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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