Opinion
Record No. 1202-91-3
January 26, 1993
FROM THE CIRCUIT COURT OF WISE COUNTY J. ROBERT STUMP, JUDGE
Lonnie L. Kern, for appellant.
Michael T. Judge, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Moon and Bray
Argued at Salem, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Ralph Edward Turner was convicted of one count of conspiracy to distribute cocaine and twelve counts of distribution of cocaine. On appeal, he contends: the trial judge erred in not striking a question premised upon evidence undisclosed in violation of the discovery order; the evidence was insufficient to sustain the twelve distribution of cocaine charges; and the trial court erred in granting Instruction No. 2, and in denying his Instructions G, H and J.
We reverse and remand the case because the jury was not instructed to disregard the question asked in violation of the discovery order. The other questions are addressed only because they may arise again on retrial.
The Commonwealth's evidence proved the following on direct:
In March of 1987, Ronnie Lewis Gaines met Ralph Edward Turner, the appellant, through a friend, Chester Lyle. Gaines called the appellant a short time later to arrange a tennis match. Gaines and the appellant went out socially, and in 1987, the appellant mentioned the subject of cocaine to Gaines.
The appellant first provided Gaines with cocaine in Wise County in 1987. After using cocaine the appellant had given him, Gaines eventually began selling cocaine. The appellant told Gaines that he could supply Gaines with cocaine. The arrangement between the appellant and Gaines was referred to as "fronting." The appellant would give Gaines the cocaine, Gaines would sell the cocaine and then pay appellant from the proceeds.
When Gaines needed more cocaine, he would call the appellant from his home in Wise County. The call was placed to a friend of the appellant's with whom appellant was staying. The appellant would deliver cocaine to Gaines a few days after receiving the phone call. Telephone records indicate that Gaines called the appellant at the telephone number of the appellant's friend weekly during the entire year of 1988. Gaines testified that during the latter part of 1987 through December 1988, the appellant delivered cocaine to Gaines during each month in Wise County.
I.
Appellant maintains that the Commonwealth, in violation of the discovery order, failed to disclose a statement allegedly given by him to the officer. The appellant was questioned on cross-examination by the Commonwealth's attorney about this statement in an effort to impeach his testimony. Appellant had filed a pretrial motion for discovery and an order was entered requiring the Commonwealth to reveal to the defendant any "statements made to any police officer." The order was a continuing order requiring updating even "during trial." The Commonwealth replied approximately a month before trial that appellant had admitted to Officer Crider, a Kentucky police officer, that certain telephone numbers in Kentucky belonged to the appellant's associates. On the morning of trial, a motion was heard to suppress those statements upon the ground that they were involuntarily obtained. The trial court denied the motion.
At trial, appellant took the stand in his own defense and denied that he had participated in any drug transactions, including those alleged with Gaines. He testified that his only association with Gaines was social, primarily to play tennis. On cross-examination, the Commonwealth's attorney asked appellant if he had discussed revealing his source with the Kentucky police officer who arrested him. The substance of this cross-examination is as follows:
Q. In fact Mr. Turner your source of cocaine is out of Lexington Kentucky is it not?
A. Can you repeat that question again sir?
Q. Your source of cocaine that you were supplying to Mr. Gaines was out of Lexington, Kentucky was it not?
A. I have no source of cocaine.
Q. In fact when Officer Crider talked to you all talked about getting your source of cocaine that you were getting kilos from.
This line appears in transcript at this point in the record and is initialled by the trial judge. The next thirty pages of the transcript contain counsel's argument. At several places in the transcript, the judge replied to counsel that his client had answered "No" when asked about bringing kilos from Lexington. Counsel said that his client did not answer the question. There was no reference to the court reporter's notes during argument. After the transcript was lodged with the clerk of the circuit court, but before the transcript was filed with the Court of Appeals, the trial judge added [see Rule 5A:8(d)] the line "NO ANSWER By defendant." Under the circumstances, we must conclude that the appellant did not answer the question, not that he answered "No" to the question.
At that point, appellant's counsel objected on the ground that it was a violation of the discovery order if the Commonwealth knew of any such statement and had not revealed it. The Commonwealth's attorney answered that he did not know about the statement until the morning of trial and after the pretrial hearing on the motion to exclude the telephone numbers. After the suppression hearing, he talked to Officer Crider and discovered that there had been a lengthy discussion about appellant cooperating with Kentucky authorities and revealing his source of cocaine.
The Commonwealth's attorney also contended that defense counsel knew the substance of the discussions with the Kentucky police officer. Defense counsel denied knowledge of the discussions. The record does not show that defense counsel knew about any statement concerning an admission of drug dealing or bringing kilos of cocaine from Lexington, Kentucky. Defense counsel told the trial judge that had he known that such a statement had been made, he would not have put his client on the stand and subjected him to such impeachment evidence. A lengthy argument out of the jury's presence ensued, with the appellant's counsel insisting that the court instruct the jury to disregard the Commonwealth's questions about Turner's source. In essence, the trial judge decided there was no discovery violation because the Commonwealth's attorney could not anticipate that the appellant would take the stand and deny dealing drugs.
On appeal, the Commonwealth first argues that the Kentucky police officer was not a police officer within the contemplation of the order because the Commonwealth's attorney had no control over him. Upon the facts of this case, we disagree. The order explicitly required the Commonwealth to reveal any statement by the appellant given to "any police officer." Significantly, the Commonwealth's attorney had already, in response to the same order, revealed to the defendant one statement concerning telephone numbers given to the same Kentucky Police Officer, Crider. Crider had testified at the suppression hearing that he was working with the Virginia police to arrest appellant. For these reasons, we hold that the Commonwealth may not on appeal successfully argue that it did not have to reveal the statement because it did not consider the Kentucky police officer to be covered by the order.
Thus, we will consider the explanation given by the Commonwealth to the trial court. The Commonwealth's attorney said that he did not reveal the statement because he had just learned of it on the day of trial and had no reason to believe that it would be relevant during the case because it was not a confession to the distribution and conspiracy in Virginia. A review of the record indicates that not only had appellant pleaded not guilty to the charge, but his counsel had told the jury in his opening statement that his evidence would be that the defendant had not conspired with Gaines and had not distributed any drugs and had "seen no drugs." After defense counsel's objection, the Commonwealth's attorney told the trial judge that he had talked to Officer Crider the morning before trial. The Commonwealth's attorney stated:
All that came up this morning and I even after that and I talked with him [Crider] off of the witness stand with Investigator Vanover there and basically I ask him well if he [appellant] takes the stand is there anything that I'm going to be able to impeach him with and he said well and that's when he went into this I talked to him about cooperating and he's expressed fear about cooperating of reprisals and he told me about his involvement in 1990 in transporting kilograms of cocaine back from Lexington, Kentucky and as his source. I said, well it's 1990, it's well beyond the indictment. I just don't think that I can get into that and I didn't.
The Commonwealth's cross-examination about supplying cocaine to Gaines belies the Commonwealth attorney's assertion made to the trial court that the information he received from Officer Crider did not apply to the time-frame of this case. His questions applied the information directly to this case. Even if the Commonwealth's attorney did not realize the importance of the information concerning the appellant's source before the trial began, he should have realized the importance, namely the impeachment value, before the appellant testified. The discovery order was a continuing order requiring the Commonwealth to reveal the evidence as soon as it was available. Once the Commonwealth's attorney heard the opening statement and before the appellant testified, the Commonwealth was on notice of appellant's probable testimony and knew, or should have known, the scope of what the cross-examination would be if appellant testified as his attorney had promised the jury. The Commonwealth's attorney was looking for impeachment evidence when he talked to Crider. He should have anticipated that he would use the alleged statement to impeach the appellant.
Rule 3A:11 provides in pertinent part:
(1) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph any relevant (i) written or recorded statements or confessions made by the accused, or copies thereof, or the substance of any oral statements or confessions made by the accused to any law enforcement officer, the existence of which is known to the attorney for the Commonwealth. . . .
(g) Continuing Duty to Disclose; Failure to Comply. — If, after disposition of a motion filed under the Rule, and before or during trial, counsel or a party discovers additional material previously requested or falling within the scope of an order previously entered, that is subject to discovery or inspection under this Rule, he shall promptly notify the other party or his counsel or the court of the existence of the additional material. If at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with this Rule or with an order issued pursuant to this Rule, the court shall order such party to permit the discovery or inspection of materials not previously disclosed, and may grant such other relief as it may deem appropriate.
Thus, the Commonwealth had knowledge of a statement by the appellant to a "police officer." It had a duty before the appellant testified to advise defense counsel of this statement. The Commonwealth's failure to reveal the statement was a discovery violation.
The appellant next contends that the trial judge erred in failing to strike the question concerning appellant's source, which was premised upon the discovery violation.
The Commonwealth argues the remedy for failure to disclose relevant information after being ordered to do so is discretionary. Davis v. Commonwealth, 230 Va. 201, 335 S.E.2d 375 (1985). We agree, but because the judge ruled there was no violation, he did not consider a remedy.
The failure to exercise discretion can be an abuse of discretion. We cannot hold as a matter of law that if the trial judge had found a violation, he would still have admitted the evidence. The mere asking of a question regardless of the answer may be so prejudicial as to deny a fair trial and require reversal if the trial judge fails to take appropriate action to alleviate the harm. See McLane v. Commonwealth, 202 Va. 197, 203-04, 116 S.E.2d 274, 278 (1960). The question concerning Turner's source, by itself, was very damaging to appellant's case. The jury should have been admonished by the trial court to disregard the question.
The Commonwealth also argues that the failure to instruct the jury to disregard the question was harmless error. Defense counsel stated that he would not have put his client on the stand had he known the Commonwealth had such impeachment evidence. Defense counsel asked the court to instruct the jury to disregard the question. The court refused. Admission of relevant and material evidence at trial that was not previously disclosed as required by a discovery order is reversible error upon a showing of prejudice. See Davis, 230 Va. at 204, 335 S.E.2d at 377-78; Stotler v. Commonwealth, 2 Va. App. 481, 484, 346 S.E.2d 39, 40 (1986); Conway v. Commonwealth, 11 Va. App. 103, 397 S.E.2d 263 (1990). Here, appellant received sentences of 400 years and fines of $460,000. The Commonwealth's attorney implied by his questions that the appellant not only had made incriminating admissions about the offense for which he was on trial but also had admitted heavy involvement in the drug trade beyond his sales to Gaines. We find nothing else in the record to prove additional drug dealing. We find that the question asked by the Commonwealth concerning appellant's source was prejudicial and, thus, the error in failing to instruct the jury to disregard the questions was not harmless. Thus, we hold the failure of the trial court to strike the questions by the Commonwealth constitutes reversible error.
II.
The appellant also maintains that the evidence was insufficient to sustain the convictions because no foundation was laid for Gaines to testify that the drugs he received from appellant were cocaine. When Gaines first testified that he obtained cocaine from appellant, appellant's counsel objected to Gaines being allowed to testify that the substance was cocaine. The trial judge allowed Gaines to call the matter cocaine, subject to the Commonwealth proving that the substance was indeed cocaine.
Gaines testified that he purchased and used the substance he thought to be cocaine from appellant for more than one year, that it was a white powdery substance, that it made him high, that he snorted the substance up his nostril with a straw, and that he became addicted to it. Gaines also testified that the only cocaine he ever used was that he had purchased from Turner.
Jeff Jones, a friend of Gaines, testified that he first obtained cocaine from Gaines in 1987. Jones likewise testified that the white powdery substance purchased from Gaines made him high. Based on Jones' testimony, the jury could have concluded that the only substance Jones had ever used was that white powdery substance he obtained through Gaines from Turner.
Appellant's argument is that these two witnesses were not shown to have any familiarity with cocaine apart from the substance Turner had told them was cocaine. Thus, according to appellant's theory, Gaines and Jones do not fit into that category of persons allowed to express the opinion that something is cocaine by virtue of their prior experience, as required by Hill v. Commonwealth, 8 Va. App. 60, 379 S.E.2d 134 (1989). Hill states that the nature of the illegal substance may be proven by circumstantial evidence such as "evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug." 8 Va. App. at 63, 379 S.E.2d at 136 (citations omitted) (emphasis added). Appellant contends that, based on the record, the only familiarity Gaines and Jones had was with the unidentified substances provided by Turner that he called cocaine.
We agree the record may be so read and, on remand, Gaines and Jones should not be allowed to express their opinion that the substance provided by Turner was cocaine, based solely on their experience with the substance purchased from Turner. An expert familiar with cocaine's characteristics may, in response to a hypothetical question, opine the substance was cocaine and leave it for the jury to decide if the substance in question was cocaine.
Appellant contends that the convictions for distribution of cocaine should be dismissed because, without testimony establishing that the substance was cocaine, the evidence was insufficient to prove that cocaine was actually distributed. On appeal, we are considering an evidentiary ruling, not a ruling on the sufficiency of the evidence. The trial judge ultimately ruled that the testimony describing the drug as cocaine was admissible. Appellant abandoned this evidentiary ruling as a question on appeal and, thus, it is deemed waived. Rule 5A:20(c). Our only purpose in discussing the issue is that the case will be remanded. Hill requires that there be evidence of the witness's familiarity with the illicit drug before it can be described as such by the witness.
The appellant has waived appeal of the issue of whether Gaines was qualified to testify as to the identity of the substance as cocaine. The appellant failed to raise the issue in his opening brief, and this Court cannot address this issue. Rules 5:27(c); 5A:20(c).
The appellant has waived appellate review of the sufficiency of the evidence to prove conspiracy to distribute cocaine, because he failed to brief the issue. O'Dell v. Commonwealth, 234 Va. 672, 679, 364 S.E.2d 491, 495, cert. denied, 488 U.S. 871 (1988). Rules 5:27(e) and 5A:20(e). Moreover, a mere failure, as alleged by the appellant, to establish the substance to be cocaine does not prevent the trial court from finding a conspiracy.
III
The trial judge did not err in granting Instruction No. 2. Instruction No. 2 stated the appropriate law regarding the standard of reasonable doubt as to the twelve counts of distribution. Instruction No. 2 also stated that there would be twelve separate verdict forms, with the respective month and year, to assist the jury in rendering its verdict. The trial court emphasized at the end of the closing arguments that the jury had thirteen verdicts (one for conspiracy, twelve for distribution) to consider. The jury was polled and each juror responded that the total of thirteen guilty verdicts was his or her verdict. Based on this record, we find no error in granting Instruction No. 2.
The trial judge did not err in denying cautionary Instructions G, H and J, because the accomplice testimony was corroborated and, thus, there was no need for a cautionary instruction.Dillard v. Commonwealth, 216 Va. 820, 224 S.E.2d 137 (1976).
Here, telephone calls from Gaines to the appellant, at a residence where the appellant testified he stayed, corroborated Gaines' testimony about calling the appellant for cocaine. Jones testified that Gaines told him that a person named Eddie from Kentucky supplied him with cocaine. Jones also testified that he saw a red Camaro outside of Gaines' house when Jones bought cocaine from Gaines. The appellant testified that he drove a red Camaro. This evidence corroborated Gaines' accomplice liability.
The trial court did not err in denying the instructions on accomplice credibility. There was corroborating evidence to "warrant the jury in crediting the truth of the accomplice's testimony . . . even though [this] evidence [may] fall . . . short of constituting 'independent evidence which supports the alleged ultimate fact' that the accused committed the offense charged." Id. at 823-24, 224 S.E.2d at 140.
The judgments appealed from are reversed and remanded for a new trial.
Reversed and remanded.