COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and Huff
Argued at Salem, Virginia
BRIAN HEATH DOSS
Record No. 1136-10-3
JUDGE GLEN A. HUFF
JANUARY 10, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
James C. Martin (Martin & Martin Law Firm, on briefs), for
John W. Blanton, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Brian Heath Doss (“appellant”) appeals his conviction of one count of distribution of a
Schedule II controlled substance, first offense, in violation of Code § 18.2-248, and one count of
distribution of a Schedule II controlled substance, a second or subsequent offense, in violation of
Code § 18.2-248. Following a jury trial in the Circuit Court of Pittsylvania County (“trial
court”), appellant was sentenced to twenty-five years imprisonment on each count as well as a
fine of $100,000 on each count, which fine the trial court suspended.
On appeal, appellant contends that the trial court erred in denying 1) appellant’s motion
to sever when appellant did not consent to having the charges tried together and the
circumstances did not comply with the requirements of Rule 3A:10, 2) appellant’s motion in
limine in allowing Michael Cox (“Cox”) to testify when he had no knowledge of the alleged drug
deals on November 1 and November 4, 2008, and 3) a new trial where his rights were violated
when the Commonwealth’s attorney and authorities failed to provide information concerning a
failed urine test by informant Mark Bell (“Bell”) along with other impeachment and exculpatory
material. For the following reasons, we affirm the appellant’s convictions.
On appeal, “‘we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,
the evidence is as follows.
A. The Informant
On October 17, 2008, Investigator William Chaney (“Chaney”), with the Pittsylvania
County Sheriff’s Office, and other officers with the regional Drug Task Force executed a search
warrant at Bell’s residence. They found cocaine and cash at the residence, and arrested Bell on four
charges of possession of cocaine with the intent to distribute. Shortly after his arrest, Bell offered to
cooperate with Pittsylvania County police investigations of drug distribution in an effort to avoid
both federal charges and charges in other localities within the Commonwealth.
Bell informed the investigators that appellant had been his primary source of cocaine for
several months. Bell stated that appellant would “front” him one ounce of cocaine at a time, which
Bell then would sell and pay appellant $1,100 for the “fronted” cocaine. Bell also informed the
investigators that he occasionally had purchased drugs from another dealer named Joseph Tweedy
(“Tweedy”). 1 Bell claimed that appellant was aware of the purchases from Tweedy and that
appellant had told Bell that he was “crossing [appellant’s] toes” and Bell should not buy drugs from
Tweedy is referred to throughout the record as Joe, Joseph, or Jody Tweedy. It is not
apparent from the record which name is the correct name since he never testified at trial.
somebody else. When appellant spoke with Bell, Bell owed appellant approximately $3,200 from
prior dealings with appellant.
Bell agreed to make a controlled purchase from appellant, so Chaney provided state and
county money for Bell to pay appellant the sums that Bell owed him. Under Chaney’s supervision,
Bell made several controlled buys from Tweedy and appellant in October outside of Pittsylvania
County. As usual, appellant “fronted” Bell the cocaine, and required Bell to repay him before
appellant would supply Bell with more cocaine.
B. November 1, 2008 Controlled Buy
On November 1, 2008, Chaney, Sergeant Ford, with the Pittsylvania County Sheriff’s
Office, and Special Agent Alan Ruis (“Ruis”), with the Virginia State Police, were involved with a
controlled buy between Bell and appellant. The officers met with Bell, and provided him with a
digital audio recorder and a wire. The officers also searched Bell and his truck prior to the
controlled buy to ensure that he had no other drugs or money in his possession. In addition, Chaney
provided Bell with $1,100 so that Bell could repay appellant for a prior transaction.
On that day, Bell was unable to reach appellant by telephone, so he drove to appellant’s
house in an attempt to find appellant. The officers followed Bell as he drove to appellant’s
residence, and waited nearby. When Bell arrived at appellant’s house, Bell and appellant went
outside to a two-car garage behind the house where appellant stored the cocaine in a black trash bag
inside a five-gallon bucket. Appellant retrieved digital scales from the house, returned to the
garage, and weighed out an ounce of cocaine for Bell. Bell pocketed the cocaine, and left
appellant’s property after he had given appellant the $1,100.
After Bell left appellant’s home, Ruis followed Bell as he drove directly to the agreed upon
meeting place, and Ruis never lost sight of him. Once they arrived, Ruis immediately confiscated
the cocaine, searched Bell and his vehicle, and found nothing. Ruis promptly turned the cocaine
over to Chaney when he arrived at the meeting place.
C. November 4, 2008 Controlled Buy
On November 4, 2008, Corporal Jacob Sparks (“Sparks”), along with three other officers
from the Pittsylvania County Sheriff’s Department, met with Bell at a predetermined location in
preparation for another controlled buy between Bell and appellant. The officers searched Bell and
his vehicle for any contraband or cash, and found nothing. Bell made a cellular telephone call to
appellant, which was recorded, and learned that appellant was at his mother’s house in Alta Vista,
Virginia. Sparks gave Bell $1,100 to pay appellant for the cocaine he had obtained from appellant
on November 1, 2008. Sparks also wired Bell with video recording equipment as well as audio
recording equipment that was capable of broadcasting.
Bell then drove to appellant’s mother’s house in Alta Vista with the officers following him,
and gave appellant the $1,100 in payment for the November 1, 2008 cocaine transaction. Bell
subsequently rode with appellant to a local bank where appellant made a cash deposit. After
returning to appellant’s mother’s house, appellant told Bell he would call Bell later that day because
he could not give Bell any cocaine at that time since he was at his mother’s house. Bell left
appellant’s mother’s house, and went to meet the officers at the designated meeting place. After
waiting for some time at the designated meeting place for appellant to call Bell, the officers and Bell
relocated to the original location where they had met earlier in the day.
As Bell was driving to the original location, appellant called Bell on his cellular telephone,
and told Bell he was ready to meet with Bell at appellant’s house in Pittsylvania County. After
being outfitted again with the audio and video recording equipment, Bell drove to appellant’s house
and went with appellant to the same two-car garage behind appellant’s house. Appellant went to the
same five-gallon bucket as before, and weighed out an ounce of cocaine for Bell. Appellant then
ripped off a piece of the black plastic trash bag containing the cocaine, wrapped Bell’s cocaine in
the piece of plastic bag, and handed Bell the cocaine. Bell placed the cocaine in his pocket, left
appellant’s house, met with Sparks, and handed Sparks the cocaine. The officers searched Bell and
his vehicle, and found nothing.
D. The Arrest and Trial
After the two controlled buys, Bell moved to Roanoke, Virginia, and worked construction at
William Fleming High School. On January 21, 2009, Ruis paid for Bell’s stay in a hotel in
Roanoke. As Bell was leaving the high school on January 22, 2009, he noticed a suspicious van in
which he thought he saw appellant. Bell immediately telephoned Ruis, and Ruis stated Bell
sounded upset and afraid that something was going to happen to him. Bell was moved to another
hotel as a result of the telephone call, and appellant was arrested on a warrant based on the
November 4, 2008 cocaine sale.
Appellant was indicted on February 17, 2009, in the trial court for the sale of cocaine on
November 1, 2008, and the sale of cocaine on November 4, 2008. Both were charged as a second
or subsequent offense. Prior to trial, appellant filed a motion to sever the charges for separate trials,
a motion to strike the indictment surplusage, and a motion in limine requesting the trial court enjoin
the Commonwealth from using Cox’s testimony at trial. The trial court granted the motion to strike
as surplusage language “a second or subsequent offense” from the November 1, 2008 indictment,
but denied the motion to strike the language from the November 4, 2008 indictment.
The trial court also denied the motion to sever on the grounds that the evidence of the
November 1st transaction was necessary to prove the offense of the November 4th transaction as a
second or subsequent offense. Lastly, the trial court denied the motion in limine on the grounds that
Cox’s testimony was relevant and that the relevance was not outweighed by the prejudicial effect.
At the hearing, the Commonwealth proffered the anticipated testimony of Cox and Bell.
At the jury trial on October 15-16, 2009, Bell testified regarding his purchase of cocaine
from Tweedy. Bell testified that he was the middle man, and had purchased the cocaine from
Tweedy for appellant. Bell stated “I went to . . . Tweedy and I got the [cocaine]. . . . And I give
[sic] the [cocaine] to [appellant]. . . . It was [appellant’s] money that got the [cocaine] to begin
E. Michael Cox’s Testimony
Cox also testified at trial, over appellant’s continuing objection, that he supplied appellant
with cocaine from June 2008 until appellant’s arrest in January 2009. Cox also stated that he had
previously visited appellant at his home and that appellant mainly stored his cocaine in the two-car
garage in black plastic storage bags. Cox stated that he knew that appellant and Bell hung out and
that appellant and Bell had visited Cox at his house where appellant told Cox that Bell was one of
his best cocaine distributors. Cox testified that a couple of weeks later, appellant complained to Cox
that Bell had “messed up” and owed appellant approximately $3,200 and that Bell was purchasing
cocaine from Tweedy.
Cox then testified that appellant called him a week before appellant’s arrest, and asked Cox
if he knew if Bell was working for the police. Cox stated that he did not know, so appellant asked
Cox if he would call and talk to Bell. Cox was unable to get in touch with Bell, so he called
appellant back and informed appellant of that fact. On the day prior to appellant’s arrest, appellant
called Cox again, told Cox that Bell was working for the police, and that appellant was in Roanoke
tracking down Bell. Appellant called Cox later on the same day, and told Cox that he found Bell
who immediately took off running while on a cellular telephone.
At trial, the Commonwealth introduced testimonial evidence and certificates of analysis
from the Department of Forensic Science Laboratory in Roanoke, Virginia, that the samples from
the November 1, 2008 incident and November 4, 2008 incident were cocaine. The Commonwealth
also introduced and played for the jury the audio and visual recordings of Bell’s November 1 and 4,
2008 transactions with appellant.
F. Facts Pertaining to the Brady Issue
Following the jury trial, appellant was convicted of one count of the sale of cocaine, and of
one count of the sale of cocaine, a second or subsequent offense. After the trial, but prior to the
sentencing hearing, appellant’s counsel received copies of several police reports relating to Bell’s
arrest and referencing a drug test that Bell took prior to the Pittsylvania County Sheriff’s
Department utilizing him as a confidential informant. Appellant’s counsel received the documents
from federal prosecutors who had received them from Ruis pursuant to a separate federal
investigation of appellant.
The first report indicates that the search warrant was obtained and executed on Bell’s
residence on October 17, 2008, cocaine and cash were found at the location, and Bell was arrested.
The second report notes that Ruis met with Bell on October 21, 2008, regarding Bell becoming a
confidential informant and that Bell had submitted to a drug test by Sparks due to his admission on
October 17, 2008 that he had recently used cocaine. The report further notes that, “Sparks read the
test as being positive for cocaine so B[ell] was not sign [sic] up as a [confidential informant] at this
The second report also contained the following transcription of Ruis’s interview of Bell on
October 21, 2008:
This member interviewed B[ell] on where the cocaine he had on
10-17-08 at the search of his home had come from. B[ell] advised
that he and [appellant] were discussing obtaining so [sic] cocaine
from someone “to keep things rolling”. One of [appellant’s]
associates was out of town and was holding some of [appellant’s]
cocaine for [appellant]. B[ell] advised that he told [appellant] that
he knew a guy named [Tweedy] in Rustburg. B[ell] proceeded to
call T[weedy] at [appellant’s] direction and order 4 1/2 ounces of
powder cocaine for 3800.00 dollars. B[ell] then went to Rustburg
and purchased the 4 1/2 ounces of cocaine from T[weedy] with
3800.00 dollars provided by [appellant]. B[ell] then returned to
[appellant] and gave him the 4 1/2 ounces of cocaine at which time
[appellant] fronted B[ell] 1 ounce of powder cocaine to sell. B[ell]
does not remember the exact date but believes that this purchase
took place in the week of Oct. 5-11[,] 2008.
The report further notes that Bell claimed that he quickly sold the one ounce of cocaine, so
he returned to appellant for two more ounces of cocaine, which appellant fronted to him. The report
indicates that when Bell was arrested, he had one ounce of cocaine remaining from the three ounces
as well as some cash to repay appellant for the fronted cocaine.
On January 6, 2010, appellant filed an amended motion to set aside the jury verdict and
award a new trial. Appellant argued in the motion that 1) the trial court erred in denying Doss’s
pre-trial motion to strike the surplusage language of “a second or subsequent offense” from the
November 4, 2008 indictment; 2) the trial court erred in admitting Michael Cox’s testimony; and
3) the Commonwealth withheld evidence that was both material and exculpatory in violation of
Brady v. Maryland, 373 U.S. 83 (1963). The trial court heard arguments and testimony on January
12, 2010, and March 20, 2010, regarding the amended motion to set aside, and denied the motion.
At the hearing, the Commonwealth admitted that the reports had not been given to appellant
prior to trial. Ruis also testified at the hearing regarding the drug test. Ruis stated that at the time he
wrote the note, he had been informed by Sparks that Bell could not be used as a confidential
informant because he had tested positive for cocaine. Ruis then explained, however, that he was
told either later in the evening on October 21 or on October 22, 2008, that Sparks had misread the
drug test and that Bell actually had tested negative for cocaine. Ruis also admitted that he never
turned over the documents to the Commonwealth’s attorney.
This appeal followed.
On appeal, appellant contends that the trial court erred in denying appellant’s 1) motion
to sever, 2) motion in limine to disallow the testimony of Cox, and 3) post-trial motions to set
aside the jury verdict on the ground that exculpatory evidence had been withheld from appellant.
A. Motion to Sever
Appellant first contends that the trial court erred in denying appellant’s motion to sever
when appellant did not consent to having the charges tried together, and the circumstances did
not comply with the requirements of Rule 3A:10. Specifically, appellant argues that 1) justice
required the trials to be separated because evidence of other crimes or other bad acts is
inadmissible in the trial of the crime charged, 2) the two offenses were not the “same act or
transaction” since they occurred on different days, were not so “connected” that they should be
tried together, and were not part of a “common scheme or plan” because they were two separate
sales of a controlled substance on different occasions, and 3) the evidence that appellant had
previously sold drugs was not relevant to the charge, and the prejudicial effect far outweighed
any probative value.
The Commonwealth asserts, however, that it was proper to try the charges together
because the first charge was connected to the second charge. The Commonwealth specifically
argues that the charges were connected because the first charged offense was a “gradation” to the
second or subsequent charged offense, which pursuant to the Supreme Court’s holding in
Commonwealth v. Smith, 263 Va. 13, 557 S.E.2d 223 (2002), satisfied the “connection”
requirement under Rule 3A:10(c).
“‘Whether different offenses should be tried separately is a matter that rests within the
sound discretion of a trial court,’ and ‘a trial court’s ruling on the matter will not be reversed
absent a showing that the court abused its discretion.’” Id. at 16, 557 S.E.2d at 225 (quoting
Cheng v. Commonwealth, 240 Va. 26, 33-34, 393 S.E.2d 599, 603 (1990)). Rule 3A:10(c)
provides in pertinent part that “[t]he court may direct that an accused be tried at one time for all
offenses then pending against him, if justice does not require separate trials and (i) the offenses
meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth’s attorney
consent thereto.” Since appellant did not consent to the charges being tried together, the trial
court could not try them together unless the offenses met the requirements of Rule 3A:6(b) and
justice did not require separate trials.
“Under Rule 3A:6(b), two or more offenses may be joined in a single indictment ‘if the
offenses are [1.] based on the same act or transaction, or [2.] on two or more acts or transactions
that are [a.] connected or [b.] constitute parts of a common scheme or plan.’” Scott v.
Commonwealth, 274 Va. 636, 644, 651 S.E.2d 630, 634 (2007) (quoting Rule 3A:6(b)). Nothing
in the record suggests that the two offenses were based on the same act or transaction. The two
drug transactions occurred on separate dates, and did not constitute the same act or transaction.
Two offenses, however, can be tried together if they are connected or constitute part of a
common scheme or plan.
A “common scheme or plan” exists when the “relationship among
the offenses . . . is dependant upon the existence of a plan that ties
the offenses together and demonstrates that the objective of each
offense was to contribute to the achievement of a goal not
attainable by the commission of any of the individual offenses.”
Yellardy v. Commonwealth, 38 Va. App. 19, 25, 561 S.E.2d 739, 742 (2002) (quoting Godwin v.
Commonwealth, 6 Va. App. 118, 122, 367 S.E.2d 520, 522 (1988)).
“To meet the ‘connected’ test, the crimes should be ‘so intimately connected and blended
with the main facts adduced in evidence, that they cannot be departed from with propriety.’”
Spence v. Commonwealth, 12 Va. App. 1040, 1044, 407 S.E.2d 916, 918 (1991) (quoting
Kirkpatrick v. Commonwealth, 211 Va. 269, 273, 176 S.E.2d 802, 806 (1970)). “A reviewing
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court must look to whether the transactions were ‘closely connected in time, place, and means of
commission, all of which supports the use of a single trial.’” Yellardy, 38 Va. App. at 24, 561
S.E.2d at 742 (quoting Satcher v. Commonwealth, 244 Va. 220, 229, 421 S.E.2d 821, 827
In Smith, the Supreme Court held that the trial court did not abuse its discretion when it
refused to grant Smith’s motion for separate trials for indictments on four murders on the basis
that the offenses were connected. 263 Va. at 16-18, 557 S.E.2d at 225-26. The Commonwealth
asserted in Smith that there were “separate species” of capital murder in Virginia that were
joined by “gradation” – i.e. “an aggravating circumstance, which is often a gradation or nexus
crime, [and] is required to elevate the offense from a standard, premeditated first-degree murder
to capital murder.” Id. at 18, 557 S.E.2d at 226. Based on this, the Supreme Court held “[w]e
are of [the] opinion that, in this context, ‘gradation’ equates with ‘connection’ and, hence, that
Code § 18.2-31(8) supplies the connection to satisfy the requirement for joinder specified by
Rule 3A:10(c).” Id.
Similarly, this Court finds that the evidence in this case shows that the two drug offenses
arose out of “two or more acts or transactions that are connected,” Scott, 274 Va. at 644, 651
S.E.2d at 634, based on “gradation,” Smith, 263 Va. at 18, 557 S.E.2d at 226, and thus holds that
the trial court did not abuse its discretion in denying the motion to sever the cases. Code
§ 18.2-248 provided, in pertinent part, at the time of appellant’s offense that, “[u]pon a second or
subsequent conviction of such a violation, any such person may, in the discretion of the court or
jury imposing the sentence, be sentenced to imprisonment for life or for any period not less than
five years and be fined not more than $500,000.” 2 At that time, the “enhanced punishment may
Appellant also asserts on brief that the amendment to Code § 18.2-248(C), effective
July 1, 2009, that the prior conviction supporting a second offense conviction under Code
§ 18.2-248(C) must have “occurred before the date of the offense alleged in the warrant,
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be applied where there are multiple convictions for separate offenses [under Code § 18.2-248] in
a simultaneous prosecution.” Mason v. Commonwealth, 16 Va. App. 260, 262-63, 430 S.E.2d
543, 544 (1993).
In this instance, an “aggravating circumstance” was required to elevate an offense under
Code § 18.2-248 from an initial offense to a second or subsequent conviction. Therefore, similar
to the aggravating circumstances in Smith, we hold that the gradation under Code § 18.2-248
satisfied the connection requirement for joinder under Rule 3A:10(c). A first offense sale of
cocaine occurred at some point prior to the second or subsequent offense sale of cocaine, thus
connecting the two offenses pursuant to the statute as it existed at the time of the offense.
Lastly, justice does not require that the two drug transactions be tried separately.
Although appellant correctly notes the general rule that “[j]ustice requires separate trials where
the evidence of one of the crimes is not admissible in the trial of the other,” Godwin, 6 Va. App.
at 123, 367 S.E.2d at 522, justice did not require separate trials in this case where there were
multiple offenses of drug distribution under Code § 18.2-248. As the trial court held, evidence
of the November 1, 2008 transaction was necessary to prove the November 4, 2008 transaction
was a second or subsequent offense. In addition, appellant was not unduly prejudiced by
allowing the Commonwealth to join two or more counts or charges under Code § 18.2-248, as
evidence of one offense was necessary to prove a second or subsequent offense. Accordingly,
indictment, or information,” was a procedural amendment, and thus in effect and applicable on
the date of this trial such that the motion to sever should have been granted on this ground.
Appellant, however, did not include this in his assignments of error in his petition for
appeal. Pursuant to Rule 5A:12(c), “[o]nly assignments of error assigned in the petition for
appeal will be noticed by this Court.” Therefore, we do not consider this argument, and we
apply the version of the statute applied in the trial court. Cf. Md. Ctr. Hosps. v. Sharpless, 229
Va. 496, 498, 331 S.E.2d 405, 406 (1985) (holding that jury instructions given without objection
became the law of the case and governed resolution of the proceedings even on appeal).
Although appellant objected at trial, he did not properly place the issue before this Court on
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the trial court did not abuse its discretion by refusing to sever the offenses because the two
offenses met the requirements of Rule 3A:10(c) and Rule 3A:6(b), and justice did not require
B. Motion in Limine: Cox’s Testimony
Appellant also asserts that the trial court erred in denying appellant’s motion in limine in
allowing Cox to testify when he had no knowledge of the alleged drug deals on November 1 and
November 4, 2008.
“‘Decisions regarding the admissibility of evidence lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Swanson v.
Commonwealth, 56 Va. App. 147, 152, 692 S.E.2d 256, 258 (2010) (quoting Michels v.
Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006)). “‘Only when reasonable
jurists could not differ can we say an abuse of discretion has occurred.’” Id. (quoting Thomas v.
Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743, aff’d on reh’g en banc, 45 Va. App.
811, 613 S.E.2d 870 (2005)). In addition, “[t]he responsibility for balancing the competing
considerations of probative value and prejudice rests in the sound discretion of the trial court.
The exercise of that discretion will not be disturbed on appeal in the absence of a clear abuse.”
Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616 (1990) (citing Coe v.
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)).
“Evidence that shows or tends to show a defendant has committed
a prior crime generally is inadmissible to prove the crime charged.
Such evidence implicating an accused in other crimes unrelated to
the charged offense is inadmissible because it may confuse the
issues being tried and cause undue prejudice to the defendant.”
McGowan v. Commonwealth, 274 Va. 689, 694, 652 S.E.2d 103, 105 (2007) (quoting Guill v.
Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998)).
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The exceptions to the general rule, however, are well established. “In order for evidence
that the accused has committed other crimes to be admissible, it need only be relevant to prove a
material fact or issue, and its relevance must outweigh the prejudice inherent in proving that an
accused has committed other crimes.” Wilson v. Commonwealth, 16 Va. App. 213, 220, 429
S.E.2d 229, 234 (1993) (citing Spencer, 240 Va. at 89, 393 S.E.2d at 616).
Evidence of other offenses is admitted if it shows the conduct and
feeling of the accused toward his victim, if it establishes their prior
relations, or if it tends to prove any relevant element of the offense
charged. Such evidence is permissible in cases where the motive,
intent or knowledge of the accused is involved, or where the
evidence is connected with or leads up to the offense for which the
accused is on trial. Also, testimony of other crimes is admissible
where the other crimes constitute a part of the general scheme of
which the crime charged is a part. Frequently it is impossible to
give a connected statement showing the crime charged without
incidental reference to such contemporaneous and similar crimes
and where there is only such incidental disclosure of other
Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. “Evidence of prior drug-related conduct is
irrelevant and inadmissible and does not fall within one of the Kirkpatrick exceptions where
there has been no showing of an intimate relation or connection between the prior conduct and an
element of the crime charged.” Wilson, 16 Va. App. at 222, 429 S.E.2d at 234-35 (citing
Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805).
In the instant case, Cox’s testimony was probative of appellant’s relationship with Bell
and the fact that appellant had been selling cocaine to Bell. Cox testified that appellant had
referred to Bell as his best cocaine distributor, complained that Bell owed him approximately
$3,200, and that appellant was angry when Bell began buying cocaine from Tweedy, another
cocaine dealer, while still owing appellant money. In addition, Cox confirmed Bell’s testimony
that appellant stored his cocaine in trash bags in his two-car garage. Cox also confirmed that
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appellant was suspicious of Bell, and had in fact tracked Bell down in Roanoke prior to
While Cox’s testimony also implicated appellant in other uncharged drug transactions, it
was highly relevant to the charges at issue in this case in that it confirmed Bell’s relationship
with appellant and appellant’s participation in the cocaine trade with Bell. Accordingly, the
probative value of Cox’s testimony outweighed the incidental prejudice inherent in the evidence
of the prior “bad acts.” Thus, the trial court did not abuse its discretion by allowing Cox to
testify, and denying appellant’s motion in limine.
C. Brady Violation
Lastly, appellant argues that the trial court erred in denying appellant a new trial where
his rights were violated when the Commonwealth’s attorney and authorities failed to provide
information concerning a failed urine test by informant Bell along with other impeachment and
exculpatory material. 3 Appellant asserts that the evidence was material because he could have
utilized it to impeach Bell on the basis that the failed urine test showed Bell was an unreliable
Appellant’s language “along with other impeachment and exculpatory material” stated
in appellant’s opening brief plus his supporting arguments for the referenced language, as well as
his assertion that he could have utilized the withheld information to impeach Ruis and the police
investigation were not part of appellant’s petition for appeal. Appellant’s granted assignment of
error only included the nondisclosure of the failed drug test with supporting arguments based
only on the failure to disclose the information regarding Bell’s drug usage and the “failed” urine
test, which appellant argued could have been utilized to further impeach Bell. “[T]he defendant
failed to raise this issue in his petition for appeal. . . . Thus, no appeal was granted on this issue,
and Rule 5A:12(c) prevents us from considering it.” Gregory v. Commonwealth, 46 Va. App.
683, 694, 621 S.E.2d 162, 168 (2005). In addition, this Court will not consider arguments raised
on brief that were not raised in the petition for appeal. Cruz v. Commonwealth, 12 Va. App.
661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991) (“We do not consider this argument, however,
since it was not raised in the petition for appeal and no appeal was granted by this Court on that
issue.” (citing Rule 5A:12(c))).
Appellant also asserts that he could have utilized the evidence to impeach Bell in that it
showed “Bell used cocaine.” Appellant, however, never raised this argument before the trial
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In response, the Commonwealth does not dispute that the evidence inadvertently was
suppressed by the Commonwealth, and accepts on brief that the second prong of a “true Brady
violation” was proven. The Commonwealth does, however, assert that appellant’s arguments
based on the urine drug test are unavailing.
“‘We review the trial court’s findings of historical fact only for “clear error,” but we
review de novo the trial court’s application of defined legal standards to the particular facts of a
case [. . .] .’” Blue v. Commonwealth, 49 Va. App. 704, 710, 644 S.E.2d 385, 388 (2007)
(quoting Quinn v. Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470, 475-76 (1997)). “‘In
making a Brady challenge, [a] defendant cannot simply allege the presence of favorable material
and win reversal of his conviction. Rather, [he] must prove the favorable character of evidence
he claims has been improperly suppressed. Speculative allegations are not adequate.’” Coley v.
Commonwealth, 55 Va. App. 624, 630, 688 S.E.2d 288, 291 (2010) (quoting Currie v.
Commonwealth, 30 Va. App. 58, 67, 515 S.E.2d 335, 340 (1999)).
“[T]he suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material to either guilt or punishment, irrespective of
the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. “Brady obligations
extend not only to exculpatory evidence, but also to impeachment evidence, and . . . a Brady
violation exists even when the government fails to divulge evidence that is ‘known only to police
investigators and not to the prosecutor.’” Coley, 55 Va. App. at 630, 688 S.E.2d at 292 (internal
citations omitted) (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)).
court, and thus we cannot consider it on appeal. Rule 5A:18. While appellant asks this Court to
invoke the “ends of justice” exception to Rule 5A:18 to reach the merits of this argument, we
may not do so as appellant has not demonstrated “‘that he or she was convicted for conduct that
was not a criminal offense’” or that “‘the record . . . affirmatively prove[s] that an element of the
offense did not occur.’” Brittle v. Commonwealth, 54 Va. App. 505, 514, 680 S.E.2d 335, 340
(2009) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221-22, 487 S.E.2d 269, 273
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“‘There are three components of a true Brady violation: The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.’” Id. at 631, 688 S.E.2d at 292 (quoting Strickler v. Greene, 527 U.S. 263,
281-82 (1999)). “[A] constitutional error occurs, and the conviction must be reversed, only if the
evidence is material in the sense that its suppression undermines confidence in the outcome of
the trial.” United States v. Bagley, 473 U.S. 667, 678 (1985).
“Evidence is material ‘if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.’” Coley, 55
Va. App. at 631, 688 S.E.2d at 292 (quoting Strickler, 527 U.S. at 280). “In other words, a
petitioner must show that when the case is evaluated in the context of the entire record, including
the omitted evidence, a jury would have entertained a reasonable doubt regarding petitioner’s
guilt.” Soering v. Deeds, 255 Va. 457, 464, 499 S.E.2d 514, 517 (1998). “However, it is not
necessary to demonstrate ‘by a preponderance that disclosure of the suppressed evidence would
have resulted ultimately in the defendant’s acquittal.’” Coley, 55 Va. App. at 631, 688 S.E.2d at
292 (quoting Kyles, 514 U.S. at 434).
Although the Commonwealth failed to disclose the evidence to appellant, this
nondisclosure was not material. The after-discovered evidence shows that Bell submitted to a
drug test on October 21, 2008, which Sparks initially misread as being positive. Someone in the
police department discovered the mistaken reading either the same day or the next day, and only
then did the police department began utilizing Bell as a confidential informant. This false
reading would have had minimal, if any, bearing on Bell’s reliability.
At trial, Bell admitted he was a cocaine dealer under investigation by several different
law enforcement agencies, he was working with the police in the hopes of avoiding federal
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charges and charges in other localities, and the police had put him up in a hotel. On
cross-examination, Bell agreed that he started working with the police because it was common
sense, and he wanted to help himself. Bell also agreed on cross-examination that he had prior
drug convictions and that he was buying and selling cocaine throughout Campbell County and
Pittsylvania County. In closing argument, appellant’s counsel stressed several times that the jury
should not believe Bell who was lying to cover himself.
Lastly, the evidence not only included Cox’s and Bell’s testimony, it also included the
video tape and audio tape from the transactions as well as the officers’ testimony regarding the
controlled drug buys. Based on all of the evidence admitted at trial as well as the omitted
evidence, the nondisclosure of the false positive reading was not material, and thus did not
undermine confidence in the outcome of the trial. Accordingly, appellant was not entitled to a
new trial, and the trial court did not err. As we hold the trial court did not err, no harmless error
analysis is necessary.
For the foregoing reasons, we conclude that the trial court did not err in denying
appellant’s motion to sever the two offenses, motion in limine to bar the admittance of Cox’s
testimony into evidence, and motion for a new trial on the basis of a Brady violation. Therefore,
we affirm appellant’s convictions.
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