Ida Lynnette Davis, s/k/a Ida Lynette Davis v. CW

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Richmond, Virginia
IDA LYNNETTE DAVIS, S/K/A
IDA LYNETTE DAVIS
OPINION BY
v. Record No. 0269-96-3 JUDGE JAMES W. BENTON, JR.
SEPTEMBER 30, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Elizabeth P. Murtagh, Assistant Public
Defender, for appellant.
Ruth Ann Morken, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Ida Lynnette Davis was convicted by a jury of distribution
of cocaine in violation of Code § 18.2-248. On appeal, Davis
argues that the trial judge erred in (1) denying her pretrial
motion for disclosure of the location of the police officers'
observation post; (2) prohibiting her from calling witnesses to
rebut the officer's testimony regarding his ability to view the
place where the officer alleged Davis made the distribution; (3)
denying portions of her pretrial Brady motion for discovery of
exculpatory evidence; (4) denying her pretrial request for
production of "mug shots" of other women arrested in the same
location for selling cocaine; and (5) denying her motion to
strike at the close of all the evidence. For the reasons that
follow, we reverse the conviction and remand the case for further
proceedings consistent with this opinion.
I.
The evidence proved that from 7:15 p.m until 8:30 p.m. on
July 14, 1995, police investigators J. S. Taylor and A. S. Thomas
conducted a surveillance of the 2100 block of Main Street in
Lynchburg. Officer Taylor testified that Davis was on the
sidewalk with another woman, that he had known Davis for almost
two years, that he had seen her more than ten times, and that he
previously had seen her from a distance of a "[f]ace-to-face
conversation."
Officer Taylor observed another individual, later identified
as Linda Jones, arrive driving a white Toyota. Taylor testified
that Jones exited the car, approached Davis on the sidewalk in
front of a house at 2110 Main Street and gave Davis some folded
paper resembling money. Davis went inside the house. When Davis
returned, she dropped an "off-white chunk" from her closed right
fist into Jones' extended hand. Jones looked at the item, put
the item into the right front pocket of her shorts, entered her
car and drove away.
A police officer stopped Jones after she drove away and
seized the item that Jones put in her pocket. The item the
officer seized from Jones was later tested and found to be
cocaine.
Jones testified that she drove a white Toyota to 2110 Main
Street on July 14, 1995 to purchase drugs. Jones remembered
buying cocaine but could only describe the seller as a heavy,
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black woman with curls in her hair. On cross-examination,
counsel for Davis asked Jones whether Davis was the seller.
Jones stated, "No. It was not her." On redirect, Jones
testified that she was unable to identify the seller and that she
did not know whether Davis was the seller.
After the Commonwealth rested, Davis called her grandmother
as a witness. Davis' grandmother testified that she resides at
2110 Main Street and that Davis resides on another street with
Davis' mother. The grandmother testified that on July 14, 1995,
she was home because two men were renovating her kitchen at 2110
Main Street. Davis arrived in the afternoon, helped the
grandmother and cleaned household items on the sidewalk and the
porch. Around 7:00 p.m. that day, Davis was moving the items
back into the house. The grandmother left the house at
approximately 7:20 p.m. and returned at 10:40 p.m. The
grandmother also testified that "the street's always full of
people."
Davis testified in her own defense. She testified that she
did not know Jones, had never seen her before and did not sell
drugs on July 14, 1995. Davis further testified that on July 14,
1995 she was washing her grandmother's stove and cabinets on the
front porch and sidewalk. She also testified that many people
were standing on the sidewalk that evening.
The trial judge overruled Davis' motion to strike the
evidence. The jury found Davis guilty of distribution of
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cocaine, and the judge imposed the jury's sentence of five years
in the penitentiary and a fine of $500.
II.
Davis argues that the trial judge erred in denying her
pretrial "Motion to Compel Disclosure of Observation Post." We
agree.
"[T]he Commonwealth has a qualified privilege not to
disclose the location" of a police observation post. Hollins v.
Commonwealth, 19 Va. App. 223, 226, 450 S.E.2d 397, 399 (1994).
The Commonwealth's privilege is limited, however, by "the
fundamental requirements of fairness," which require
consideration of an accused's "right to prepare [a] defense."
Roviaro v. United States, 353 U.S. 53, 60, 62 (1957). Setting
forth the analysis applicable to requests for disclosure of
observation posts, this Court stated the following in Hollins:
To compel the disclosure of the exact
location of a surveillance post, [a
defendant] must "show that [she] needs the
evidence to conduct [her] defense and that
there are no other adequate alternative means
of getting at the same point." Only then
must the court balance the public interest in
effective law enforcement and citizens'
safety against the defendant's constitutional
right to [prepare a defense and] confront
government witnesses.
19 Va. App. at 227, 450 S.E.2d at 399 (citation omitted).
After a pretrial evidentiary hearing, the trial judge
overruled Davis' motion on the ground that Davis had failed to
prove she needed to know the location of the observation post.
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Davis contends that she had proved a need for the information in
order to prepare her case and properly cross-examine the police
officers. We agree that the record contains such proof.
In Hollins, this Court found that Hollins failed to show "a
required need for disclosure of the observation post" because he
"failed to show any possible obstruction in the area, to question
the officer about any obstructions or to present any independent
evidence of obstructions" in the relevant block of the street.
See id. at 228, 450 S.E.2d at 400. Unlike in Hollins, counsel
for Davis offered independent evidence showing that obstructions
existed in the area. Officer Taylor testified that when he
observed Davis on July 14 he was "[w]ithin a city block" from
Davis and used binoculars to aid his vision. Although Officer
Taylor testified that he "had clear vision, no obstructions,"
Davis offered into evidence numerous photographs that revealed,
in the area around the 2100 block of Main Street, trees, other
foliage, telephone poles, columns and railings. The investigator
who photographed the area testified that "[d]epending on where
[the police] were located," the officers' views may have been
obstructed. Nevertheless, the trial judge stated that "there
could be any number of observation points within [the]
circumference [around the 2100 block] from which you would have
an unobstructed view."
We hold that the trial judge erred in finding that Davis
failed to show she needed information regarding the location of
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the officers' surveillance post. 1 Counsel proved, through
independent evidence, the presence of obstructions in the area.
Moreover, the record contains essentially no evidence to
corroborate the testimony of the surveillance officer. See id.
at 227-28, 450 S.E.2d at 399-400 (considering "the quality of any
corroborating evidence" as a factor in the inquiry). The
evidence establishes that other people were in the vicinity, and
that the purchaser of the cocaine could not identify Davis as the
seller. This case is distinguishable from Hollins, and we find
that Davis met her burden of showing a need for the information.
Accord Commonwealth v. Lugo, 548 N.E.2d 1263, 1268 (Mass. 1990).
III.
Davis also argues that the trial judge erred in ruling that
she could not offer as witnesses two property owners who, Davis
alleges, allowed the officers to use their land for the
observation post. 2 We agree.
1
Although counsel independently discovered the identity of
the individuals who permitted the officers to use their land,
nothing in the record indicates that those individuals knew
precisely where the officers stood when they made their
observations. Thus, the availability of the land owners did not
obviate Davis' need for the information.
2
Four days before trial, Davis filed a motion for a
continuance, in part on the ground that she had recently become
aware of two additional witnesses. Counsel told the judge that
the witnesses were two property owners who would "say that the
police were on their property, making their observations." The
trial judge referred to his prior ruling denying Davis' motion
for disclosure of the observation post and stated, "I'm not going
to allow you to bring those people in court to do indirectly what
I've ordered that you can't do directly." Counsel notified the
judge that the individuals were not "fearful of testifying." The
judge noted that "if they're going to come and testify anyway,"
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"The Sixth Amendment of the United States Constitution
guarantees the right to confront and cross-examine witnesses, a
'fundamental right essential to a fair trial.'" Hollins, 19 Va.
App. at 226, 450 S.E.2d at 399 (quoting Pointer v. Texas, 380
U.S. 400, 403 (1965)). In addition, an accused has a "right 'to
call for evidence in [the accused's] favor.'" Oliva v.
Commonwealth, 19 Va. App. 523, 526, 452 S.E.2d 877, 880 (1995)
(quoting Va. Const. Art. I, § 8).
The right to offer the testimony of
witnesses, and to compel their attendance, if
necessary, is in plain terms the right to
present a defense, the right to present the
defendant's version of the facts as well as
the prosecution's to the jury so it may
decide where the truth lies. Just as an
accused has the right to confront the
prosecution's witnesses for the purpose of
challenging their testimony, [the accused]
has the right to present his own witnesses to
establish a defense. This right is a
fundamental element of due process of law.
Washington v. Texas, 388 U.S. 14, 19 (1967); see also Massey v.
counsel would not need a continuance in order to subpoena the
witnesses. The judge added that counsel could "have them
subpoenaed today." However, the judge noted that he was not sure
he was "going to let those witnesses on. I've already said that
. . . information [revealing the officers' observation post] was
not coming in." The judge further stated, "[W]e're not going to
explore that anymore . . . . I mean, that's not something that
you're going to be allowed to dance around in this trial." The
trial judge ruled that the continuance was unnecessary and denied
the continuance.
On the morning of trial, at a pretrial conference in the
judge's chambers, the Commonwealth notified the judge that
counsel for Davis had subpoenaed the neighbors. The judge told
counsel that "we're not getting into the location of the
surveillance point . . . . So I don't want those witnesses
called for that purpose."
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Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 757-58 (1985).
Because Officer Taylor was the only witness who described
the transaction, Davis' ability to raise the question whether
Officer Taylor's view was obstructed was crucial to her defense.
Accord Lugo, 548 N.E.2d at 1268. Although Officer Taylor
testified that he told the owner of the property used for the
surveillance "that [the officers' use of the property] would be
kept confidential to protect [the landowner] because [the
landowner] was in fear of retaliation," counsel for Davis
discovered those individuals independent of the officers and
asserted that those individuals were willing to testify.
Moreover, counsel for Davis also asserted that the surveillance
post was no longer being used by the police. That assertion was
not refuted.
Davis' right to present facts concerning the observation
post was thwarted by the trial judge's ruling that because the
Commonwealth was not required to disclose the location of the
post during discovery, Davis could not offer her own independent
evidence at trial in an attempt to prove the location of the post
and the obstructions. Davis' counsel informed the trial judge
that she had located the property owners who would testify that
they were home when the police used their property as an
observation point. Davis' counsel further represented that
"there are clear obstructions . . . there are things in the way."
Indeed, at a pretrial hearing, Davis' counsel offered as
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exhibits sixteen photographs that depicted "a three hundred and
sixty degree view of that area." The witness who made the
photographs testified that obstructions were visible in some of
the photographs.
In disallowing the testimony, the trial judge prevented
Davis from challenging the officers' ability to observe the
events about which they testified. The trial judge erred in
excluding testimony of the witnesses that was relevant to that
inquiry. Because the trial judge ruled that the Commonwealth was
not required to disclose the observation post, the error in
refusing to allow Davis to prove the site of the post through her
own witnesses was not harmless.
IV.
Because these issues are likely to arise again on remand, we
must also address Davis' argument that the trial judge erred in
denying her motion for discovery of exculpatory evidence and her
motion for discovery under Rule 3A:11.
A. EXCULPATORY EVIDENCE
Although "[n]o general constitutional right to discovery
exists in a criminal case," Allen v. Commonwealth, 20 Va. App.
630, 637, 460 S.E.2d 248, 251 (1995), rev'd on other grounds, 252
Va. 105, 472 S.E.2d 277 (1996), the Commonwealth may not refuse
to disclose material, exculpatory evidence. See Brady v.
Maryland, 373 U.S. 83, 87 (1963). "[T]he suppression by the
prosecution of evidence favorable to an accused upon request
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violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." Id.
Counsel for Davis filed a Brady motion in which she sought
discovery of the following:
1. All information regarding the number of
African-American females that were observed
on the 2100 block on July 14, 1995,
specifically, the name of each individual,
address, a physical description of the
individual and the opportunity to observe or
copy any photograph, video, fingerprint or
other form of identification.
2. The names of the police officers who were
conducting the surveillance of the 2100 block
of Main Street on July 14, 1995.
3. The names and address[es] of all
individuals observed by police officers who
were suspected of being involved with drug
trafficking or drug use on the 2100 block of
Main Street on July 14, 1995 and the name of
the officer who made the observation.
Davis argues that several people were in the vicinity of the
residence at the time of the surveillance and that the identity
of those persons is exculpatory for several reasons. She
contends that several women were arrested for selling drugs, that
she did not sell drugs, that the purchaser did not identify her
as the seller of drugs, and that the police officer misidentified
her as the seller.
The information sought in paragraphs 2 and 3 was not shown
to be exculpatory. As to the request in paragraph 1, we hold
that the trial judge erred under the circumstances presented.
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The person who purchased the drugs could not identify Davis as
the seller. However, Officer Taylor who testified that he had
encountered Davis several times, unequivocally identified Davis
as the person who sold cocaine to Jones on July 14, 1995. Davis
argues that Officer Taylor mistakenly identified her as the
person who sold cocaine on July 14, 1995. The existence of
evidence that other African-American females were seen in the
vicinity of 2100 Main Street that same day might have a tendency
to prove Davis' defense that she was not the person Officer
Taylor observed selling drugs to Jones. Evidence is exculpatory
under Brady and, therefore discoverable, if Davis could have used
it for impeachment purposes. See United States v. Bagley, 473
U.S. 667, 676 (1985). These records were discoverable under
Brady.
B. RULE 3A:11 MOTION
In a Rule 3A:11 motion, Davis also sought "photographs (mug
shots) of Ida L. Davis, Rhonda Davis Robinson, Demetrius Y.
Lambert Bradley, and Cylethia Skinner." Under Rule 3A:11, an
accused can obtain items in the possession of the Commonwealth
"upon a showing that the items sought may be material to the
preparation of [the accused's] defense and that the request is
reasonable." Rule 3A:11(a)(2). Davis' counsel represented to
the judge that these persons were in the vicinity of the 2100
block of Main Street "on or about" July 14, 1995 and had been
arrested for selling drugs. Indeed, the evidence proved Robinson
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resided at 2110 Main Street. The identity of women who were
later arrested for selling drugs from that locale was material
not because Davis alleged that they were eyewitnesses, cf. Lowe
v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977),
but because it tended to support Davis' defense of
misidentification. See Bowman v. Commonwealth, 248 Va. 130,
133-36, 445 S.E.2d 110, 112-13 (1994). The additional assertion
that Davis shared some similar "features and physical
characteristics" was sufficient proof that the information may
have been material to the preparation of the case. Accordingly,
we hold that the trial judge erred, under the circumstances, in
denying the discovery motion.
V.
Finally, Davis' argument that we should dismiss the
prosecution because the trial judge erred in denying her motion
to strike the evidence lacks merit.
For the reasons stated, we remand the case for proceedings
consistent with this opinion.
Reversed and remanded.
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