Moreno v. Com.

• Citation: 10 Va.App. 408,392 S.E.2d 836
• Decision Date: 29 May 1990
• Docket Number: No. 0760-88-4,0760-88-4
• Parties: Jorge Samuel MORENO v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 836

392 S.E.2d 836

10 Va.App. 408

Jorge Samuel MORENO v. COMMONWEALTH of Virginia.

Record No. 0760-88-4.

Court of Appeals of Virginia.

May 29, 1990.

Timothy J. McGary, Fairfax, for appellant.

Birdie H. Jamison, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

Jorge Samuel Moreno appeals his conviction for possession of cocaine with intent to distribute in violation of Code § 18.2-248 for which he received a twenty years penitentiary sentence and a $30,000 fine. Despite a discovery order to provide Moreno with exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Commonwealth did not provide to him until mid-trial evidence which tended to impeach one of the Commonwealth's primary witnesses, who until then had been a confidential informant. The Commonwealth concedes that the impeachment evidence, consisting of the informant's criminal record and an informant's agreement to aid the police, is exculpatory and therefore was discoverable under Brady. Moreno argues that the late disclosure was prejudicial because it prevented him from having an opportunity to investigate effectively other available evidence with which to impeach the witness. Moreno contends that he was unable to ameliorate the prejudice occasioned by late disclosure despite the trial court's granting a continuance, and that under the circumstances, the trial court erred by not excluding the testimony of the confidential informant. Alternatively, he contends that even if actual prejudice was not demonstrated, where the Commonwealth has failed to show clearly that the delay was in good faith, late disclosure should be deemed per se prejudicial.

Moreno's argument for exclusion of the witness' testimony was based solely on the theory that to allow the witness to testify without timely discovery was prejudicial. He did not contend or attempt to show that the mid-trial appearance of the informant was an intentional subversion of the Commonwealth's discovery obligation. He did not claim or attempt to prove that the Commonwealth's attorney did not act in good faith when he stated that the informant would not be called as a witness or that he was doing so intentionally to avoid timely disclosure. Therefore, on appeal, Moreno's challenge is limited to whether he demonstrated prejudice as a result of late disclosure, Rule 5A:18; Stotler v. Commonwealth, 2 Va.App. 481, 483, 346 S.E.2d 39, 40 (1986), or whether on these facts late disclosure should be deemed prejudicial.

We uphold the trial court's finding that Moreno did not prove that the late disclosure was prejudicial. Thus, his constitutional due process right, as defined in Brady v. Maryland to call for evidence in his favor and at a time sufficient to prepare and present his defense was not violated. In the absence of evidence that late disclosure prejudiced the defense, or absent an objection and a trial court finding that the prosecutor deliberately violated his discovery duties, it is not an abuse of discretion for the trial court to refuse to exclude the challenged evidence. See Code § 19.2-265.4. Accordingly, we affirm the defendant's conviction.

Moreno was arrested for distributing cocaine on November 25, 1987, as part of an undercover sting operation. The purchase of the drugs from Moreno was arranged by an informant, Curtis Todd. The Commonwealth's attorney decided prior to trial not to call Todd as a witness in order to keep Todd's identity confidential. Instead, the Commonwealth chose to rely upon the testimony of the police investigators and of Antonio Rodriguez, Moreno's companion who accompanied him to the drug sale. Presumably, Rodriguez would testify that he accompanied Moreno to the location where the sale was to occur and when he, Rodriguez, exited the vehicle and was approached by a police officer he fled, discarding his coat which contained eight ounces of cocaine that Moreno intended for sale to Todd.

Moreno filed a discovery motion requesting that the Commonwealth produce all exculpatory evidence. He did not request the identity of any informants. Because the Commonwealth's attorney had decided not to use Todd at trial, he provided Moreno impeachment evidence only for Rodriguez. Moreno, knowing that another person was involved in the transaction, anticipated that the Commonwealth might, nevertheless, be planning to call Todd at trial. Thus, Moreno sought to have the court define and clarify on the record the Commonwealth's discovery duties. At Moreno's behest, as an addition to the discovery motion and order, the parties stipulated that the Commonwealth's duty to disclose exculpatory evidence required it to produce evidence that could be used to impeach its witnesses. The court ordered that all discovery be made prior to trial. The Commonwealth asserted that, because it did not intend to call the informant as a witness, it was not obligated to furnish impeachment evidence for the informant.

Prior to trial, the Commonwealth had provided Moreno with the criminal conviction record of Rodriguez. Moreno utilized that evidence to conduct his own pretrial investigation of Rodriguez, which revealed additional significant evidence that was used effectively at trial to impeach Rodriguez. After Rodriguez testified, the Commonwealth's attorney stated his dissatisfaction with Rodriguez's testimony and with the strength of the Commonwealth's case. Investigator Wolfe, who had coordinated Todd's assistance with the police telephoned Todd to request that he testify. Todd was immediately available. The prosecutor explained to the trial judge that "after hearing that Mr. Rodriguez's testimony was not particularly credible," Mr. Todd "agreed to come in and testify on behalf of the Commonwealth." At this point, the Commonwealth provided Moreno, for the first time, with evidence of Todd's criminal conviction record. Moreno argued that calling Todd without previously having provided this impeachment evidence violated the discovery order. Although Moreno did not directly accuse the Commonwealth's attorney of being guileful, Moreno protested the unfairness of being surprised mid-trial by calling the witness without having been provided the impeachment evidence to which he was entitled. Moreno argued that the late disclosure of the impeachment evidence prejudiced him by denying him an opportunity to investigate Todd and possibly unearth additional exculpatory evidence, as he had with Rodriguez. Moreno further argued that the undue prejudice could only be cured by excluding Todd's testimony, which he made a motion to do. Instead, the trial court granted an overnight continuance, recessing at 4:00 p.m., just before Todd testified.

The following morning, over Moreno's continued objection, Todd testified. Moreno did not request a further continuance. On cross-examination, in addition to admitting to a criminal record, Todd testified that he had an agreement with the police whereby he would arrange drug transactions in exchange for leniency in prosecuting three cocaine distribution charges pending against him and for a recommendation to expunge certain criminal records. Todd testified that, after discussing the arrangement with Investigator Wolfe, he had signed a written agreement to that effect to cooperate with the police. This written agreement had not been provided to Moreno. The Commonwealth's attorney disavowed any prior knowledge of the agreement, although Investigator Wolfe, with whom Todd worked, was integrally involved with Moreno's prosecution. The agreement was retrieved from police files during a recess and through cross-examination was introduced in evidence.

Attached to the written informant's agreement was documentation which detailed an arrangement whereby Todd was remunerated based on the number of drug transactions which he arranged that resulted in successful prosecution. Todd testified that his compensation came as forgiveness from repaying money which the authorities had previously loaned him. He testified that the amount credited on the loan depended upon the number of persons apprehended and the quantity of drugs seized. Todd denied that he received any credit against the loan for helping apprehend Moreno. He did acknowledge on cross-examination that he encouraged as many people as possible to sell as much drugs as they could to Investigator Wolfe in order to win himself favor and to earn credit against his "loans." He admitted that he was not above using deception to that end.

Defense counsel extensively used the impeachment evidence provided by the Commonwealth to cross-examine Todd in order to show prosecutorial bias by the benefits that Todd stood to receive from helping make drug arrests. Defense counsel also elicited from Todd on cross-examination, contrary to the Commonwealth's earlier representation to the court, that he had not been asked to testify, but rather was appearing against the wishes of the Commonwealth out of a personal sense of duty to his country and because it was in his "line of work" as one planning to be "a police officer next year."

Discovery Requirement

Moreno asserts that the late disclosure of the impeachment evidence against Todd constitutes a discovery violation sufficient, in itself, to require reversal. The Commonwealth denies that a violation occurred. The Commonwealth first argues that the terms of Todd's agreement to be an informant were not discoverable under Brady because Todd did not agree to cooperate in this particular case or receive any benefit for doing so. The Commonwealth next argues that no violation occurred because the impeachment evidence was timely provided at the first practicable opportunity, which was as soon as the informant agreed to testify and as soon as the prosecutor became aware of the existence of the evidence. Both arguments are without merit.

An agreement by an...