Wright v. Commonwealth
| Decision Date | 10 May 2022 |
| Docket Number | 0566-21-3 |
| Parties | DERRICK LASHAWN WRIGHT v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF HENRY COUNTY David V. Williams, Judge
Heath L. Sabin (Sabin Law Office, P.C., on brief), for appellant.
Ken J Baldassari, Assistant Attorney General (Mark R. Herring [1] Attorney General, on brief), for appellee.
Present: Judges Russell, Friedman and Callins Argued at Salem, Virginia
Following a bench trial, the Henry County Circuit Court convicted appellant, Derrick Lashawn Wright, of three counts of distribution of a Schedule I or II controlled substance second or subsequent offense, in violation of Code § 18.2-248. On appeal, Wright asserts that the trial court abused its discretion in denying his motion for a mistrial and erred in finding the evidence sufficient to support the convictions. For the following reasons, we disagree and affirm his convictions.
BACKGROUND[2]
In the summer of 2018, Patrick Golden was working as a paid confidential informant for the Henry County Sheriff's Office. On July 20, July 26, and August 1, Golden met with investigators from the sheriff's office to assist with controlled purchases of cocaine from an individual known to him as "Big D," who was later identified as Wright. Golden had known "Big D" for "a couple of years." Henry Oakes also was working as a confidential informant for the sheriff's office and served as Golden's driver for each controlled buy.
Each controlled purchase followed the same procedure. Golden and Oakes first met with the investigators at an agreed meeting place. Oakes testified that his sole purpose was to drive Golden to each controlled buy and drive him back. The investigators searched Golden, Oakes, and Oakes' car to confirm that no contraband was present. Golden was outfitted with a recording device and given buy money. Investigators then followed Oakes and Golden to Southland Drive and watched the feed from Golden's recording device in real time. Because Southland Drive is a dead-end street, the investigators did not follow Oakes and Golden onto that road, but "pick[ed] back up behind them" when they left Southland Drive and returned to the meet location. Each time, Golden gave the purchased cocaine and his recording device to the investigators who again searched Golden, Oakes, and Oakes' car for contraband. Oakes never left his car, did not see Wright on any occasion, and did not see the cocaine Golden purchased.
Before the first purchase on July 20, 2018, Henry County Sheriff's Investigator Brummitt searched Golden's "outer clothing" and his shoes, but he did not "search inside [Golden's] clothing," or look "inside his underwear or down low in his crotch." Brummitt also searched Oakes. Oakes then drove Golden to Wright's house on Southland Drive, where Golden then entered Wright's home, bought the drugs, and left. The transaction was captured on Golden's recording device; the recording depicted a man with facial hair selling cocaine to Golden. No one else was present during the transaction. At trial, the trial court viewed the recording and Golden identified Wright as the person who sold him the cocaine.
To make the July 26, 2018 purchase, Golden called Wright and ordered "a ball," which Golden explained was an "eight ball of cocaine." Golden confirmed that Wright's phone number was the number he called, and he recognized Wright's voice as they spoke. The phone call was made in the investigators' presence and recorded, and the recording was played at trial. After Golden ordered the cocaine, Brummitt searched his "outer clothing garments" and his shoes. He also searched Oakes. Oakes then drove Golden to Southland Drive and parked "right behind [Wright's] vehicle" on the street. Golden left Oakes' car and got into Wright's car. Golden purchased the cocaine from Wright and then returned to Oakes' car. A recording of the transaction was captured on Golden's recording device and played at trial. Wright is not depicted in the recording, but Golden identified him as the person who sold him the cocaine on that occasion.
The third and final purchase occurred on August 1, 2018. Before meeting with the investigators, Golden communicated with Wright via "text messages and calls, that day." After Golden arranged to purchase cocaine, Investigator Foley searched him, "start[ing] at the head and work[ing] [his] way to the feet." Foley turned Golden's pockets "inside out," and he searched "all outer clothing and socks and shoes." Foley searched Oakes in the same manner. Oakes then drove Golden to Southland Drive and parked on the street. Golden entered Wright's vehicle and purchased an "eight ball" of cocaine. The transaction was recorded and played at trial. The video shows Wright selling cocaine to Golden. Golden confirmed that Wright was the person on the video selling him the cocaine.
On cross-examination, Golden repeatedly testified that he could not recall certain details of each transaction. For example, he could not recall who he interacted with at the sheriff's office, and he did not recognize any of the police witnesses. He could not recall how much he was paid or how he was compensated for his services. He could not remember Wright's street address. Golden also described search procedures that differed from those described by investigators. Golden conceded that he was buying cocaine from another individual, Ja.B., [3] on Southland Drive during the same time frame.
At the conclusion of the evidence, [4] Wright moved to strike the evidence as insufficient "at least, on the first two [indictments for the July 20, 2018 and July 26, 2018 controlled purchases] as you can't identify who is on the video; that the witness, we would argue, the Confidential Informant, is very unreliable." He also moved to strike "on the plan of the search." Wright also moved for a mistrial for an alleged Brady[5] violation because "there was another individual on that road who they were buying from at the same time with the same informant"; he argued that the information about the other transactions was exculpatory evidence that the Commonwealth had not disclosed to the defense. The trial court denied both motions.
In his closing argument, Wright contended that the evidence failed to prove he was the person who sold Golden the cocaine. Wright argued that Golden gave inconsistent testimony and had perjured himself. Wright also asserted that the search of Golden was "cursory" and did not negate the possibility that Golden already had the cocaine on his person before each transaction. The trial court found that Golden "was not the most cooperative witness" but concluded that the Commonwealth presented sufficient evidence to corroborate Golden's testimony and convicted Wright on all three charges.
Post-trial, Wright renewed his motion for a mistrial based on the alleged Brady violation. At the post-trial hearing on the motion, [6] Wright testified that other individuals who lived on Southland Drive were involved in, or charged with, drug transactions when these offenses occurred. Wright specifically identified Je.B. and D.L. as people who sold drugs on Southland Drive. Je.B. also testified and confirmed that he had been charged with distributing drugs to Golden from his Southland Drive address. Je.B. stated that, to his knowledge, D.L. had been convicted of selling drugs from his own address on Southland Drive in 2018. The trial court denied Wright's post-trial motion for a mistrial. This appeal followed.
"The decision whether to grant a mistrial motion is a matter submitted to the circuit court's sound discretion." Castillo v. Commonwealth, 70 Va.App. 394, 445 (2019) (quoting Lewis v. Commonwealth, 269 Va. 209, 213 (2005)). If the trial court commits an error of law, though, then "it 'by definition abuses its discretion.'" Warnick v. Commonwealth, 72 Va.App. 251, 263 (2020) (quoting Coffman v. Commonwealth, 67 Va.App. 163, 166 (2017)). In ruling on a motion for a mistrial, the trial court "must make an initial factual determination, in the light of all the circumstances of the case, whether the defendant's rights [have] been so indelibly prejudiced as to require a new trial." Castillo, 70 Va.App. at 445 (quoting LeVasseur v. Commonwealth, 225 Va. 564, 589 (1983)). "Unless we can say as a matter of law that this determination was wrong, it will not be disturbed on appeal." Id. (quoting LeVasseur, 225 Va. at 589).
Wright asserts that the trial court erred in refusing to grant a mistrial because the Commonwealth failed to meet its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, he argues that if the Commonwealth had disclosed the fact that Golden "was conducting undercover buys with at least three other individuals on Southland Drive," it is "possible and likely that had this information been disclosed that one or more of these cases would have been dismissed." We disagree with the premise of Wright's argument because Wright failed to establish a Brady violation.
"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.'" Mercer v. Commonwealth, 66 Va.App. 139, 146 (2016) (quoting Brady, 373 U.S. at 87). There are three components to establishing a Brady violation:
a) The evidence not disclosed to the accused must be favorable to the accused, either because it is exculpatory, or because it may be used for impeachment; b) the evidence not disclosed must have been withheld by the Commonwealth either willfully or inadvertently;...
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