Moses v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia

JEWELL P. MOSES, S/K/A
JEWEL P. MOSES
OPINION BY
v. Record No. 0589-97-3 JUDGE NELSON T. OVERTON
MAY 5, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
R. Clinton Clary, Jr. (Slayton, Bain and
Clary, on brief), for appellant.

John K. Byrum, Jr., Assistant Attorney
General (Richard Cullen, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General), for appellee.

Jewell Moses (defendant) was convicted in a bench trial of

distribution of cocaine, in violation of Code § 18.2-248. Prior

to sentencing, she moved for a presentence report to be prepared

by the probation department. The report included information

describing defendant's history of buying, transporting and

selling drugs, such information being obtained from unnamed

informants. She contends on appeal that Code § 19.2-299(C),

which mandates inclusion of information relating to a defendant's

association with drugs, violates the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution. 1 She also contends
1
Defendant also claims the statute violates the Eighth
Amendment to the United State Constitution and "their
counterparts under the Virginia Constitution." Because she has
presented no argument, facts or law on these questions, we
decline to address them. See Rule 5A:20. See also Fitzgerald v.
Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988) ("We
the court should have required the probation department to reveal

the identity of its unnamed sources. Because the statute is

constitutional and we find no error by the trial court, we affirm

her conviction.

I. Background

On August 8, 1996 defendant was found guilty in a bench

trial of distribution of cocaine. On motion of defendant, the

trial court ordered preparation of a presentence report and set a

date for sentencing. At the sentencing hearing, the Commonwealth

called Investigator Lee Lofland to testify to defendant's past

drug associations. Defendant objected because no such

information was contained in the report. The trial court

sustained defendant's objection but granted a continuance for the

probation department to include an addendum to the report

containing the requisite information. 2

At the next sentencing hearing, the Commonwealth offered the

addendum, which included information elicited from "Reliable
(..continued)
do not deem it our function to comb through the record . . . in
order to ferret-out for ourselves the validity of these
claims . . . .").
2
Code § 19.2-299(C) provides:

As any part of any presentence
investigation conducted pursuant to
subsection A when the offense for which the
defendant was convicted was a felony drug
offense set forth in [Code § 18.2-248], the
presentence report shall include any known
association of the defendant with illicit
drug operations.

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informants (7 or 8)." The unidentified informants told police

officials defendant received weekly drug shipments from New York

which she distributed to other dealers. Defendant objected to

the addendum on the grounds that the use of information from

confidential informants was "fundamentally unfair" and

unconstitutional. Alternatively, she asked that the identities

of the informants be revealed. The lower court overruled both

motions but offered defendant the opportunity to subpoena and

cross-examine the officers who gathered the information contained

in the report. Defendant declined.
The trial court sentenced defendant to fifteen years but

suspended eight years. It noted that, inter alia, the

information contained in the addendum describing defendant's

"association with significant drug operations" warranted the

upward departure from the sentencing guidelines. Defendant filed

her notice of appeal on March 7, 1997.

II. Constitutionality

"Every act of the legislature is presumed to be

constitutional, and the Constitution is to be given a liberal

construction so as to sustain the enactment in question, if

practicable." Bosang v. Iron Belt Bldg. & Loan Ass'n, 96 Va.

119, 123, 30 S.E. 440, 441 (1898). "When the constitutionality

of an act is challenged, a heavy burden of proof is thrust upon

the party making the challenge. All laws are presumed to be

constitutional and this presumption is one of the strongest known

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to the law." Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594,

598 (1959). It is into this inhospitable climate that defendant

asserts her several constitutional claims.

A. Right Against Self-Incrimination

Defendant first contends Code § 19.2-299(C) required her to

incriminate herself in derogation of the Fifth Amendment of the

United States Constitution. Defendant reasons that inclusion of

information gleaned from confidential informants not available

for cross-examination left her with no other way to rebut the

information but to testify. Defendant cites no authority

supporting this proposition, so we look to the scope of the Fifth

Amendment privilege to see if it shields defendant from the use

of hearsay evidence at a sentencing hearing.
"The privilege against self-incrimination 'protects an

accused only from being compelled to testify against himself, or

otherwise provide the State with evidence of a testimonial or

communicative nature.'" Farmer v. Commonwealth, 12 Va. App. 337,

340-41, 404 S.E.2d 371, 372-73 (1991) (quoting Schmerber v.
California, 384 U.S. 757, 761 (1966)). "This privilege extends,

not only to the guilt phase of a criminal trial, but also to the

sentencing phase." Doss v. Commonwealth, 23 Va. App. 679, 687,

479 S.E.2d 92, 96 (1996) (citing Estelle v. Smith, 451 U.S. 454,

462-63 (1981)). However, "[t]he Fifth Amendment does not

insulate a defendant from all 'difficult choices' that are

presented during the course of criminal proceedings, or even from

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all choices that burden the exercise or encourage waiver of the

Fifth Amendment's right against self-incrimination." Id. at

687-88, 479 S.E.2d at 96-97 (quoting United States v. Frazier,

971 F.2d 1076, 1080 (4th Cir. 1992), cert. denied, 506 U.S. 1071

(1993)).

In Doss, the sentencing judge gave the defendant a choice:

he could admit his guilt and receive a suspended sentence or

remain silent and forgo leniency. The Doss court followed the

reasoning of Frazier in upholding this choice against Fifth
Amendment challenge because this option was essentially the same

as that offered during plea negotiations: a favorable sentence

in exchange for admission of guilt. Id. at 688, 479 S.E.2d at

97.

The instant matter is even less complex than Doss or

Frazier. Here, the Commonwealth was not compelling

"communications" or "testimony" at all, United States v.

Dionisio, 410 U.S. 1, 6 (1973), but was simply presenting

evidence uncomplimentary to defendant, as it does in most

sentencing hearings. Defendant contends that her need to rebut

or explain the evidence burdened her right to a fair trial. To

the contrary, her freedom to challenge the evidence presented

against her ensured her right to a fair trial.
B. Right to Confront One's Accusers

Defendant next contends that the Commonwealth's refusal to

identify all its sources violated her right to confrontation

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under the Sixth Amendment. The United States Supreme Court has

stated "the right to confrontation is a trial right, designed to

prevent improper restrictions on the types of questions that

defense counsel may ask during cross-examination." Ritchie v.

Pennsylvania, 480 U.S. 39, 52 (1987) (citing California v. Green,

399 U.S. 149, 157 (1970)). In Ritchie, the defendant was denied

access during pretrial discovery to investigative files which

contained statements by the victim and information about

witnesses. The Court concluded the Sixth Amendment was not

offended because a defendant has no right to confront witnesses

outside of trial. See Maryland v. Craig, 497 U.S. 836, 849

(1990) ("'the Confrontation Clause reflects a preference for

face-to-face confrontation at trial'"); Goins v. Commonwealth,

251 Va. 442, 456, 470 S.E.2d 114, 124 (1996). Therefore,

application of the Confrontation Clause to the post-trial

sentencing proceedings is inappropriate. 3

C. Due Process

Defendant next contends Code § 19.2-299(C) violates the Due

Process Clause of the Fourteenth Amendment. The United States

Supreme Court has employed the Due Process Clause to define what

information is available during sentencing hearings. In Williams
3
Defendant was still free to cross-examine the probation
officer who authored the report, those witnesses who were named
within it and the police officers who gathered statements from
the unnamed informants. Defendant declined this opportunity. It
appears, therefore, that had there been a right to confrontation,
it was still met by the great latitude given defendant to examine
the persons identified in the report.

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v. New York, 337 U.S. 241 (1949), the Court held that a judge

could use a presentence report containing hearsay and evidence of

unadjudicated crimes without offending the due process guarantee.

The Court noted that "most of the information now relied upon by

judges to guide them in the intelligent imposition of sentences

would be unavailable if information were restricted to that given

in open court by witnesses subject to cross-examination." Id. at

250.
The Court later held in Gardner v. Florida, 430 U.S. 349

(1977), that when a presentence report contained confidential

information used to sentence a defendant to death, it violated

the Due Process Clause. However, the Court went to great pains

to distinguish Gardner from previous cases, such as Williams. It

stated the reason the hearing was unconstitutional lay not in the

use of confidential information per se, but in the denial of an

opportunity for defendant to rebut or challenge the evidence.

Id. at 356. It also limited the decision to capital cases. Id.

at 357, 362.

Most recently, in United States v. Watts, 117 S. Ct. 633
(1997), the Court examined language in the federal sentencing

guidelines which imposes "[n]o limitation" on the information the

court may consider in determining a defendant's sentence. It

held the trial court could consider the evidence of crimes of

which the defendant was acquitted if the alleged conduct could be

proven by a preponderance of the evidence. Id. at 638-39.

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 This Court has also held that a trial court
may rely upon a defendant's criminal record.
He may consider prior juvenile
adjudications, dismissed juvenile charges and
pending charges, charges for which the
accused has been indicted, but not convicted,
offenses for which the defendant has been
convicted, but not sentenced, convictions on
appeal, and evidence of unadjudicated
criminal activity . . . .

Thomas v. Commonwealth, 18 Va. App. 656, 659, 446 S.E.2d 469, 471

(1994) (en banc) (citations omitted). This broad rule of

inclusion is tempered by the requirement that the information

bear some indicia of reliability. See Alger v. Commonwealth, 19

Va. App. 252, 258, 450 S.E.2d 765, 768 (1994). During the

sentencing hearing at issue here, the trial court specifically

found the information provided by the confidential informants was

reliable due to corroboration from other sources and its

particularity.

Defendant also asserts Code § 19.2-299(C) is void for

vagueness because it "encourages selective introduction of

evidence." "A penal statute is void for vagueness if it fails to

give a person of ordinary intelligence notice that his

contemplated conduct is forbidden by the statute and if the

enactment encourages selective law enforcement." Woodfin v.

Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379 (1988)

(citation omitted). However, Code § 19.2-299(C) is not penal in

nature: it merely describes one type of information that must be

included if a presentence report is requested. Therefore,

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vagueness analysis of the statute is inappropriate. See Smith v.

Commonwealth, 3 Va. App. 650, 656, 353 S.E.2d 159, 162 (1987)

(holding the "Virginia Wiretap Statute" could not be stricken for

vagueness because it was not penal).

We hold that inclusion of information under Code

§ 19.2-299(C) from confidential informants does not violate the

Fifth, Sixth or Fourteenth Amendments to the United States

Constitution.
III. Disclosure of Informants

Defendant next contends that even if the statute is

constitutional as applied, "fundamental fairness and the right of

confrontation" mandate revelation of the informants' identities.

"Generally, the identity of a person furnishing the prosecution

with information concerning criminal activities is privileged."

Gray v. Commonwealth, 233 Va. 313, 328, 356 S.E.2d 157, 165

(1987). A narrow exception to the rule exists "'[w]here the

disclosure of an informer's identity . . . is relevant and

helpful to the defense of an accused, or is essential to a fair

determination of a cause.'" Hatcher v. Commonwealth, 17 Va. App.

614, 616, 440 S.E.2d 416, 418 (1994) (quoting Rovario v. United

States, 353 U.S. 53, 60-61 (1957)). "[N]o fixed rule" was

established, but the Court must weigh "the public interest in

protecting the flow of information against the individual's right

to prepare his defense." Rovario, 353 U.S. at 62. This Court

further refined the test to exclude "the mere tipster" from

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disclosure because, unlike an actual participant, information

possessed by the tipster would not facilitate a defense. See

Keener v. Commonwealth, 8 Va. App. 208, 212-13, 380 S.E.2d 21, 24

(1989) (citing McLawhorn v. State, 484 F.2d 1, 5 (4th Cir. 1973)

("disclosure of the informant's identity is required where the

informer is an actual participant, particularly where he helps

set up the criminal occurrence").

Applying this test, defendant's assertions must fail. The

informants cited in the report were not participants in the

events which led to defendant's convictions but were only

witnesses to previous criminal activities. They were not brought

to the trial court's attention until after criminal culpability

was established. It is inconceivable they could have been used

to assist her defense when they were not used to further her

prosecution. Under the Rovario, Keener, Hatcher line of
reasoning, we find that disclosure of the identities of these

informants was not required.

IV. Conclusion

We hold that Code § 19.2-299(C) is constitutional under the

Fifth, Sixth and Fourteenth Amendments, is not void for vagueness

and that disclosure of the identities of the informants used to

prepare defendant's presentence report was not required.

Accordingly, we affirm defendant's conviction.

Affirmed.

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