Mercer v. Commonwealth

• Decision Date: 22 March 2016
• Docket Number: Record No. 1897–14–2.
• Citation: 783 S.E.2d 56,66 Va.App. 139
• Parties: James Edward MERCER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

66 Va.App. 139

783 S.E.2d 56

James Edward MERCER

v.COMMONWEALTH of Virginia.

Record No. 1897–14–2.

Court of Appeals of Virginia, Richmond.

March 22, 2016.

J. Todd Duval (McDonald, Sutton & Duval, PLC, on brief), Richmond, for appellant.

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUMPHREYS, BEALES and ATLEE, JJ.

HUMPHREYS, Judge.

James Edward Mercer ("Mercer") appeals the October 7, 2014 decision of the Circuit Court of Caroline County (the "circuit court") finding that no Brady violation occurred in his case and its decision denying Mercer's motion to set aside the verdict and for a new trial. Mercer's single assignment of error is that the circuit court's ruling constitutes a violation of his Fourteenth Amendment rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because of "the Commonwealth's failure to disclose evidence about the quality and reliability of the work by the lab technician who performed the certificates of analysis upon which the Commonwealth's case relied."

I. BACKGROUND

In March 2014, a Caroline County grand jury issued three indictments against Mercer for distribution of a Schedule I or II drug in violation of Code § 18.2–248. On April 10, 2014, pursuant to Brady, Mercer filed a motion for disclosure of favorable evidence and statements. At Mercer's bench trial, on June 18, 2014, he entered a plea of not guilty. Additionally, Mercer answered in the affirmative that it was his intent to be tried without a jury.

At trial, Deputy Justin Cecil ("Deputy Cecil") and Investigator Christopher Wright ("Investigator Wright") of the Caroline County Sheriff's Department ("the Department") testified for the Commonwealth. Deputy Cecil testified that controlled purchases were conducted by the Department on September 27, 2013, October 8, 2013, and October 16, 2013. Investigator Wright testified that Mercer was the target of a controlled purchase operation and that the Department employed Charity O'Connell as its confidential informant ("C.I."). Prior to each controlled purchase, Investigator Wright searched the person of the C.I. and Deputy Cecil searched the C.I.'s vehicle for any contraband. No contraband was ever found in these pre-purchase searches. Also, for each controlled purchase, Investigator Wright equipped the C.I. with an audio wire and gave her $100 in order to purchase narcotics.

The September 27, 2013 and October 16, 2013 controlled purchases were conducted at 23076 Telegraph Road. The October 8, 2013 controlled purchase occurred in a black Ford F–150 at the C.I.'s home. Every controlled purchase was audibly recorded by the Department. For controlled purchases on September 27, 2013 and October 16, 2013, Investigator Wright testified that he was unable to see the actual residence from his surveillance point. He also testified that he could not see who was inside the black Ford F–150 during the second controlled purchase on October 8, 2013. However, he testified that he had become familiar with Mercer's voice from listening to known tapes of Mercer's conversations at the Pamunkey Regional Jail and that he recognized the voice of the person in the black Ford F–150 during the controlled purchase on October 8, 2013 to be Mercer's voice. Additionally, the C.I. testified on behalf of the Commonwealth that on all three occasions she purchased cocaine from Mercer, and, after each controlled purchase, the C.I. provided Investigator Wright with the purchased narcotics. Mercer elected not to present any evidence during his trial.

Each of the three narcotics purchases was submitted to the Department of Forensic Science ("DFS") for analysis. Nancy M. Peace ("Peace"), a forensic scientist employed by DFS, was the only forensic scientist to sign each certificate of analysis associated with Mercer's case. All three certificates specified that the narcotics recovered in the controlled purchases were cocaine.

On March 24, 2014, prior to trial and in accordance with Code §§ 19.2–187, 19.2–187.1, the Commonwealth provided Mercer with notice that it intended to offer each of the certificates of analysis into evidence. Mercer did not exercise his right to object to the admission of the certificates of analysis pursuant to Code § 19.2–187.1(B) and instead require the presence and testimony of Peace to establish the facts and scientific opinions contained in the certificates. At the bench trial, on June 18, 2014, each certificate was offered and admitted into evidence without objection. At the conclusion of the Commonwealth's evidence, Mercer made a motion to strike the evidence against him. The circuit court overruled Mercer's motion to strike. Mercer renewed his motion to strike the evidence, and the circuit court denied that motion as well. On June 26, 2014, the circuit court found Mercer guilty on three counts of distribution of a Schedule I or II drug, in violation of Code § 18.2–248.

On September 17, 2014, the circuit court sentenced Mercer to five years on each count with three years suspended for each. Thus, he must serve a total of 15 years' incarceration, with nine years suspended. Two days after his sentencing hearing, on September 19, 2014, the King William County Commonwealth's Attorney, Matthew R. Kite, sent a letter notifying Mercer that Peace had been terminated for cause from DFS. Peace had been terminated by letter on August 11, 2014.¹

On October 1, 2014, Mercer filed a motion to set aside the verdict and for a new trial arguing that his constitutional rights under Brady were violated because the Commonwealth had not made him aware of Peace's termination for cause from DFS. Thus, Mercer argued, doubt had been cast "upon the credibility of the analyst having signed the certificates of analysis [creating] a material issue, in that the nature and character of the drug being distributed is the corpus delicti of the crime." The Commonwealth submitted its response, on October 6, 2014, noting that Mercer's trial occurred nearly two months before it became aware of Peace's termination; therefore, it could not have provided Mercer the information regarding Peace's termination prior to or during trial.

After learning of Peace's termination, the Commonwealth promptly requested that any substances tested by Peace in cases then pending trial be resubmitted for testing by another analyst.² Additionally, the Commonwealth reviewed Peace's personnel records and spoke with the supervisor of DFS's controlled substances section. According to the Commonwealth, it determined that 1) DFS utilizes a quality control program which mandates a full technical peer review of the data in every case before a certificate of analysis is released in order to determine whether the original analyst's finding is supported by the data; 2) in May 2014, a technical review of Peace's casework revealed that she had failed to recognize and identify Salvinorin A, a Schedule I controlled substance—the failure was caught by technical peer review and corrected before a certificate of analysis was released; 3) Peace, on two previous occasions, had also failed to identify the presence of a controlled substance—each of those two failures was also caught by technical peer review and corrected before a certificate of analysis was released; 4) Peace never misidentified anything benign as a controlled substance, rather, her errors were in failing to identify the presence of a controlled substance; 5) due to the peer review system, even when Peace initially failed to identify the presence of a controlled substance, DFS never released a certificate of analysis that was incorrect; and 6) since Peace's termination, thirty-five substances previously tested by Peace were resubmitted for testing by another analyst and in all thirty-five instances the new analyst confirmed Peace's original findings. On October 7, 2014, the circuit court found no Brady violation in this case and denied Mercer's motion to set aside the verdict and for a new trial.³

II. ANALYSIS

A. Standard of Review

On appeal, this Court "will state the evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Bly v. Commonwealth, 280 Va. 656, 658, 702 S.E.2d 120, 121 (2010). Under Brady, "the suppression by the prosecution of evidence favorable to an accused upon request 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." 373 U.S. at 87, 83 S.Ct. at 1196–97. The Commonwealth's disclosure duty encompasses impeachment evidence as well as exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). It is now a settled principle that there are three components of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it impeaches a witness regarding a material fact; (2) that evidence must have been suppressed by the State, either willfully or inadvertently, thereby denying a defendant its use at trial; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). "The accused has the burden of establishing each of these three components to prevail on a Brady claim." Commonwealth v. Tuma, 285 Va. 629, 635, 740 S.E.2d 14, 17 (2013).

The first two Brady components require the evidence to be favorable to the defendant and to have been suppressed by the prosecution. The third Brady component is that the defendant must prove prejudice. "Favorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ " Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 (quoting Strickland v. Washington, 466 U.S. 668, 694, ...