver at the front of her vehicle. Reiten stood "a
couple" of feet away from the driver during these conversations.
Reiten estimated the stop lasted about twenty minutes.
Officer Reiten issued two summonses to the driver, one for
driving without an operator's license and the other for possession
of altered temporary tags. The driver signed the summonses with
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the name "Carlos Angulo." The officer did not take the driver
into custody because the police department was short-staffed that
night, and she did not believe she had time to effect and process
an arrest. The car was impounded, and the driver and two
passengers left the area on foot.
When she returned to the police station, Officer Reiten ran
the name "Carlos Angulo" through the DMV computer and found no
record, which meant no one with the name "Carlos Angulo" had a
valid Virginia operator's license. The officer then searched
through the RMS for "Carlos Angulo." The only "Carlos Angulo"
found in the system was fifty-two years old. Reiten knew this
Carlos Angulo was not the driver she had stopped.
Next, Reiten did a computer search using the address provided
by the driver. The name response for that address was Victor
Frontanilla. When the officer used that name in a computer
search, she received a physical description consistent with the
driver she had stopped that morning. The birth date reported by
the computer for Frontanilla was just six days from the birth date
given by the driver.
Officer Reiten obtained recent photographs of Frontanilla,
appellant here, from the police identification unit. Upon viewing
the photographs, she concluded appellant was the man she had
stopped thirty minutes earlier.
After recognizing appellant as the driver, Reiten went to the
"Third District cubicle" to determine why appellant "appeared
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familiar to [her]." There, she saw a poster with appellant's
picture. The poster had been there since December, and Officer
Reiten had seen it a number of times. The poster noted appellant
lived at 5118 S. Columbia Pike, Apartment 2, and drove a light
blue Toyota. Reiten denied recalling the poster at the time of
the stop.
Officer Reiten testified unequivocally that the person she
stopped on February 19, 2000 was appellant. On cross-examination,
she testified that another officer was present at the stop as
back-up, but she did not recall the name of that officer.
Appellant's counsel did not pursue any additional
cross-examination concerning the identity of the other officer.
Appellant testified that he lent Carlos Angulo his car. He
maintained Angulo, not appellant, was the driver stopped by
Officer Reiten. Appellant produced other witnesses who
corroborated his testimony.
Following the trial, appellant filed a motion seeking
dismissal of the charges or a new trial, based on suppression of
exculpatory evidence. Appellant's motion alleged that the
Commonwealth's attorney told him, prior to trial, that Officer
Reiten was the only officer at the scene during the stop.
Appellant claimed, if he had known prior to trial that other
officers were present, he would have subpoenaed those officers,
"who could both dispel the identification of the defendant by
[O]fficer Reiten as well as be used for impeachment of said
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officer." At the hearing on the motion, appellant indicated the
relief sought was a new trial, not dismissal of the charges.
At the hearing on the motion, none of the officers testified,
but the Commonwealth represented to the court that they could give
general descriptions of the driver, matching appellant's
appearance as to ethnicity, height, weight, and age. None of them
were comfortable, however, making a positive, in-court
identification of appellant.
The Commonwealth proffered that these officers had duties at
the scene other than focusing on the driver. One officer focused
on the passengers. Another officer was a recruit, who exited the
police car only briefly. One officer was assigned to remove the
altered license tag. The prosecutor did not show a photo array to
any of these officers. Appellant did not oppose the proffer. 1
The Commonwealth's attorney denied telling appellant's
counsel prior to trial that no other officers were present.
The trial court ruled that the disclosure of information
regarding other officers would result merely in "speculation" and
"possibility." The court ruled the evidence was not exculpatory
and did not suggest a reasonable probability of a different result
if disclosed. The court denied the motion for a new trial.
1
From the proffer, it is unclear whether there were two or
three officers at the stop, in addition to Officer Reiten.
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ANALYSIS
On appeal, appellant contends the presence of three police
officers at the scene was exculpatory because it contradicted
Reiten's "recollection of matters at the time of the traffic
stop." He asserts the prejudice he suffered "was his inability to
impeach Officer Reiten's certainty of identification, recollection
of the incident and credibility in presenting the case for
prosecution."
Due process requires that the Commonwealth disclose all
material exculpatory evidence to an accused. Jefferson v.
Commonwealth, 27 Va. App. 477, 486, 500 S.E.2d 219, 224 (1998)
(citing Brady v. Maryland, 373 U.S. 83, 87 (1963); Stover v.
Commonwealth, 211 Va. 789, 795, 180 S.E.2d 504, 509 (1971)).
Exculpatory evidence is evidence that is favorable to the accused
and includes impeachment evidence. United States v. Bagley, 473
U.S. 667, 676 (1985); Robinson v. Commonwealth, 231 Va. 142, 150,
341 S.E.2d 159, 164 (1986). The withholding of information from a
defendant constitutes a Brady violation when the information is
"(1) either directly exculpatory or [has] impeachment value, (2)
suppressed by the government, and (3) material." Lockhart v.
Commonwealth, 34 Va. App. 329, 345, 542 S.E.2d 1, 8 (2001) (citing
Strickler v. Greene, 527 U.S. 263, 280-81 (1999)).
"The 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." Bagley,
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473 U.S. at 682. "'A "reasonable probability" is a probability
sufficient to undermine confidence in the outcome.'" Soering v.
Deeds, 255 Va. 457, 464, 499 S.E.2d 514, 517 (1998) (quoting
Bagley, 473 U.S. at 682). Therefore, appellant "must show that
when the case is evaluated in the context of the entire record,
including the omitted evidence, a jury would have entertained a
reasonable doubt" as to appellant's guilt. Id. "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). "The materiality inquiry is a context-specific
determination; evidence that is material in one setting could be
immaterial in another." Lockhart, 34 Va. App. at 346, 542 S.E.2d
at 9.
The record fails to show the undisclosed information was
material. Based on this record, we cannot say to a reasonable
probability that the result of the proceeding would have been
different had the information been disclosed and had the other
officers testified. See Bagley, 473 U.S. at 682.
The evidence of additional back-up officers at the scene of
the stop would have had a minimal effect on the credibility of
Officer Reiten's positive identification of appellant. First,
she based her identification of appellant on her lengthy
encounter with the driver, which occurred under favorable
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lighting conditions. She knew he looked familiar when she was
talking to him.
Within thirty minutes of this encounter, Officer Reiten
identified appellant as the driver from a photo provided by her
department. Appellant lived at the address that the driver gave
to the officer, and the date of birth given by the driver was
only six days different from appellant's date of birth.
Appellant also matched the description of the driver, even
according to the non-testifying officers. On the other hand,
the testimony indicated the "real" Angulo was fifty-two years
old, twice the age given by the driver.
In arguing materiality, appellant contends the other
officers could have dispelled the identification by Officer
Reiten. The accepted proffer of their testimony belies this
argument.
The other officers were not at the scene "to focus on"
appellant, but instead served as "back-up officers." One
officer "was focusing more on those other two [passengers] for
the safety of the primary officer." One officer was "assigned
. . . to actually taking the [altered] plate." One officer, a
recruit, got out of the police vehicle only briefly, but "was
observing from in the car." He could generally describe the
driver, but was "not necessarily" paying particular attention to
him.
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While these officers were not comfortable identifying
appellant in court, they could have corroborated Officer
Reiten's general description of the driver, which matched
appellant's height, general weight, age, gender, and ethnicity.
Nothing in the record suggests these back-up officers could
have dispelled Officer Reiten's unequivocal identification of
appellant. They could not specifically identify the driver, nor
could they testify that appellant was not the driver. Their
testimony would not have impeached Reiten's ability to remember,
as their recollections of the driver did not contradict Reiten's
testimony. In fact, their testimony would have supported
Reiten's identification of appellant, not Angulo, as the driver.
Appellant argues that testimony regarding these officers'
presence at the scene would have impeached Reiten's ability to
remember because Reiten indicated only one officer was present.
However, the record does not support this allegation.
The defense attorney asked Reiten, "Did you – when you
stopped him for the summons – whether it's Mr. Angulo or Mr.
Frontanilla, did another officer come out for back up?" Reiten
responded, "yes." When asked, "Who was that," the officer
testified she could not recall. As the trainee was not at the
scene as back-up and remained in the other police car, and the
record is unclear whether two or three additional officers were
present, Reiten's responses truthfully indicated to the jury her
ability to remember the encounter with appellant.
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Considering the undisclosed information together with the
evidence adduced at trial, the record does not establish a Brady
violation, nor would the undisclosed evidence "'"have put the
whole case in such a different light as to undermine confidence
in the verdict."'" Lockhart, 34 Va. App. at 346, 542 S.E.2d at
9 (quoting Strickler, 527 U.S. at 289-90 (quoting Kyles v.
Whitley, 514 U.S. 419, 434-35 (1995))). Any "damage" to Officer
Reiten's credibility would have been, at the most, minimal.
Even if the undisclosed information was material, we would
affirm the trial court's decision. To find a Brady violation,
appellant must be prejudiced by suppression of the information.
No such prejudice occurred here.
So long as exculpatory evidence is obtained
in time that it can be used effectively by
the defendant, and there is no showing that
an accused has been prejudiced, there is no
due process violation. Read v. Virginia
State Bar, 233 Va. 560, 564, 357 S.E.2d 544,
546-47 (1987). It is the defendant's
ability to utilize the evidence at trial,
and not the timing of the disclosure, that
is determinative of prejudice. See Robinson
v. Commonwealth, 231 Va. 142, 152, 341
S.E.2d 159, 165 (1986).
Moreno v. Commonwealth, 10 Va. App. 408, 417, 392 S.E.2d 836,
842 (1990).
Here, during cross-examination, appellant discovered that
at least one other officer was present at the scene. Officer
Reiten testified another officer was present and admitted she
could not recall the identity of that officer. Any additional
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testimony regarding the trainee and any back-up officers would
have been cumulative of the point already made at trial, namely,
that Reiten had an incomplete recollection of collateral events
at the scene.
Appellant maintains the failure to disclose this
information prejudiced his ability to challenge Officer Reiten's
recollection of events. However, appellant could have made that
very challenge based on the evidence presented at trial.
Appellant could have pointed out to the jury that, while the
officer was certain of her identification of appellant, by her
own admission she could not recall the identity of her fellow
officers. This impeachment argument could have been made, but
was not.
When appellant learned at trial of the so-called
"exculpatory" evidence, he failed to "bring the matter to the
court's attention," by way of a motion for mistrial, for a
continuance, or for any other relief. 2 See Graham v.
Commonwealth, 250 Va. 79, 87-88, 459 S.E.2d 97, 101 (1995)
(noting such failure "waive[s] the point"). We conclude that
appellant was not prejudiced by the Commonwealth's failure to
disclose prior to trial that other officers were present at the
scene.
2
Appellant did not make a motion for a new trial until
after the jury was dismissed.
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The trial court did not err in denying appellant's motion
for a new trial. Therefore, we affirm the convictions.
Affirmed.
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