                   COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Richmond, Virginia


IDA LYNNETTE DAVIS, S/K/A
 IDA LYNETTE DAVIS
                                         OPINION BY
v.   Record No. 0269-96-3         JUDGE JAMES W. BENTON, JR.
                                      SEPTEMBER 30, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                    Mosby G. Perrow, III, Judge
           Elizabeth P. Murtagh, Assistant Public
           Defender, for appellant.

           Ruth Ann Morken, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      Ida Lynnette Davis was convicted by a jury of distribution

of cocaine in violation of Code § 18.2-248.   On appeal, Davis

argues that the trial judge erred in (1) denying her pretrial

motion for disclosure of the location of the police officers'

observation post; (2) prohibiting her from calling witnesses to

rebut the officer's testimony regarding his ability to view the

place where the officer alleged Davis made the distribution; (3)

denying portions of her pretrial Brady motion for discovery of
exculpatory evidence; (4) denying her pretrial request for

production of "mug shots" of other women arrested in the same

location for selling cocaine; and (5) denying her motion to

strike at the close of all the evidence.    For the reasons that

follow, we reverse the conviction and remand the case for further

proceedings consistent with this opinion.
                                  I.

     The evidence proved that from 7:15 p.m until 8:30 p.m. on

July 14, 1995, police investigators J. S. Taylor and A. S. Thomas

conducted a surveillance of the 2100 block of Main Street in

Lynchburg.   Officer Taylor testified that Davis was on the

sidewalk with another woman, that he had known Davis for almost

two years, that he had seen her more than ten times, and that he

previously had seen her from a distance of a "[f]ace-to-face

conversation."
     Officer Taylor observed another individual, later identified

as Linda Jones, arrive driving a white Toyota.   Taylor testified

that Jones exited the car, approached Davis on the sidewalk in

front of a house at 2110 Main Street and gave Davis some folded

paper resembling money.   Davis went inside the house.   When Davis

returned, she dropped an "off-white chunk" from her closed right

fist into Jones' extended hand.    Jones looked at the item, put

the item into the right front pocket of her shorts, entered her

car and drove away.

     A police officer stopped Jones after she drove away and

seized the item that Jones put in her pocket.    The item the

officer seized from Jones was later tested and found to be

cocaine.

     Jones testified that she drove a white Toyota to 2110 Main

Street on July 14, 1995 to purchase drugs.   Jones remembered

buying cocaine but could only describe the seller as a heavy,




                                  2
black woman with curls in her hair.     On cross-examination,

counsel for Davis asked Jones whether Davis was the seller.

Jones stated, "No.   It was not her."   On redirect, Jones

testified that she was unable to identify the seller and that she

did not know whether Davis was the seller.

     After the Commonwealth rested, Davis called her grandmother

as a witness.    Davis' grandmother testified that she resides at

2110 Main Street and that Davis resides on another street with

Davis' mother.   The grandmother testified that on July 14, 1995,

she was home because two men were renovating her kitchen at 2110

Main Street.    Davis arrived in the afternoon, helped the

grandmother and cleaned household items on the sidewalk and the

porch.   Around 7:00 p.m. that day, Davis was moving the items

back into the house.   The grandmother left the house at

approximately 7:20 p.m. and returned at 10:40 p.m.    The

grandmother also testified that "the street's always full of

people."
     Davis testified in her own defense.     She testified that she

did not know Jones, had never seen her before and did not sell

drugs on July 14, 1995.   Davis further testified that on July 14,

1995 she was washing her grandmother's stove and cabinets on the

front porch and sidewalk.   She also testified that many people

were standing on the sidewalk that evening.

     The trial judge overruled Davis' motion to strike the

evidence.   The jury found Davis guilty of distribution of




                                  3
cocaine, and the judge imposed the jury's sentence of five years

in the penitentiary and a fine of $500.

                               II.

     Davis argues that the trial judge erred in denying her

pretrial "Motion to Compel Disclosure of Observation Post."   We

agree.

     "[T]he Commonwealth has a qualified privilege not to

disclose the location" of a police observation post.    Hollins v.
Commonwealth, 19 Va. App. 223, 226, 450 S.E.2d 397, 399 (1994).

The Commonwealth's privilege is limited, however, by "the

fundamental requirements of fairness," which require

consideration of an accused's "right to prepare [a] defense."

Roviaro v. United States, 353 U.S. 53, 60, 62 (1957).   Setting

forth the analysis applicable to requests for disclosure of

observation posts, this Court stated the following in Hollins:
          To compel the disclosure of the exact
          location of a surveillance post, [a
          defendant] must "show that [she] needs the
          evidence to conduct [her] defense and that
          there are no other adequate alternative means
          of getting at the same point." Only then
          must the court balance the public interest in
          effective law enforcement and citizens'
          safety against the defendant's constitutional
          right to [prepare a defense and] confront
          government witnesses.


19 Va. App. at 227, 450 S.E.2d at 399 (citation omitted).

     After a pretrial evidentiary hearing, the trial judge

overruled Davis' motion on the ground that Davis had failed to

prove she needed to know the location of the observation post.



                                4
Davis contends that she had proved a need for the information in

order to prepare her case and properly cross-examine the police

officers.   We agree that the record contains such proof.

     In Hollins, this Court found that Hollins failed to show "a

required need for disclosure of the observation post" because he

"failed to show any possible obstruction in the area, to question

the officer about any obstructions or to present any independent

evidence of obstructions" in the relevant block of the street.
See id. at 228, 450 S.E.2d at 400.   Unlike in Hollins, counsel

for Davis offered independent evidence showing that obstructions

existed in the area.   Officer Taylor testified that when he

observed Davis on July 14 he was "[w]ithin a city block" from

Davis and used binoculars to aid his vision.   Although Officer

Taylor testified that he "had clear vision, no obstructions,"

Davis offered into evidence numerous photographs that revealed,

in the area around the 2100 block of Main Street, trees, other

foliage, telephone poles, columns and railings.   The investigator

who photographed the area testified that "[d]epending on where

[the police] were located," the officers' views may have been

obstructed.   Nevertheless, the trial judge stated that "there

could be any number of observation points within [the]

circumference [around the 2100 block] from which you would have

an unobstructed view."

     We hold that the trial judge erred in finding that Davis

failed to show she needed information regarding the location of



                                 5
the officers' surveillance post. 1       Counsel proved, through

independent evidence, the presence of obstructions in the area.

Moreover, the record contains essentially no evidence to

corroborate the testimony of the surveillance officer.        See id.

at 227-28, 450 S.E.2d at 399-400 (considering "the quality of any

corroborating evidence" as a factor in the inquiry).        The

evidence establishes that other people were in the vicinity, and

that the purchaser of the cocaine could not identify Davis as the

seller.    This case is distinguishable from Hollins, and we find
that Davis met her burden of showing a need for the information.

 Accord Commonwealth v. Lugo, 548 N.E.2d 1263, 1268 (Mass. 1990).

                                  III.

        Davis also argues that the trial judge erred in ruling that

she could not offer as witnesses two property owners who, Davis

alleges, allowed the officers to use their land for the

observation post. 2   We agree.
    1
     Although counsel independently discovered the identity of
the individuals who permitted the officers to use their land,
nothing in the record indicates that those individuals knew
precisely where the officers stood when they made their
observations. Thus, the availability of the land owners did not
obviate Davis' need for the information.
    2
     Four days before trial, Davis filed a motion for a
continuance, in part on the ground that she had recently become
aware of two additional witnesses. Counsel told the judge that
the witnesses were two property owners who would "say that the
police were on their property, making their observations." The
trial judge referred to his prior ruling denying Davis' motion
for disclosure of the observation post and stated, "I'm not going
to allow you to bring those people in court to do indirectly what
I've ordered that you can't do directly." Counsel notified the
judge that the individuals were not "fearful of testifying." The
judge noted that "if they're going to come and testify anyway,"



                                   6
     "The Sixth Amendment of the United States Constitution

guarantees the right to confront and cross-examine witnesses, a

'fundamental right essential to a fair trial.'"     Hollins, 19 Va.

App. at 226, 450 S.E.2d at 399 (quoting Pointer v. Texas, 380

U.S. 400, 403 (1965)).   In addition, an accused has a "right 'to

call for evidence in [the accused's] favor.'"     Oliva v.

Commonwealth, 19 Va. App. 523, 526, 452 S.E.2d 877, 880 (1995)

(quoting Va. Const. Art. I, § 8).
          The right to offer the testimony of
          witnesses, and to compel their attendance, if
          necessary, is in plain terms the right to
          present a defense, the right to present the
          defendant's version of the facts as well as
          the prosecution's to the jury so it may
          decide where the truth lies. Just as an
          accused has the right to confront the
          prosecution's witnesses for the purpose of
          challenging their testimony, [the accused]
          has the right to present his own witnesses to
          establish a defense. This right is a
          fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19 (1967); see also Massey v.

counsel would not need a continuance in order to subpoena the
witnesses. The judge added that counsel could "have them
subpoenaed today." However, the judge noted that he was not sure
he was "going to let those witnesses on. I've already said that
. . . information [revealing the officers' observation post] was
not coming in." The judge further stated, "[W]e're not going to
explore that anymore . . . . I mean, that's not something that
you're going to be allowed to dance around in this trial." The
trial judge ruled that the continuance was unnecessary and denied
the continuance.

     On the morning of trial, at a pretrial conference in the
judge's chambers, the Commonwealth notified the judge that
counsel for Davis had subpoenaed the neighbors. The judge told
counsel that "we're not getting into the location of the
surveillance point . . . . So I don't want those witnesses
called for that purpose."



                                 7
Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 757-58 (1985).

     Because Officer Taylor was the only witness who described

the transaction, Davis' ability to raise the question whether

Officer Taylor's view was obstructed was crucial to her defense.

 Accord Lugo, 548 N.E.2d at 1268.    Although Officer Taylor

testified that he told the owner of the property used for the

surveillance "that [the officers' use of the property] would be

kept confidential to protect [the landowner] because [the

landowner] was in fear of retaliation," counsel for Davis

discovered those individuals independent of the officers and

asserted that those individuals were willing to testify.

Moreover, counsel for Davis also asserted that the surveillance

post was no longer being used by the police.   That assertion was

not refuted.
     Davis' right to present facts concerning the observation

post was thwarted by the trial judge's ruling that because the

Commonwealth was not required to disclose the location of the

post during discovery, Davis could not offer her own independent

evidence at trial in an attempt to prove the location of the post
and the obstructions.   Davis' counsel informed the trial judge

that she had located the property owners who would testify that

they were home when the police used their property as an

observation point.   Davis' counsel further represented that

"there are clear obstructions . . . there are things in the way."

Indeed, at a pretrial hearing, Davis' counsel offered as




                                 8
exhibits sixteen photographs that depicted "a three hundred and

sixty degree view of that area."       The witness who made the

photographs testified that obstructions were visible in some of

the photographs.

     In disallowing the testimony, the trial judge prevented

Davis from challenging the officers' ability to observe the

events about which they testified.      The trial judge erred in

excluding testimony of the witnesses that was relevant to that

inquiry.   Because the trial judge ruled that the Commonwealth was

not required to disclose the observation post, the error in

refusing to allow Davis to prove the site of the post through her

own witnesses was not harmless.
                                  IV.

     Because these issues are likely to arise again on remand, we

must also address Davis' argument that the trial judge erred in

denying her motion for discovery of exculpatory evidence and her

motion for discovery under Rule 3A:11.

                     A.   EXCULPATORY EVIDENCE

     Although "[n]o general constitutional right to discovery

exists in a criminal case," Allen v. Commonwealth, 20 Va. App.

630, 637, 460 S.E.2d 248, 251 (1995), rev'd on other grounds, 252

Va. 105, 472 S.E.2d 277 (1996), the Commonwealth may not refuse

to disclose material, exculpatory evidence.       See Brady v.

Maryland, 373 U.S. 83, 87 (1963).       "[T]he suppression by the

prosecution of evidence favorable to an accused upon request



                                   9
violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution."    Id.

     Counsel for Davis filed a Brady motion in which she sought

discovery of the following:

          1. All information regarding the number of
          African-American females that were observed
          on the 2100 block on July 14, 1995,
          specifically, the name of each individual,
          address, a physical description of the
          individual and the opportunity to observe or
          copy any photograph, video, fingerprint or
          other form of identification.
          2. The names of the police officers who were
          conducting the surveillance of the 2100 block
          of Main Street on July 14, 1995.

          3. The names and address[es] of all
          individuals observed by police officers who
          were suspected of being involved with drug
          trafficking or drug use on the 2100 block of
          Main Street on July 14, 1995 and the name of
          the officer who made the observation.


     Davis argues that several people were in the vicinity of the

residence at the time of the surveillance and that the identity

of those persons is exculpatory for several reasons.   She

contends that several women were arrested for selling drugs, that

she did not sell drugs, that the purchaser did not identify her

as the seller of drugs, and that the police officer misidentified

her as the seller.

     The information sought in paragraphs 2 and 3 was not shown

to be exculpatory.   As to the request in paragraph 1, we hold

that the trial judge erred under the circumstances presented.


                                    10
The person who purchased the drugs could not identify Davis as

the seller.    However, Officer Taylor who testified that he had

encountered Davis several times, unequivocally identified Davis

as the person who sold cocaine to Jones on July 14, 1995.    Davis

argues that Officer Taylor mistakenly identified her as the

person who sold cocaine on July 14, 1995.    The existence of

evidence that other African-American females were seen in the

vicinity of 2100 Main Street that same day might have a tendency

to prove Davis' defense that she was not the person Officer

Taylor observed selling drugs to Jones.    Evidence is exculpatory

under Brady and, therefore discoverable, if Davis could have used

it for impeachment purposes.     See United States v. Bagley, 473

U.S. 667, 676 (1985).   These records were discoverable under

Brady.

                        B.   RULE 3A:11 MOTION

     In a Rule 3A:11 motion, Davis also sought "photographs (mug

shots) of Ida L. Davis, Rhonda Davis Robinson, Demetrius Y.

Lambert Bradley, and Cylethia Skinner."    Under Rule 3A:11, an

accused can obtain items in the possession of the Commonwealth

"upon a showing that the items sought may be material to the

preparation of [the accused's] defense and that the request is

reasonable."   Rule 3A:11(a)(2).    Davis' counsel represented to

the judge that these persons were in the vicinity of the 2100

block of Main Street "on or about" July 14, 1995 and had been

arrested for selling drugs.    Indeed, the evidence proved Robinson



                                   11
resided at 2110 Main Street.    The identity of women who were

later arrested for selling drugs from that locale was material

not because Davis alleged that they were eyewitnesses, cf. Lowe

v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977),

but because it tended to support Davis' defense of

misidentification.   See Bowman v. Commonwealth, 248 Va. 130,

133-36, 445 S.E.2d 110, 112-13 (1994).   The additional assertion

that Davis shared some similar "features and physical

characteristics" was sufficient proof that the information may

have been material to the preparation of the case.   Accordingly,

we hold that the trial judge erred, under the circumstances, in

denying the discovery motion.
                                 V.

     Finally, Davis' argument that we should dismiss the

prosecution because the trial judge erred in denying her motion

to strike the evidence lacks merit.

     For the reasons stated, we remand the case for proceedings

consistent with this opinion.
                                          Reversed and remanded.




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