COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
ALFONSO LAWRENCE RUSH, III
v. Record No. 2058-94-2 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA MARCH 26, 1996
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Norman Lamson for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Alfonso Lawrence Rush, III (appellant) was convicted in a
jury trial of four counts of distribution of cocaine in violation
of Code § 18.2-248(a). On appeal, he argues that the trial court
erred in: (1) refusing to dismiss the indictments against him
when each indictment pled separate offenses in the disjunctive,
and (2) denying his motion to strike when the Commonwealth failed
to provide exculpatory evidence as requested. For the reasons
that follow, we affirm.
BACKGROUND
Charles Dolan (Dolan) was a paid informant for the
Charlottesville Joint Narcotics Unit. In the fall of 1993, Dolan
was contacted by Detectives Charles Burton (Burton) and Andre
Jolie (Jolie) to make undercover drug purchases. Dolan was a
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
drug user and had been convicted in 1988 of possession of cocaine
with intent to distribute and possession of cocaine while in the
possession of a firearm.
As part of this operation, Dolan purchased cocaine from
appellant on four dates--September 27, and November 9, 11, and
12, 1993. On each occasion, Burton and Jolie set up a video
camera and microphone in Dolan's van, and gave him money to
purchase drugs and twenty dollars for gas money. Dolan would
then leave and stop for gas, beer, and cigarettes. Dolan
videotaped each transaction with appellant. After each sale,
Dolan would meet Burton and Jolie, who removed the drugs and
videotape from Dolan's van.
VALIDITY AND SUFFICIENCY OF INDICTMENTS
Appellant argues that the indictments were invalid because
they pled separate offenses in the disjunctive. Additionally, he
asserts that the indictments provided insufficient notice of the
nature and cause of the charges against him.
Each indictment against appellant cited Code § 18.2-248 and
read as follows:
On or about [date], in the County of
Albemarle, ALFONSO LAWRENCE RUSH, 3RD did
unlawfully and feloniously sell, give or
distribute cocaine, a Schedule II controlled
substance.
Before trial, appellant moved to dismiss the indictments, arguing
that the disjunctive wording charged separate offenses in one
count. The trial court denied the motion. Appellant did not
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request a bill of particulars, or ask that the Commonwealth's
attorney elect which charge to prosecute. As to each charge, the
trial court instructed the jury that "[t]he defendant . . . is
charged with the crime of distributing cocaine." (Emphasis
added). Each jury verdict form also limited the charged crime to
"distribution of cocaine."
Duplicity is the charging of separate
offenses in a single count. This practice is
unacceptable because it prevents the jury
from deciding guilt or innocence on each
offense separately and may make it difficult
to determine whether the conviction rested on
only one of the offenses or both. . . .
Duplicity usually occurs because of
prosecutor error in assuming that a
particular statute creates a single offense
which may be committed by multiple means
(properly chargeable in a single count)
rather than several offenses.
2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure
§ 19.2(e), at 457 (1984) (footnotes omitted). The Virginia
Supreme Court has held that Code § 18.2-248(a) "creates only a
single offense . . . the illegal transfer of controlled drugs."
Stillwell v. Commonwealth, 219 Va. 214, 222, 247 S.E.2d 360, 365
(1978).
In this case, the trial court did not err in refusing to
dismiss the indictments. An indictment that tracks the language
of Code § 18.2-248(a) charges a single offense that can be
committed by several means. Even if the indictments were
duplicitous, the appropriate remedy for a duplicitous indictment
is to "force the government to elect the offense upon which it
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will proceed, . . . not require the dismissal of the indictment."
2 LaFave & Israel, supra, § 19.2(e), at 457.
Additionally, the indictments provided appellant with
sufficient notice of the nature and cause of the charges against
him. Code § 19.2-220 provides as follows:
The indictment or information shall be a
plain, concise and definite written
statement, (1) naming the accused, (2)
describing the offense charged, (3)
identifying the county, city or town in which
the accused committed the offense, and (4)
reciting that the accused committed the
offense on or about a certain date. In
describing the offense, the indictment or
information may use the name given to the
offense by the common law, or the indictment
or information may state so much of the
common law or statutory definition of the
offense as is sufficient to advise what
offense is charged.
The indictment should also "cite the statute or ordinance that
defines the offense or, if there is no defining statute or
ordinance, prescribes the punishment for the offense." Rule
3A:6(a). "Both the United States and Virginia Constitutions
recognize that a criminal defendant enjoys the right to be
advised of the cause and nature of the accusation lodged against
him. The important concerns evident in these provisions are
fully honored by Virginia Code §§ 19.2-220, -221." Simpson v.
Commonwealth, 221 Va. 109, 114, 267 S.E.2d 134, 138 (1980)
(footnote omitted). These indictments complied with the
requirements of Code § 19.2-220 and Rule 3A:6(a), and appellant
was provided with sufficient notice of the charges against him.
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EXCULPATORY EVIDENCE
Appellant next argues that the trial court erred in denying
his motion to strike when the Commonwealth failed to provide
requested exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83 (1963).
Appellant filed a pretrial Brady motion, requesting
exculpatory evidence. The Commonwealth failed to disclose prior
to trial the following evidence about Dolan: (1) Dolan had a
drug problem and prior drug convictions; (2) Dolan bought beer
before meeting appellant to buy drugs; and (3) Dolan had a
five-year suspended sentence in effect until July 10, 1995.
During the Commonwealth's direct examination of both Detectives
Burton and Dolan at trial, Dolan's drug problem, prior
convictions, and his beer purchases were addressed. Appellant
did not object to this information or its untimely production.
He neither requested a continuance nor claimed surprise at that
time. Additionally, he had the opportunity to question Dolan at
trial about these issues. After trial, appellant discovered the
suspended sentence and filed post-trial motions to strike and set
aside the verdict, arguing that the nondisclosure of the
suspended sentence was prejudicial to him. The trial court
denied these motions.
It is well established that "the Commonwealth must turn over
evidence favorable to an accused that is material to either guilt
or punishment. . . . [E]vidence is material, 'only if there is a
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reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different.'" Hughes v. Commonwealth, 18 Va. App. 510, 525, 446
S.E.2d 451, 460-61 (1994) (en banc) (citations omitted). "'A
"reasonable probability" is a probability sufficient to undermine
confidence in the outcome [of the trial].'" Knight v.
Commonwealth, 18 Va. App. 207, 212, 443 S.E.2d 165, 168 (1994)
(citation omitted). "[T]he court must 'assess the reasonable
probability of a different result in light of the totality of
circumstances . . . .'" Id. Thus, "in order to justify reversal
on appeal, an appellant must not only show that exculpatory
evidence was not disclosed, but must show prejudice as a result
of the Commonwealth's failure to disclose." Allen v.
Commonwealth, 20 Va. App. 630, 637, 460 S.E.2d 248, 251 (1995).
Assuming that evidence of the unrelated suspended sentence
is exculpatory, no prejudice resulted from the nondisclosure in
the instant case. There is no reasonable probability that the
outcome of appellant's trial would have been different. The
evidence that appellant distributed the cocaine was overwhelming.
Detective Burton and the videotape of each sale clearly
identified appellant as the person who sold drugs to Dolan.
Under these circumstances, a further attack on Dolan's
credibility would not have impacted the jury's verdict. His drug
use, prior convictions, and beer buying had all been addressed at
trial. No reasonable probability exists that the outcome would
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have been different if the information of his suspended sentence
had been timely provided.
Additionally, no prejudice resulted from the late disclosure
of Dolan's drug use, earlier convictions, and his purchase of
beer. It was all revealed at trial. "Where an accused receives
information before or at trial and is able to use it effectively,
and is not otherwise able to demonstrate prejudice from the late
disclosure, the discovery violation has not deprived him of a
fair trial." Moreno v. Commonwealth, 10 Va. App. 408, 419, 392
S.E.2d 836, 843 (1990). The Commonwealth introduced this
evidence during its direct examination of both Detectives Burton
and Dolan. Appellant had the opportunity to cross-examine Dolan
and failed to demonstrate that the late disclosure prejudiced
him. Thus, the trial court properly denied his motions to strike
and to set aside the verdict.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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