                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Haley, Petty and Powell
Argued by teleconference


DELONTE BRUCE SAMUELS
                                                                 MEMORANDUM OPINION * BY
v.       Record No. 2849-09-3                                      JUDGE CLEO E. POWELL
                                                                     NOVEMBER 30, 2010
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                                 Robert M. D. Turk, Judge

                   (Joel S. Jackson; Joel S. Jackson, P.C., on brief), for appellant.
                   Appellant submitting on brief.

                   Donald E. Jeffrey, III, Senior Assistant Attorney General
                   (Kenneth T. Cuccinelli, II, Attorney General, on brief), for
                   appellee.


         Delonte Bruce Samuels (“Samuels”) appeals his conviction for distribution of cocaine.

On appeal, Samuels argues that the trial court erred in denying his motion to disclose the identity

of the confidential informant who was the only other participant in the transaction. Samuels

further contends that, once it was revealed that his attorney had previously represented the

confidential informant, the trial court erred in denying his motion for a continuance and his

attorney’s motion to withdraw. For the reasons that follow, we affirm the decision of the trial

court.

                                             BACKGROUND

         The facts in this matter are not in dispute. On January 23, 2008, Samuels sold a quantity

of cocaine to a confidential informant working with Detective A.B. Durham of the Christianburg


         *
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Police Department. On August 8, 2008, Samuels was indicted on a charge of distributing

cocaine in violation of Code § 18.2-248(A).

       In a pretrial motion, Joel Jackson, Samuels’s attorney, sought to compel the

Commonwealth to disclose the name, contact information, and criminal record of the

confidential informant. At the March 2, 2009 hearing on the motion, only Detective Durham

testified. During his testimony, the following colloquy occurred:

              [Commonwealth:]         [A]re you aware of any facts which caused
                                      you concern in revealing the identity of the
                                      confidential informant in this case?

              [Det. Durham:]          Yes I am.

              [Commonwealth:]         If you would, please tell the judge what
                                      those are.

              [Det. Durham:]          I received a phone conversation from a[n]
                                      individual related to a separate case with Mr.
                                      Samuels that has been intimidated –

              Mr. Jackson:            Judge, I’d object again. That’s hearsay.

              [Commonwealth:]         We are potentially laying –

              [The Court:]            Well not necessarily for the truth of the
                                      matter but just why he believes what he
                                      believes, so I’ll overrule the objection.

              [Det. Durham:]          This individual had received threats from
                                      Mr. Samuels’ family, uh, and I have spoken
                                      with another individual that has, uh, been
                                      intimidated to the point of threats of murder
                                      or bodily harm.

       It was subsequently revealed that the threats were made by Pamela Samuels, Samuels’s

mother, and Marcus Samuels, a close family member. Additionally, the Commonwealth also

proffered, without objection, that Samuels had previously been convicted of murder.

       After hearing all of the evidence, the trial court denied the motion, stating:

              I think there are reasonable grounds from the Commonwealth that
              have been stated . . . concerns about why they do not wish to
                                                -2-
               release the name of the informant and I think the only reason that
               the defendant wants to know is just so he can go talk to her and
               that’s it . . . I don’t think that is a sufficient enough reason to
               release her name versus the concerns by the Commonwealth . . . .
               While I think it’s important for the informant to remain nameless
               at this point in time, all the other information has been made
               available insofar as the confidential informant’s criminal activity,
               if any, and what . . . compensation was made to them that would
               allow you to go forward at least on those avenues of
               cross-examining the confidential informant.

       Although the trial court denied Samuels’s motion to disclose, at the hearing the

Commonwealth revealed limited information about the confidential informant’s criminal record,

namely that the informant had not been convicted of any felonies or crimes involving moral

turpitude.

       At trial, the Commonwealth called as its first witness the confidential informant,

revealing her identity as Sherry Yates (“Yates”). As she testified, it was revealed that Yates was

a former client of Mr. Jackson. Mr. Jackson moved for a continuance and ultimately to withdraw

as Samuels’s attorney, arguing that he had a conflict of interest and could not pursue certain lines

of questioning as a result. The trial court asked Mr. Jackson if he was aware of any confidential

information arising out of his representation of Yates that he would have to reveal if he

continued to represent Samuels. In response, Mr. Jackson stated, “I can’t tell you one hundred

percent that there is, but I have a strong trepidation about going forward with a client that I

formerly represented or a current client.”

       The trial court then allowed the Commonwealth to voir dire Yates about Mr. Jackson’s

previous representation.

               [Commonwealth]:         Ms. Yates, what charge were you
                                       represented by Mr. Jackson?

               Ms. Yates:              He represented me on a driving on
                                       suspended.

               [Commonwealth]:         Okay, driving on a suspended license?

                                                -3-
               Ms. Yates:                    Uh huh.

               [Commonwealth]:        Any other charges?

               Ms. Yates:                    No sir.

                          *      *       *       *      *       *       *

               The Court:             [D]id you speak to him about anything other
                                      than driving on a suspended license?

               Ms. Yates:             I had a brief meeting with him for maybe
                                      five minutes.

               The Court:             Regarding driving on a suspended license?

               Ms. Yates:             He told me what the stipulations were for
                                      the charge and what I was going to get and
                                      when we came to court, that’s what I got.

               [Commonwealth]:        So you did not reveal anything that you
                                      would consider to be a personal confidence,
                                      something confidential, something secret to
                                      him?

               Ms. Yates:                    No.

       After further discussion, the trial court advised counsel that he was going to deny the

motions “unless [Mr. Jackson] can tell me what about [his] representation of Mr. Samuels

constitutes a conflict in trying to examine Ms. Yates.” Mr. Jackson responded, “Judge, I mean, I

can’t come up with a reason at this time.”

       As he began to cross-examine Yates, Mr. Jackson specifically asked if she was “waiving

any kind of privilege, attorney/client privilege pursuant to our previous representation,” to which

Yates replied, “Yes sir.” Mr. Jackson then inquired as to why she agreed to work as a

confidential informant. Yates explained that she had a family history of drug use, which

included her, both of her parents, and her husband, Frankie Yates. Mr. Jackson then renewed his

motion to withdraw, stating that he believed that he may have another conflict, as he may have




                                               -4-
previously represented Frankie Yates. The trial court again denied the motion, because

Mr. Jackson was not sure whether or not he actually represented Frankie Yates.

       After hearing all of the evidence, the trial court found Samuels guilty of distribution of

cocaine and sentenced him to ten years in prison, with five years suspended.

       Samuels appeals.

                                            ANALYSIS

                             1. Identity of the Confidential Informant

       Samuels argues that the trial court erred by refusing to reveal Yates’s identity prior to

trial. Specifically, Samuels contends that, because Yates was the only other actual participant in

the transaction, under Roviaro v. United States, 353 U.S. 53 (1957), the Commonwealth was

required to reveal her identity to him before trial so that he could properly prepare for trial.

Samuels posits that the principles of fundamental fairness dictate that he have the opportunity to

prepare his defense with Yates’s identity in mind. 1

       It is well established that “the identity of a person furnishing the prosecution with

information concerning criminal activities is privileged.” Gray v. Commonwealth, 233 Va. 313,

328, 356 S.E.2d 157, 165 (1987). However, “where the disclosure of an informer’s identity . . .

is relevant and helpful to the defense of an accused, or is essential to a fair determination of a

cause, the privilege [of nondisclosure] must give way.” Roviaro, 353 U.S. at 60-61.

               We believe that no fixed rule with respect to disclosure is
               justifiable. The problem is one that calls for balancing the public
               interest in protecting the flow of information against the
               individual’s right to prepare his defense. Whether a proper balance
               renders nondisclosure erroneous must depend on the particular
               circumstances of each case, taking into consideration the crime


       1
        Although Samuels argues that he was denied the opportunity to “incorporate into his
opening statement an entrapment or accommodation defense and to examine [Yates] with
knowledge of this defense in mind,” he never raised this issue before the trial court. Therefore,
Rule 5A:18 bars our consideration of that specific argument.
                                              -5-
               charged, the possible defenses, the possible significance of the
               informer’s testimony, and other relevant factors.

Id. at 62.

        Under the Roviaro balancing test, a distinction is drawn “between informants who are

participants in the criminal offense and those who are mere ‘tipsters.’” Daniel v.

Commonwealth, 15 Va. App. 736, 740, 427 S.E.2d 423, 425 (1993).

               Generally, where the informant is a tipster who merely supplies
               information, knowledge of his or her identity “‘would not be
               essential in preparing the defense of the accused.’” Keener v.
               Commonwealth, 8 Va. App. 208, 213, 380 S.E.2d 21, 24 (1989)
               (quoting McLawhorn v. North Carolina, 484 F.2d 1, 5 (4th Cir.
               1973)). On the other hand, in contrast to cases involving a mere
               tipster, “‘where the informant is an actual participant, and thus a
               witness to material and relevant events, fundamental fairness
               dictates that the accused have access to him [or her] as a potential
               witness.’” Id. Thus, disclosure of an informant’s identity is
               required where the informant is an actual participant.

Id. (emphasis added); see also McLawhorn, 484 F.2d at 5 (“disclosure of the informant’s identity

is required where the informer is an actual participant, particularly where he helps set up the

criminal occurrence”); United States v. Barnes, 486 F.2d 776, 778-79 (8th Cir. 1973) (“where the

witness is an active participant or witness to the offense charged, disclosure will almost always

be material to the accused’s defense”).

        However, this Court has previously recognized that, under certain circumstances, where

the informant’s identity is “disclosed by the evidence . . . the erroneous denial of disclosure is

harmless error.” Daniel, 15 Va. App. at 741, 427 S.E.2d at 426; but see Keener, 8 Va. App. at

216, 380 S.E.2d at 26 (reversing the conviction where “the Commonwealth’s failure to disclose

the identity of the informant until after the commencement of the proceedings clearly had an

effect on [the defendant’s] defense”). This would appear to be especially true where the

informant testifies at trial. See, e.g., United States v. Perkins, 994 F.2d 1184, 1191 (6th Cir.

1993) (finding no error where the informant testified at trial, was subject to cross-examination,

                                                -6-
and the defendant did not seek a continuance on grounds of unfair surprise); United States v.

Foster, 815 F.2d 1200, 1203 (8th Cir. 1987) (finding no error where the informant testified at

trial, was subject to extensive cross-examination, and the defendant did not request a continuance

or an opportunity to voir dire the informant); United States v. Pennick, 500 F.2d 184, 187 (10th

Cir. 1974) (finding no error where informant’s testimony at trial “ruled out the possibility that

the [informant’s] testimony could somehow be helpful to [the defendant]”). Assuming without

deciding that the trial court abused its discretion in denying Samuels’s motion to disclose Yates’s

identity, we hold that, under the facts of this case, such error is harmless. 2

        Here, Yates testified at trial. She was subject to extensive cross-examination. Samuels

never sought a continuance 3 on grounds of unfair surprise 4 and he never sought to voir dire


        2
        Our assumption that the trial court’s denial of Samuels’s motion to disclose was facially
erroneous renders Samuels’s second question presented moot.
        3
          We recognize that, at one point during Yates’s testimony, Samuels sought a
continuance; however, it is clear from the record that the request was related to the potential
conflict of interest discussed below.
        4
         Indeed, we note that Samuels was no more “unfairly surprised” by the testimony of
Yates than he would have been by the testimony of any other witness for the Commonwealth
whose name had not been divulged prior to trial.
       The facts of this case make our previous holding in Keener, 8 Va. App. at 208, 380
S.E.2d at 21, inapposite. In Keener, the defendant sought all exculpatory information possessed
by the Commonwealth. Thus, the issue in Keener was whether the Commonwealth’s failure to
disclose the identity of the informant before trial amounted to a Brady violation. Finding it was a
Brady violation, we held that the Commonwealth’s failure prejudiced the defendant, because

                By the time the defense learned the identity of the informant, the
                jury had been selected and sworn, opening statements made, and
                testimony of the prosecution’s witnesses commenced. No amount
                of additional time could have compensated for the lost opportunity
                to select jurors who would be receptive to a potential entrapment
                or accommodation defense, to incorporate the defense into the
                opening statement, or to examine witnesses for the prosecution
                with this defense in mind.

Id. at 216, 380 S.E.2d at 26.

                                                 -7-
Yates on the basis of her knowledge. Additionally, Yates’s testimony makes clear that she did

not possess any information about the crime that could somehow be helpful to Samuels. 5

Accordingly, even assuming that the trial court erred in denying Samuels’s motion to disclose,

because Yates actually testified at trial, such error was harmless.

                                       2. Conflict of Interest

       Samuels argues that the trial court erred in denying his motion for a continuance and his

counsel’s motion to withdraw when it was discovered that Samuels’s attorney had previously

represented Yates and possibly her estranged husband. Samuels contends that he was denied a

fair trial because Mr. Jackson had “strong trepidation” in cross-examining a former client and

therefore could not zealously cross-examine her. The Commonwealth, however, contends that

because Yates waived her attorney-client privilege, there was no conflict of interest.

       The Sixth Amendment to the Constitution guarantees that “in all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The

purpose of this guarantee has been recognized as “simply to ensure that criminal defendants

receive a fair trial.” Strickland v. Washington, 466 U.S. 668, 689 (1984); see also Wheat v.

United States, 486 U.S. 153, 159 (1988) (“the essential aim of the [Sixth] Amendment is to

guarantee an effective advocate for each criminal defendant . . .”). “Accordingly, any




        In the present case, Samuels did not argue that a Brady violation occurred. Additionally,
unlike Keener, this case was a bench trial, and therefore there could be no effect on jury
selection. The defenses of entrapment and accommodation were still available to Samuels;
however, he chose not to pursue them. Similarly, the Commonwealth’s first witness was Yates,
therefore any examination of the Commonwealth’s witnesses would necessarily have been done
with Samuels’s defense strategy in mind. Also, if Samuels had been unfairly surprised, a request
for a continuance would have allowed him to prepare to address the surprise. However, as we
previously stated, he made no request for a continuance on the grounds of unfair surprise.
       5
        The fact that Samuels’s version of events (i.e., that he wasn’t the person who sold
drugs) was in direct contravention of Yates’s version further supports this point.

                                                -8-
deficiencies in [defense] counsel’s performance must be prejudicial to the defense in order to

constitute ineffective assistance under the Constitution.” Strickland, 466 U.S. at 691-92.

       However, “prejudice is presumed when [defense] counsel is burdened by an actual

conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the

most basic of counsel’s duties.” Id. at 692; see also Cuyler v. Sullivan, 446 U.S. 335, 349-50

(1980) (“a defendant who shows that a conflict of interest actually affected the adequacy of his

representation need not demonstrate prejudice in order to obtain relief”).

       The Supreme Court has tacitly recognized that an actual conflict of interest exists where

an attorney’s ability to conform with the ABA Code of Professional Responsibility 6 is impaired.

Wheat, 486 U.S. at 162.

               “Such representation not only constitutes a breach of professional
               ethics and invites disrespect for the integrity of the court, but it is
               also detrimental to the independent interest of the trial judge to be
               free from future attacks over . . . the fairness of the proceedings in
               his own court . . . .”

Id. (quoting United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir. 1978)).

       Thus, at the outset we must determine whether there was an actual conflict of interest

and, if so, whether that conflict adversely affected Mr. Jackson’s representation of Samuels. We

are guided by Rule 1.7(a)(2) of the Virginia Rules of Professional Conduct, which states:

               A concurrent conflict of interest exists if . . . there is significant
               risk that the representation of one or more clients will be
               materially limited by the lawyer’s responsibilities to another client,




       6
         The ABA Code of Professional Responsibility was replaced by the ABA Model Rules
of Professional Conduct in 1983. As both the ABA Code of Professional Responsibility and the
ABA Model Rules of Professional Conduct serve the same purpose, prescribing the standard of
ethics and professional responsibility for lawyers, we hold that the Supreme Court’s rationale in
Wheat applies equally to the ABA Model Rules of Professional Conduct, upon which the
Virginia Rules of Professional Conduct are based.

                                                 -9-
               a former client or a third person or by a personal interest of the
               lawyer.

(Emphasis added).

       Rule 1.7(a)(2) of the Virginia Rules of Professional Conduct makes it clear that a

potential conflict of interest does not amount to an actual conflict of interest unless there is a

“significant risk that the representation of one or more clients will be materially limited.” In

United States v. Young, 644 F.2d 1008 (4th Cir. 1981), the Fourth Circuit examined a similar,

although factually distinguishable, argument. The court held that, where a trial court is alerted to

a potential conflict of interest, the proper course of action is to hold an evidentiary hearing to

explore the nature of the conflict. At the evidentiary hearing, the trial court can inquire of the

attorney with the potential conflict whether he received any information during his representation

of his former client that could be used on cross-examination to buttress his current client’s case.

Id. at 1013-14. “An inquiry of this nature accords great weight to a lawyer’s perception of a

conflict, but . . . ‘courts necessarily rely in large measure upon the good faith and good judgment

of defense counsel’ in determining whether an actual conflict of interest exists.” Id. at 1014

(quoting Cuyler, 446 U.S. at 347).

       Finding the logic of the Fourth Circuit to be applicable to the present case, we hold that

where a party alerts the trial court to a potential conflict of interest due to an attorney’s previous

representation of a witness, the proper course of action is for the trial court to investigate, in

some fashion, the potential conflict of interest. The trial court should focus primarily on whether

the attorney received any confidential information 7 from the former client that is beneficial to the




       7
         For obvious reasons, the trial court should avoid investigating the nature or content of
the confidential information.

                                                 - 10 -
current client. 8 If the investigation reveals that the attorney does not possess any such

information, there is no significant risk that the attorney’s representation of the current client will

be materially affected, and therefore, no conflict of interest exists. If, however, the investigation

reveals that the attorney does possess such information, there is a significant risk that the

attorney’s representation of the current client will be materially affected, and therefore, a conflict

of interest exists.

        In the present case, the record establishes that Mr. Jackson did not recall anything about

his previous representation of Yates, other than the fact that he had previously represented her.

Additionally, the trial court went a step further and allowed the Commonwealth to voir dire

Yates about Mr. Jackson’s previous representation. 9 According to Yates, she only had a brief,

five-minute meeting with Mr. Jackson and did not reveal anything that she would consider to be

a personal confidence to him. As such, there was no risk, significant or otherwise, that Mr.

Jackson’s representation of Samuels was materially affected. Accordingly, there was no conflict

of interest and the trial court was correct in allowing the trial to proceed.




        8
         The fact that the attorney may have received confidential information from the former
client does not, in itself, create a conflict of interest. Where the information received is neutral
or detrimental to the current client, it unlikely that the attorney’s responsibilities toward his
former client will pose a significant risk that the attorney’s representation of the current client
will be materially affected.
        9
          Yates unequivocally waived her attorney-client privilege with regard to her previous
representation by Mr. Jackson. Her waiver is relevant with regard to the trial court’s
investigation into the nature of the information Mr. Jackson received and Mr. Jackson’s
subsequent cross-examination of Yates. See Rule 1.6(a) of the Virginia Rules of Professional
Conduct (recognizing that the attorney-client privilege belongs to the client, not the attorney).
Without a waiver by Samuels, however, Yates’s waiver alone is not dispositive of Mr. Jackson’s
ability to continue to represent Samuels. See Rule 1.7(b) of the Virginia Rules of Professional
Conduct (“Notwithstanding the existence of a concurrent conflict of interest . . . a lawyer may
represent a client if each affected client consents after consultation . . . .” (emphasis added)).
                                                - 11 -
                                         CONCLUSION

       For the foregoing reasons, we hold that any error on the part of the trial court in denying

Samuels’s motion to reveal Yates’s identity prior to trial was harmless. Further, we affirm the

decision of the trial court denying Samuels’s motion to continue and Mr. Jackson’s motion to

withdraw, as there was no significant risk that Mr. Jackson’s previous representation of Yates

would materially affect his current representation of Samuels.

                                                                                         Affirmed.




                                              - 12 -
