Bly v. Com.

• Citation: 55 Va. App. 1,682 S.E.2d 556
• Decision Date: 15 September 2009
• Docket Number: Record No. 2948-07-3.
• Parties: Lindsay Alan BLY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

682 S.E.2d 556

55 Va. App. 1

Lindsay Alan BLY v. COMMONWEALTH of Virginia.

Record No. 2948-07-3.

Court of Appeals of Virginia, Richmond.

September 15, 2009.

Ross S. Haine, Assistant Public Defender, for appellant.

Richard B. Smith, Special Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

UPON A REHEARING EN BANC

McCLANAHAN, Judge.

Lindsay Alan Bly was convicted in a bench trial of distributing an imitation controlled substance and distributing methamphetamine, both in violation of Code § 18.2-248. On appeal, Bly contends the trial court erred in denying his motion for a new trial on the grounds that the Commonwealth failed to disclose impeachment evidence concerning the confidential informant who testified against him, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A panel majority of this Court agreed with Bly and reversed the decision of the trial court. We granted a petition for rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en banc, we affirm the trial court.

BACKGROUND

We review the evidence in the "light most favorable" to the Commonwealth as the prevailing party below. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citations omitted). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Kelly v. Commonwealth, 41 Va.App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (internal quotation marks and citations omitted).

Bly's two drug distribution convictions arose from an investigation conducted by the Rockbridge Regional Drug Task Force ("Task Force"), comprised of Investigators Slagle, McFaddin, Mays, and Conner. At that time, the Task Force was using Robert Hoyle, as a confidential informant, to make drug "buys" from individuals suspected of illegally selling controlled substances.

May 17, 2004 Offense

On May 17, 2004, as Investigator Slagle testified at trial, the members of the Task Force met with Hoyle in preparation for a purchase of cocaine from Bly. At the meeting, Slagle "thoroughly" searched Hoyle "to make sure he had no illegal contraband already on his person," and no money. After none of those items were found on Hoyle, he was given fifty dollars in "marked money" with which to make the purchase. The Task Force members then drove Hoyle to an area near the back of the apartment building in the City of Buena Vista where Bly lived. From that location, Slagle observed Hoyle walk to the back porch of the building. Slagle then saw Bly, who was standing on the back porch and "actually greeted" Hoyle upon his arrival. Slagle also saw Bly's wife standing on the back porch at the same time. Thereafter, Slagle watched Bly and Hoyle, along with Bly's wife, enter the back entrance of the apartment building together. Having been to Bly's apartment during a previous investigation, Slagle explained that Bly's apartment was the first one on the left from the back entrance of the building.

Slagle further testified that Hoyle was only in the apartment building "approximately three minutes." Upon exiting the building, Hoyle walked back to the vehicle where the Task Force members were waiting, and entered the vehicle. Hoyle then "produced a small bag of white powder" that "look[ed] like powder cocaine," and stated that he purchased it from Bly. Hoyle turned the contraband over to Investigator McFaddin. At that time, Slagle searched Hoyle for other contraband and money on his person and found none. Slagle later obtained a laboratory analysis of the "white powdery substance," which revealed it was an imitation, i.e., it contained no controlled substance.

Hoyle likewise explained in his testimony that on May 17, 2004, while working as a confidential informant for the Task Force, he purchased from Bly at Bly's apartment what was purportedly cocaine. He also reiterated that, beforehand, the Task Force members thoroughly searched him for drugs and money, none of which he had, and then delivered him to a location near Bly's apartment building. Hoyle further testified that he subsequently made the purchase of the contraband from Bly with money he received from the Task Force, that he was in and out of Bly's apartment building within approximately two to three minutes, that he immediately turned over to the Task Force the bagged substance he received from Bly, and that he was again searched.

June 3, 2004 Offense

Then on June 3, 2004, Investigators Mays and Conner met with Hoyle, as both of these investigators testified, for the purpose of arranging Hoyle's second drug "buy" from Bly, which was to be a methamphetamine purchase. At this meeting, Mays conducted a search of Hoyle for "money [and] narcotics" and found none. Mays explained that the search was not "just a pat-down." He "[went] into [Bly's] pockets, his pockets [were] emptied; his shoes [were] taken off; his waistband, crotch area [were] checked; anywhere that [he] could feasibly hide something ... [was] checked."

Mays and Conner then gave Hoyle one hundred dollars of "marked" money to make the purchase, and delivered him to an alley that led to Bly's apartment building. They watched Hoyle walk down the alley to the apartment building as they drove to a location directly behind the building. They next observed Hoyle enter the back of the apartment building, and then exit the building seven to eight minutes later. Hoyle returned to Mays' and Conner's vehicle, and handed Conner a small "baggie" containing a "pink, rock-like substance," which Hoyle said he purchased from Bly. Concluding the operation by conducting a final search of Hoyle, Conner "found no drugs on him." Laboratory analysis revealed that the baggie, in fact, contained methamphetamine, a Schedule I or II controlled substance.

Consistent with the testimony of Mays and Conner, Hoyle testified that on June 3, 2004, while still working as a confidential informant with the Task Force, he purchased "meth" from Bly at Bly's apartment. He also confirmed that, as with the earlier "buy," a member of the Task Force searched him beforehand, and gave him money to make the purchase. Hoyle further indicated he was not "surprise[d]" by the "actual Task Force numbers" that showed he was in Bly's apartment building "approximately seven minutes." Before entering Bly's apartment for this second "buy," Hoyle also explained, he walked upstairs and knocked on the apartment door of another resident with whom he was acquainted, but "[n]o one was there"—thus adding to the time he was in the apartment building.

Bly testified in his own defense, and denied even seeing Hoyle on either May 17, 2004 or June 3, 2004, after claiming to have specific recollection of those two days. In fact, Bly further stated that earlier in 2004 he told Hoyle to stay away from the apartment building where Bly lived (which he also purportedly managed for his parents) or "I will be serving papers on you" and that Hoyle "complied."

When Bly was arrested on the drug distribution charges, he admitted to Investigator Slagle that he "buy[s] drugs" and "smoke[s] weed," but denied that he "sells any." He also admitted to Slagle that he occasionally "smokes dope, or weed, with his brother," who worked at Dana Corporation, during his brother's lunch hour. Bly was subsequently convicted, in a bench trial, on each of the drug charges, i.e., distributing an imitation controlled substance on May 17, 2004, and distributing methamphetamine on June 3, 2004, in violation of Code § 18.2-248.

Before being sentenced, Bly filed a motion to set aside the convictions and grant him a new trial. He contended in his motion that the Commonwealth, in violation of Brady, failed to disclose that Hoyle, while working for the Task Force as a paid informant in numerous cases, "was lying about at least some of the buys he was claiming to have made." In support of this allegation, Bly filed a copy of a letter, dated August 17, 2005, from the Commonwealth's Attorney for Rockbridge County to an attorney in another pending criminal case. The Commonwealth's Attorney represented in the letter that it was in response to defense counsel's motion for discovery and addressed information requested about Hoyle, in connection to his work with the Task Force. The letter specifically provided, in relevant part, as follows:

Please treat this letter as my response to your Motion for Discovery and Inspection filed in the above captioned case....

Between January, 2004, and August, 2004, Robert Hoyle made a total of 83 controlled buys for the Drug Task Force in Rockbridge County and the City of Buena Vista....

* * * * * *

With respect to paragraph F of your Motion, and some of which you already know, Hoyle alleged that he made purchases of controlled substances on June 15th and 16th, 2004 from [J.B.] in the South River Area of Rockbridge County. [J.B.] was charged by direct indictment, returned by the Grand Jury on November 1, 2004. [J.B.] was arrested on or about November 12, 2004, at which time it was discovered that he [J.B.] was in custody in the Rockbridge Regional Jail and could not have made the sale as alleged.

Investigator McFaddin advises that there was one other incident in which Hoyle purchased an illegal substance from someone he (Hoyle) identified as a certain individual in Buena Vista, Virginia. One of the Task Force Officers thought they may have seen that same individual in another location at the same time that Hoyle said he made the purchase. Hoyle was sent back to the location of the purchase to try to confirm his identification of the seller, but advised that no one came to the door. In this instance, no charges were ever placed...