                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia


RODNEY S. SMALL, JR.

v.        Record No. 0200-94-4         MEMORANDUM OPINION*
                                    BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                  JUNE 27, 1995


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                  Arthur B. Vieregg, Jr., Judge
          Frank W. Romano, Assistant Public Defender (Office
          of the Public Defender, on brief), for appellant.

          Robert H. Anderson, III, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on brief),
          for appellee.



     Rodney S. Small, Jr. (appellant) appeals from a judgment of

the Circuit Court of Fairfax County (trial court) that approved

jury verdicts convicting him of three counts of robbery and three

counts of use of a firearm in the commission of those felonies.

We granted an appeal limited to whether the trial court erred in

denying appellant's motions for mistrial or continuance, the said

motions arising out of the Commonwealth's late disclosure of

evidence that may have supported appellant's defense of duress.

At oral argument, appellant agreed that the issue requires this

Court to decide whether there was a reasonable probability that

the result would have been different if the "exculpatory

evidence" had been available and admitted into evidence at trial.


____________________

     *Pursuant to Code § 17-116.010, this opinion is not
designated for publication.


        Viewing the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom, the record discloses that on September 30,

1991, Michael Wills (Wills), Stephon Wilson (Wilson), and

appellant completed a planned robbery of Greenan & Sons jewelry

store.    A part owner, Walter Greenan (Walter) and his nephew

Eddie Greenan (Eddie) were in the store at the time of the

robbery.
        Shortly before the execution of their plan, appellant had

voluntarily entered a car driven by Wilson and in which Wills was

a passenger.    Appellant owed Wills $3,500 that he had received

from a drug sale he had made on behalf of Wills.    When appellant

entered the car, Wills did not demand payment of the money due

him but instead suggested that appellant might clear his debt by

assisting Wilson and Wills in the commission of a robbery.    The

three men then drove around viewing potential subjects to be

robbed and decided that the Greenan & Sons jewelry store would be

their target.

        Appellant alone entered the store and pretended to be a

customer looking for a ring for his girlfriend. 1   Appellant left

the store without making a purchase and shortly thereafter, armed
    1
     Appellant denied entering the store prior to the robbery and
stated that Wills was the first to go in and appraise the
conditions. An F.B.I. report, hereafter referred to and upon
which appellant relies, shows Wilson to have confirmed that
appellant was first to enter.



                                 - 2 -
with a gun, returned with Wills and Wilson.    Appellant leaped

over a counter toward Walter and put a gun to Walter's head,

threatening to "blow out [his] brains if [he] failed to comply

with appellant's demands."

       The robbers forced the victims to open the cash register

from which they took money and jewelry.   That act was followed by

appellant grabbing Walter's hair and forcing him to reveal other

places from which the robbers took more money.   All three robbers

were heard "snickering" as they left the store, each holding a

bag as they ran toward a waiting automobile.
       At trial, appellant testified that he was forced by the

other robbers to participate in the crimes by bodily harm threats

made against him and members of his family.    Appellant stated

that these threats resulted from appellant's failure to pay Wills

the $3,500 owed from his earlier drug sale.    At trial, appellant

testified in his behalf.   Also testifying for the defense were

appellant's mother (Jennette) and her boyfriend (Moon).

Appellant, Jennette, and Moon testified that shortly after the

drug sale, two men forced their way into Jennette's house.   At

the time, Jennette, appellant, and Moon were in the house.   They

said that the men wore ski masks and carried automatic guns.

Appellant identified one of these men as Wilson and testified

that Wilson pointed a gun at appellant and threatened to kill

him.   Appellant, Jennette, and Moon all testified that the men

tied up Jennette and Moon, taped their mouths, placed pillow




                                - 3 -
cases over their heads, and stole $75 from Moon.   Moon and

Jennette said they heard appellant say to the intruders, "please

don't kill me."   Appellant further testified that a siren sounded

that caused the men to flee and shortly thereafter the police

came to Jennette's house.   Appellant did not tell the police that

Wilson and the other man had been there and threatened to kill

anyone.   Appellant further testified that as he and Wilson waited

in the car, Wills entered the store.   Appellant said that he told

Wilson, "Man, I don't want to do this," to which Wilson replied,

"Don't make me take you back and shoot your mother in front of

you and shoot you."
     The record discloses the following colloquy that occurred on

the morning of the second day of the trial:
          THE COURT:     Is there anything before we
          call in the jury?
          [THE PROSECUTOR]: Well, counsel and I were
          talking about somewhat of an exculpatory
          nature, evidence of an exculpatory nature
          that came to our attention late this morning
          actually.
               And I don't know, are we finished
          talking about that or --
          [DEFENSE COUNSEL]: Yes, sir. I have -- [the
          prosecutor] said that he had talked to a
          detective from D.C., Detective Wilson, who
          made him aware of some information from --
          that Investigator Wilson talked to Stephon
          Wilson, who was the third person involved in
          this robbery. And some of the interview with
          Investigator Wilson, which just came to [the
          prosecutor's] notice this morning, appeared
          to be of an exculpatory nature. He made me
          aware of that.
               I have no problem with the timing of
          that. I'm convinced that [the prosecutor]
          just became aware of it now and I don't have
          any complaints about the timing of it or it
          being turned over when it was.



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The evidence described as being "of an exculpatory nature" was

given to an F.B.I. agent in the District of Columbia and the

agent's notes 2 reflect that Wilson, a codefendant in the Greenan

& Sons robbery, made the following statement during an interview

of Wilson by the agent stationed in the District of Columbia:
            Regarding the robbery of the GREENAN AND
          SON'S [sic] jewelry store located on Backlick
          Road in Fairfax, Virginia, WILSON provided
          the following information:

            WILSON advised that on the day that he,
          MICHAEL WILLS and RODNEY SMALLS [sic] robbed
          the GREENAN AND SON'S [sic] jewelry store,
          they drove to the jewelry store in a stolen
          300ZX which had been stolen prior to the
          robbery. WILSON advised that they pulled
          into the parking lot, all three riding in the
          300ZX. WILLS intimidated SMALLS [sic] into
          going into the jewelry store to make an
          initial inquiry about an expensive piece of
          jewelry. WILSON advised that SMALLS [sic]
          went into the jewelry store and then he and
          WILLS followed him into the store moments
          later. WILSON stated that upon entering the
          store he recalls SMALLS [sic] telling the
          sales people that this store was being held
          up. WILSON held one of the sales people down
          on the ground by kneeling on his back.
          WILSON advised that he held this one
          individual down throughout the entire robbery
          and that SMALLS [sic] and WILLS were
          responsible for grabbing the actual jewelry.
           WILSON recalls a lady who was apparently a
          customer of the store departing as they were
          arriving and remembers watching her get into
          her vehicle and sit in the parking lot as if
          she was aware of the robbery as it was
          happening. WILSON yelled out to SMALLS [sic]
          and WILLS that they should hurry up so that
          they could leave quickly as there was
   2
     The notes were not made an exhibit; however, on appellant's
motion, the trial court specifically ordered that they were part
of the record.



                              - 5 -
             somebody that was watching them.


(Emphasis added.)    District of Columbia Detective Wilson, who was

present when the alleged exculpatory statement was made to the

F.B.I. agent, recalled that the use of the word "intimidated" was

more of ridicule than threat.

        After the Commonwealth had presented its evidence in chief,

and appellant had presented his corroborative evidence and

testified himself, appellant, for the first time moved the trial

court for a mistrial or a continuance to give him an opportunity

to bring Wilson to court to testify.
        Appellant does not claim that the Commonwealth withheld

exculpatory information sought pursuant to a duly filed motion

for discovery.    Nor does he assert that any Fairfax governmental

agency possessed that information prior to the second day of his

trial.    He clearly stated at trial that he did not have "any

complaints about the timing of it or it being turned over when it

was."    He argues, however, that the prosecutor is charged with

constructive notice of Wilson's statement contained in the F.B.I.

files.

        The trial court found that even if the information is

exculpatory, evidence in the possession of the District of

Columbia police is not imputable to the Fairfax police.    We

agree.     See Knight v. Commonwealth, 18 Va. App. 207, 212, 443

S.E.2d 165, 168 (1994), where this Court held that constructive

knowledge of information in the possession of police is not



                                 - 6 -
attributed to the prosecutor when possession of the knowledge is

in a law enforcement agency of a different jurisdiction.      See

also Conway v. Commonwealth, 12 Va. App. 711, 715, 407 S.E.2d

310, 312 (1991).

     Suppression by the prosecution of evidence favorable to an

accused may be a violation of due process if the evidence is

material to either guilt or punishment.     Brady v. Maryland, 373

U.S. 83, 87 (1963).   But the evidence is material only if there

is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different.   Id. at 87; Taitano v. Commonwealth, 4 Va. App. 342,

349, 358 S.E.2d 590, 594 (1987).   United States v. Bagley, 473

U.S. 667 (1985), relied upon by appellant, is in accord.      A

"reasonable probability" is a probability sufficient to undermine

confidence in the outcome of the trial.     Robinson v.

Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164 (1986).

     If Wilson had been present and testified in accord with the

F.B.I. agent's notes, he would first have corroborated Walter's

testimony that appellant had first entered the store alone,

thereby contradicting appellant's denial.    To corroborate

appellant's testimony, Wilson then would have had to say he was

one of the two men who entered Jennette's house, threatened to

kill appellant and his family, and stole $75 from Moon.    Then

later, concerning the conversation that took place outside the

jewelry store, Wilson would have had to confirm appellant's



                               - 7 -
testimony that appellant told him, "Man, I don't want to do

this," and that Wilson replied, "Don't make me take you back and

shoot your mother in front of you and shoot you."   The likelihood

of such testimony was beyond a "reasonable probability."

     We hold that even if the prosecutor were charged with

constructive knowledge of the matter contained in the F.B.I.

agent's notes, there is not a reasonable probability that had it

been given to appellant in advance of the trial the result of the

proceeding would not have been different.   See Epperly v. Booker,

235 Va. 35, 41, 366 S.E.2d 62, 63 (1988).

     For the reasons stated, the judgment of the trial court is

affirmed.

                                              Affirmed.




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