Opinion
Case No. FE-2011-116
02-09-2012
Commonwealth of Virginia v. Javier-Paz
Mr. Darwyn L. Easley, Esq. Easley Law Firm Mr. Mark J. Sullivan, Esq. Office of the Commonwealth's Attorney
MARCUS D. WILLIAMS
JANE MAPUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRCDE
LORRAINE NORDLUND
BRETT A, KASSABIAN
MICHAEL F. DEVINE
JUDGES
BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A FORTKORT
RICHARD J. JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M, LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIOGE, JR.
MICHAEL P. MCWEENY
GAYLORD L FINCH, JR.
STANLEY P. KLEIN
RETIRED JUDGES
February 9, 2012
Dear Counsel:
By motion filed with this Court November 18, 2011, entitled Notice and Motion for Dismissal, and by his Memorandum of Points and Authorities filed November 30, 2011, Defendant Alexis Javier-Paz, by counsel, alleges a discovery violation by the Commonwealth, and seeks entry of an Order of Dismissal pursuant to Virginia Code § 19.2-265.4. In his motion, the Defendant alleges that the Commonwealth: a) provided no evidence of cell phones in discovery (Def. Motion p. 1); b) provided no evidence of a unique seal used at trial as demonstrative evidence in discovery (Def. Motion p. 5); c) provided no evidence of the truck's "original seal" in discovery (Def. Motion p. 6); failed to tell the defense about the existence of alleged cell phones (Def. Motion p. 5); and e) failed to tell the defense where in the truck the "original seal" could be found (Def. Motion p. 2).
On December 2, 2011, the Commonwealth's Attorney filed her Memorandum in Opposition to Defendant's Motion to Dismiss, arguing that the terms of the August 16, 2011, Discovery Order were not violated, and that Defendant's failure to timely object to certain evidence at trial operates to waive any right Defendant may have to raise issues for the first time in a post-trial motion. On December 8, 2011, the Defendant filed his Defense Response to Commonwealth's Memorandum in Opposition to Defense Motion to Dismiss, arguing that the defense relied upon the Commonwealth's nondisclosure of exculpatory evidence in making key decisions regarding trial preparation and strategy. After careful consideration of the Defendant's motion, the Commonwealth's response, and a review of the record of the case which includes the transcript of the trial, the Court denies the Defendant's Motion for Dismissal.
Background
The instant motion comes before the Court after a jury trial August 1618, 2011, on charges against Defendant, Alexis Javier-Paz of possession with intent to distribute more than five pounds of marijuana (Count I), transporting five pounds or more of marijuana into the Commonwealth (Count II), and possession of a controlled substance (Count III). The jury returned guilty verdicts on all three counts. On Defendant's Motion on the day of trial and prior to the commencement of the case before the jury, the Court entered its August 16, 2011, Discovery Order, which pertinently requires,
That the Commonwealth of Virginia provide the Accused or permit the Accused to inspect...any and all tangible, demonstrative and physical evidence...which the Commonwealth will seek to place into evidence or use as an exhibit at the trial of the Accused.
By letter on November 28, 2011, the Commonwealth alerted the Defendant to evidence discovered after trial, stating in part:
Subsequent to the completion of the trial regarding Mr. Paz, Officer Mamalis located the missing seal installed by Promtus next to a pair of bolt cutters in a compartment on the passenger side of the truck. The officer confirmed that serial/tracking numbers matched the serial/tracking numbers on the invoice.
The Court held a hearing December 9, 2011 on Defendant's instant motion where it ruled there to be no evidence that the Commonwealth had knowledge of the "missing seal" at the time of trial, and therefore the Commonwealth's late disclosure of evidence did not violate the Discovery Order. The matter was continued until February 10, 2012 so that the Court may review transcripts of trial in resolving the balance of Defendant's Motion. Also on February 10, 2012, the Court is scheduled to hold a hearing to sentence Defendant on the three jury verdicts.
Analysis
The Commonwealth's late disclosure of either exculpatory or inculpatory evidence may be grounds for reversible error. The court's failure to remedy the Commonwealth's untimely disclosure of exculpatory evidence constitutes reversible error if the defendant demonstrates that the evidence is "material either to guilt or to punishment." Smoot v. Commonwealth, 37 Va. App. 495, 502 (2002) citing Brady v. Maryland, 373 U.S. 83, 87 (1963); see also United States v. Bagley, 473 U.S. 667, 678 (1985). The standard for demonstrating reversible error differs where the evidence is exculpatory because a defendant's right to exculpatory evidence invokes his or her right to due process of law. See Brady, 373 U.S. at 87 ("Suppression by the prosecution of evidence favorable to an accused upon request violates due process . . ."); Lomax v. Commonwealth, 228 Va. 168, 173 (1984) ("The Commonwealth has a duty to disclose [exculpatory evidence] in sufficient time to afford an accused an opportunity to assess and develop the evidence for trial."); Gilchrist v. Commonwealth, 227 Va. 540, 547 (1984).
The Court finds as a matter of law that the Commonwealth's post-trial discovery of the "missing seal" demonstrates that at the time of his arrest, the Defendant had control over more than one seal. It logically follows that the "missing seal," with numbers matching the invoice, was at some point removed from the trailer controlled by the Defendant, giving the Defendant access to the trailer. As Defendant's control over both seals at issue would objectively tend to demonstrate Defendant's intentional possession of marijuana and his intent to distribute the controlled substance, it is inculpatory evidence, not exculpatory evidence. Because the evidence is not exculpatory, there is no violation under Brady v. Maryland, and the Defendant's due process rights are not implicated. Thus the question becomes whether the Commonwealth's late evidence prejudiced the Defendant by changing either the defense's trial strategy or the outcome of the trial. See Davis v. Commonwealth, 230 Va. 201, 204 (1985) (holding, "When a discovery violation does not prejudice the substantial rights of a defendant trial court does not err in admitting undisclosed evidence").
A defendant's access to inculpatory evidence stems only from the Rules of the Supreme Court of Virginia and related statute. See Rule 3A:11; Virginia Code § 19.2-265.4; Walker v. Commonwealth, 258 Va. 54, 63 (1999) (holding neither due process nor Brady require the Commonwealth to disclose inculpatory evidence). To constitute reversible error, the Commonwealth's late disclosure of inculpatory evidence must prejudice the defendant's case. Smoot, 37 Va. App. at 502 (citing Davis, 230 Va. at 204; Conway v. Commonwealth, 12 Va. App. 711, 716 (1991). To show prejudice, the defendant must demonstrate how timely disclosure would have changed his trial strategy or affected the outcome of the trial. See Davis, 230 Va. at 204 (holding that to demonstrate prejudice from the nondisclosure of inculpatory evidence, defense counsel must "suggest to the trial court how their earlier disclosure would have benefited [defendant's] defense or altered the course of the trial"); see also Knight v. Commonwealth, 18 Va. App. 207, 215 (1994) (holding that to demonstrate prejudice from the late disclosure of inculpatory evidence, defendant must "[offer an explanation] as to how his trial tactics might have been different if [the evidence] had been disclosed before trial"); Conway, 12 Va. App. at 716 (noting that admission of nondisclosed evidence is reversible upon a showing that nondisclosure prejudiced defendant's "case" or "defense").
In his Motion to Dismiss, the Defendant's counsel claims the Commonwealth failed to provide material evidence to the defense, which "prejudiced the defense by curtailing, and indeed thwarting, trial strategy and arguments that would have been advanced on Mr. Javier-Paz's behalf." Def. Motion at 5. The Court is not convinced.
First, the August 16, 2011 Discovery Order governing the Commonwealth's duties of discovery began that day, the first day of trial. It is the Court's position that counsel for the Defendant had opportunity to inspect and did, in fact, inspect the cell phones recovered by the Commonwealth's investigation and the unique demonstrative seal at issue before trial, pursuant to and in conformance with the August 16, 2011 Discovery Order.
Second, the Court finds that it was the Defendant who elicited testimony about the cell phones and the "original seal" through cross examination of Officer Mamalis and Detective Carroll, not the Commonwealth. Thus the defense had knowledge of the cell phones and the "original seal," either through inspection, or because the Defendant shared his actual knowledge of the evidence with counsel. The Defendant may not
4 on one hand prompt evidence to be introduced at trial, and on the other claim the Commonwealth wrongfully withheld that evidence.
Finally, the Court finds that the post-trial discovery of the "missing seal" neither changed the defense strategy nor denied the Defendant's access to a fair trial. The defense had ample opportunity to develop and present alternative theories of the case - including control of the marijuana at issue by a third-party passenger, or access to the trailer by a third party passenger - irrespective of the "missing seal" evidence found post trial. The Defendant's failure to effectively develop his theories of the case at trial is not cured simply because a "missing seal" which would not support such theories was discovered. As such, the Commonwealth's late evidence disclosure regarding the "missing seal" does not entitle the Defendant to a second trial.
Conclusion
Because the Defendant was given opportunity to inspect evidence pursuant to the Court's August 16, 2011 Discovery Order, because the Defendant elicited testimony about certain evidence at issue, because certain evidence discovered post-trial is inculpatory and not exculpatory, and because the late inculpatory evidence did not prejudice the Defendant, the Defendant's Motion for Dismissal is denied. An order is enclosed.
Sincerely, Jonathan C. Thacher
Fairfax Circuit Court Judge
JCT/jlw
Enclosure
ORDER
On November 18, 2011, the Defendant, by Counsel, filed a Motion to Dismiss. The Court, after a full consideration of the matter, denied the motion for the reasons set forth in the letter opinion dated February 9, 2012.
Entered on February 10, 2012. _____________________
JUDGE JONATHAN C. THACHER