Michael Lynn Stables v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges O’Brien and Lorish
UNPUBLISHED
Argued by videoconference
MICHAEL LYNN STABLES
MEMORANDUM OPINION* BY
v. Record No. 0799-22-3 JUDGE MARY GRACE O’BRIEN
OCTOBER 3, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GILES COUNTY
H. Lee Harrell, Judge
Ryan D. Hamrick (Hamrick & Hamrick P.C., on briefs), for
appellant.
Rebecca M. Garcia, Assistant Attorney General (Jason S. Miyares,
Attorney General; Maureen E. Mshar, Assistant Attorney General,
on brief), for appellee.
Michael Lynn Stables (appellant) was convicted in a bench trial of possession with intent to
distribute a Schedule II narcotic, third or subsequent offense, in violation of Code § 18.2-248.
Appellant contends that the court erred in refusing to require disclosure of the identity of the
confidential informant who provided a tip that led to the search of appellant’s residence. For the
following reasons, we affirm.
BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party below.” Vay v.
Commonwealth, 67 Va. App. 236, 242 (2017) (quoting Smallwood v. Commonwealth, 278 Va. 625,
629 (2009)). “This principle requires us to ‘discard the evidence of the accused in conflict with that
*
This opinion is not designated for publication. See Code § 17.1-413(A).
of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth
and all fair inferences to be drawn therefrom.’” Id. (quoting Parks v. Commonwealth, 221 Va. 492,
498 (1980)).
In March 2015, appellant pled guilty to four counts of distributing a Schedule II narcotic.
As part of his plea agreement, appellant waived “his rights against search and seizure under the
[Fourth] Amendment of the United States Constitution, [and] Article I, Section 10 of the
Constitution of Virginia” while he was on probation, and for the duration of his suspended
sentence.1 Appellant’s waiver specifically allowed law enforcement “to search his person [and]
residence . . . without first establishing probable cause or obtaining a search warrant.”
In January 2021, Giles County Sheriff’s Investigator Zach Collins went to appellant’s home
to “[p]erform[] a Fourth Amendment waiver search.” Investigator Collins advised appellant that he
was there to “search[] his person and his residence” and asked if “anything illegal [was] in the
residence.” Appellant responded, “There shouldn’t be.” Appellant did not object to the search
because he “understood that he had waived his Fourth Amendment rights.” In a dresser drawer in
appellant’s bedroom, Investigator Collins found “two baggies containing crystal fragments.” On
another dresser, he found plastic Ziploc baggies and a set of digital scales. Investigator Collins
asked appellant what the fragments were and to whom they belonged. Appellant admitted the
fragments were “meth” and they were his. He gave Investigator Collins the keys to a safe mounted
on the wall in his bedroom. Inside the safe, Investigator Collins found $827 in cash, much of which
was in the form of one-dollar bills bundled together by rubber bands.
Investigator Collins spoke with a person named Brenda Dalton in the living room. The
investigator noticed “a big bulge in [Dalton’s] front right pocket,” and after learning that she had
1
For these March 2015 convictions, appellant received a total sentence of 28 years, with
25 years and 6 months suspended, and 5 years of probation.
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also waived her Fourth Amendment rights in a prior prosecution, he searched her pocket. He found
a bottle containing twenty-eight-and-a-half small round pills.2 A certificate from the Department of
Forensic Science established that the baggies from appellant’s bedroom contained almost 18 grams
of methamphetamine and the pills were oxycodone.
At trial, the Commonwealth introduced the 2015 plea agreement, which included the Fourth
Amendment waiver, as well as the sentencing order reflecting appellant’s four prior convictions for
distributing Schedule II drugs. Investigator Collins also qualified as an expert witness in the “sale
of street drugs.” He testified that a gram of methamphetamine had a street value of $100. In the
investigator’s opinion, the amount of methamphetamine discovered in appellant’s bedroom was
inconsistent with personal use. He also opined that the baggies, scales, and money were signs of
distribution and inconsistent with personal use.
During cross-examination, Investigator Collins confirmed that he had “received a tip from a
confidential informant” that led to the search of appellant’s residence. Appellant asked Investigator
Collins to identify the confidential informant. The Commonwealth objected, arguing that the
informant’s identity was not relevant because there was a “Fourth Amendment waiver in this case.”
Appellant responded that he was “entitled to be able to know” the informant’s identity to
“potentially defend himself from any biases, prejudices, information that was given, [and] any type
of relationships that [appellant] shares with this [informant].” He argued that the informant’s
identity was relevant, despite the Fourth Amendment waiver, because the police searched
appellant’s residence only after receiving information from the informant.
2
At trial, the Commonwealth proffered that Dalton later explained the pills were on a
table in the living room and that she only picked them up and put them in her pocket when the
police entered the room. When asked why she picked them up, Dalton stated that she “didn’t
know.”
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The court sustained the Commonwealth’s objection. At the end of the case, appellant
argued that the Commonwealth proved neither that he possessed the oxycodone pills found in
Dalton’s pocket nor an intent to distribute the methamphetamine recovered from his bedroom. The
court disagreed and convicted appellant of possession with intent to distribute a Schedule II
controlled substance, third or subsequent offense.
ANALYSIS
Appellant’s sole assignment of error is that the court abused its discretion in failing to
require Investigator Collins to disclose the identity of the confidential informant. Initially, we note
that appellant never moved to suppress any evidence and raises no constitutional issue concerning
the search of his home and seizure of the drugs. Rather, appellant challenges the court’s evidentiary
decision to preclude his cross-examination question about the identity of the confidential informant.
“[Appellate courts] review a trial court’s decision to admit or exclude evidence using an
abuse of discretion standard and, on appeal, will not disturb a trial court’s decision . . . absent a
finding of abuse of that discretion.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021) (quoting
Avent v. Commonwealth, 279 Va. 175, 197 (2010)). “In evaluating whether a trial court abused its
discretion, . . . we do not substitute our judgment for that of the trial court. Rather, we consider only
whether the record fairly supports the trial court’s action.” Id. (alteration in original) (quoting
Carter v. Commonwealth, 293 Va. 537, 543 (2017)). “Only when reasonable jurists could not differ
can we say an abuse of discretion has occurred.” Tynes v. Commonwealth, 49 Va. App. 17, 21
(2006) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45
Va. App. 811 (2005)).
To be admissible, evidence must be “both relevant and material.” Castillo v.
Commonwealth, 70 Va. App. 394, 462 (2019) (quoting Patterson v. Commonwealth, 62 Va. App.
488, 493 (2013)). “‘Evidence is relevant if it has any logical tendency, however slight, to establish a
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fact at issue in the case’ [and] . . . ‘material if it relates to a matter properly at issue’ in the case.” Id.(alterations in original) (quoting Cousins v. Commonwealth, 56 Va. App. 257, 271 (2010)). “Before
evidence is admitted, its proponent must lay a foundation supporting a finding that it is relevant to
the proponent’s theory of the case.” Creamer v. Commonwealth, 64 Va. App. 185, 194 (2015).
“‘[E]vidence of collateral facts and facts incapable of supporting an inference on the issue presented
are irrelevant and cannot be accepted in evidence. Such irrelevant evidence tends to draw [the
factfinder’s] attention toward immaterial matters’ and therefore is properly excluded.” Lawlor v.
Commonwealth, 285 Va. 187, 229-30 (2013) (first alteration in original) (quoting Coe v.
Commonwealth, 231 Va. 83, 87 (1986)).
Here, the informant’s identity was not relevant to any material issue. Appellant waived his
Fourth Amendment right to challenge the search of his residence by executing the 2015 plea
agreement, wherein he expressly consented to searches of his person and residence by law
enforcement “without first establishing probable cause or obtaining a search warrant.” Based on the
waiver, Investigator Collins did not seek or need a warrant before searching appellant’s residence;
he did not need probable cause. Accordingly, the basis for Investigator Collins’s search was not a
material issue for trial, and the informant’s identity was not relevant.
The informant’s identity was also irrelevant and immaterial because no evidence showed
that he or she actively participated in appellant’s crime. “As a general rule, ‘the identity of a person
furnishing the prosecution with information concerning criminal activities is privileged.’” Hatcher
v. Commonwealth, 17 Va. App. 614, 616 (1994) (quoting Daniel v. Commonwealth, 15 Va. App.
736, 739 (1993)). “We have adopted an exception to this rule, however, such that ‘[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, the privilege [of nondisclosure] must give way.’” Id.(alterations in original) (quoting Roviaro v. United States, 353 U.S. 53, 60-61 (1957)). That is,
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when an informant “participates in the transaction that results in the arrest and who the record shows
probably could relate testimony helpful to the defense,” his identity is subject to disclosure.
Stephenson v. Commonwealth, 18 Va. App. 247, 250 (1994). A person who does “not participate in
the transaction that leads to the arrest and who could not give information helpful to the preparation
of the accused’s defense” is merely a tipster, whose identity remains privileged. Id. See also Gray
v. Commonwealth, 233 Va. 313, 328-29 (1987).
Here, the evidence established that the involvement of the confidential informant was
limited to providing a “tip” that caused Investigator Collins to perform a search of appellant’s
residence for drugs. No evidence was presented that the information had any connection to the drug
activity occurring at appellant’s residence. Nothing in the record indicates that the informant
participated in a controlled drug deal or witnessed criminal activity at the behest of law enforcement
before the search. See Keener v. Commonwealth, 8 Va. App. 208, 213-14 (1989) (requiring
disclosure of an informant’s identity who both participated in and helped arrange the controlled
drug transaction resulting in conviction). Indeed, appellant’s defense theory was that the evidence
did not establish his possession of the oxycodone pills recovered from Dalton or his intent to
distribute the methamphetamine discovered in his bedroom. Neither of these theories involved the
participation of a confidential informant or even the actuality of a drug deal. Therefore, the identity
of the confidential informant remained privileged. See Stephenson, 18 Va. App. at 250.
Finally, appellant contends that knowledge of the informant’s identity was relevant to his
decision whether to testify. However, evidence does not meet the standard for relevance merely
because it may affect a litigant’s trial strategy. Instead, relevance hinges on whether the evidence
casts any light on a material fact at issue in the case, and the proponent must lay a sufficient
foundation. Creamer, 64 Va. App. at 194. “The defendant must come forward with something
more than speculation as to the usefulness of the identity of the informer.” Lanier v.
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Commonwealth, 10 Va. App. 541, 552-53 (1990). Because appellant’s need for the information
was, at best, speculative, the court did not err in refusing to require Investigator Collins to disclose
it.
Based on appellant’s 2015 Fourth Amendment waiver, Investigator Collins did not need
probable cause or a search warrant to search appellant or his residence and, as the court found, could
search appellant at any time. Also, no evidence suggested that the confidential informant
participated in the crime for which appellant was on trial—namely, possession with intent to
distribute a Schedule II narcotic. The identity of the confidential informant, and any bias potentially
affecting the information he provided to Investigator Collins, were irrelevant and immaterial to
appellant’s case. The court did not abuse its discretion in sustaining the objection.
CONCLUSION
Because the identity of the confidential informant was not relevant or material to the case,
the court did not abuse its discretion in refusing to require Investigator Collins to disclose it. The
judgment of the trial court is affirmed.
Affirmed.
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