Where appellant did not show that the commonwealth suppressed information favorable to his defense that would otherwise have been unavailable, the circuit court correctly denied his motion for a mistrial.
Golden, a confidential informant for the police, made controlled purchases of cocaine from “Big D,” who was later identified as appellant Wright. Oakes was another informant. His job was to drive Golden to and from Wright’s house on Southland Drive, where the controlled cocaine purchases were made.
Golden made three controlled buys. Golden had a recording device for the first buy. The recording showed a man with facial hair selling cocaine to Golden. At Wright’s bench trial, the court viewed the recording. Golden identified Wright as the person who sold him cocaine.
For the next buy, Golden called Wright to set up the buy while police investigators recorded the call. Golden confirmed he had dialed Wright’s number and recognized Wright’s voice.
The controlled buy took place in Wright’s car, which was parked in front of his house. The recording did not show Wright but Golden identified him as the person who sold him cocaine.
The third buy was set up via text messages and calls. The transaction occurred in Wright’s car. Golden’s recording device showed Wright selling cocaine to Golden.
In the circuit court
Golden testified on cross-examination that he could not recall some 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 conceded that he was buying cocaine from another individual, Ja.B., on Southland Drive during the same time frame.
Wright moved to strike on the basis of insufficient evidence. Wright argued that Golden was unreliable and that two of the three recordings did not depict Wright.
“Wright also moved for a mistrial for an alleged Brady 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 and convicted Wright on all three charges of distributing a Schedule I or II controlled substance.
After the trial, Wright renewed his motion for a mistrial based on alleged Brady violation.
“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.”
“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. …
“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; and c) the accused must have been prejudiced.’ …
“It is well established that the Commonwealth does not violate Brady by failing to disclose information the ‘substance’ of which is already ‘known to the defense.’ …
“It is apparent from the record that Wright knew, prior to trial, that Golden had purchased narcotics from others on Southland Drive[.] …[H]e used that information during his cross-examination of Golden, who admitted that he had been buying drugs from Ja.B. on Southland Drive at the time of the instant offenses.
“Wright also alluded to the information while cross-examining Brummitt [a police investigator], asking him if Golden was working with other suspects on Southland Drive.
“Wright then used the evidence, including Golden’s admission that he had purchased drugs from another on Southland Drive, in arguing his hypothesis that someone else had sold Golden the cocaine. …
“Thus, notwithstanding his assertions to the contrary, Wright clearly was aware of information he claims the Commonwealth failed to disclose and he actually made use of it at trial. …
“With respect to Je.B. and D.L., we conclude that the record fails to show Wright could not have obtained their names before trial through the exercise of diligence. …
“[S]oon after trial, by identifying them at his post-trial hearing, Wright demonstrated he had the ability to discover the names of Je.B. and D.L. without the assistance of the Commonwealth.
“Consequently, because the record shows that Wright had the means to obtain (and, in fact, did obtain) the purportedly favorable information without the assistance of the Commonwealth, he has not established an entitlement to the relief he seeks.”
As to the prejudice prong, “we find that there was not a reasonable probability of a different result because Wright actually used similar information at trial to no effect. After considering Wright’s argument in the context of Golden’s admissions at trial, the trial court found it unavailing.”
“Wright asserts that Golden cannot be believed as a matter of law. Wright argues that Golden’s trial testimony as to each of the transactions was ‘deliberately vague and evasive and essentially deceptive.’ …
“Although the trial court found that Golden was ‘not the most cooperative witness,’ it nevertheless credited his testimony that Wright sold him cocaine on the three occasions in question.”
The trier of fact determines witness credibility. “Accordingly, we defer to the trial court’s credibility determination on appeal.”
Wright v. Commonwealth, Record No. 0566-21-3, May 10, 2022. CAV (Russell) from the Circuit Court of Henry County (Williams). Heath L. Sabin for appellant. Ken J. Baldassari for appellee. VLW 022-7-132, 12 pp. Unpublished opinion.