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Mercer v. Commonwealth

Court of Appeals of Virginia

March 22, 2016

JAMES EDWARD MERCER
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAROLINE COUNTY. Jonathan C. Thacher, Judge Designate.

J. Todd Duval (McDonald, Sutton & Duval, PLC, on brief), for appellant.

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Beales and AtLee.

OPINION

Page 57

[66 Va.App. 142] ROBERT J. HUMPHREYS, JUDGE

James Edward Mercer (" Mercer" ) appeals the October 7, 2014 decision of the Circuit Court of Caroline County (the " circuit court" ) finding that no Brady violation occurred in his case and its decision denying Mercer's motion to set aside the verdict and for a new trial. Mercer's single assignment of error is that the circuit court's ruling constitutes a violation of his Fourteenth Amendment rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because of " the Commonwealth's failure to disclose evidence about the quality and reliability of the work by the lab technician who performed the certificates of analysis upon which the Commonwealth's case relied."

I. Background

In March 2014, a Caroline County grand jury issued three indictments against Mercer for distribution of a Schedule I or II drug in violation of Code § 18.2-248. On April 10, 2014, pursuant to Brady, Mercer filed a motion for disclosure of favorable evidence and statements. At Mercer's bench trial, on June 18, 2014, he entered a plea of not guilty. Additionally, Mercer answered in the affirmative that it was his intent to be tried without a jury.

At trial, Deputy Justin Cecil (" Deputy Cecil" ) and Investigator Christopher Wright (" Investigator Wright" ) of the Caroline County Sheriff's Department (" the Department" ) testified for the Commonwealth. Deputy Cecil testified that controlled purchases were conducted by the Department on September 27, 2013, October 8, 2013, and October 16, 2013. Investigator Wright testified that Mercer was the target of a controlled purchase operation and that the Department employed Charity O'Connell as its confidential informant (" C.I." ). Prior to each controlled purchase, Investigator Wright searched the person of the C.I. and Deputy Cecil searched the C.I.'s vehicle for any contraband. No contraband was ever found in these pre-purchase searches. Also, for each controlled purchase, Investigator Wright equipped the C.I. with an audio wire and gave her $100 in order to purchase narcotics.

[66 Va.App. 143] The September 27, 2013 and October 16, 2013 controlled purchases were conducted at

Page 58

23076 Telegraph Road. The October 8, 2013 controlled purchase occurred in a black Ford F-150 at the C.I.'s home. Every controlled purchase was audibly recorded by the Department. For controlled purchases on September 27, 2013 and October 16, 2013, Investigator Wright testified that he was unable to see the actual residence from his surveillance point. He also testified that he could not see who was inside the black Ford F-150 during the second controlled purchase on October 8, 2013. However, he testified that he had become familiar with Mercer's voice from listening to known tapes of Mercer's conversations at the Pamunkey Regional Jail and that he recognized the voice of the person in the black Ford F-150 during the controlled purchase on October 8, 2013 to be Mercer's voice. Additionally, the C.I. testified on behalf of the Commonwealth that on all three occasions she purchased cocaine from Mercer, and, after each controlled purchase, the C.I. provided Investigator Wright with the purchased narcotics. Mercer elected not to present any evidence during his trial.

Each of the three narcotics purchases was submitted to the Department of Forensic Science (" DFS" ) for analysis. Nancy M. Peace (" Peace" ), a forensic scientist employed by DFS, was the only forensic scientist to sign each certificate of analysis associated with Mercer's case. All three certificates specified that ...


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