COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Chief Judge Decker, Judges Fulton and Ortiz Argued at Richmond, Virginia
KYLE RAYMOND POTTS MEMORANDUM OPINION* BY v. Record No. 1146-22-2 CHIEF JUDGE MARLA GRAFF DECKER JULY 2, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND W. Reilly Marchant, Judge
Kevin E. Calhoun for appellant.
Kelly L. Sturman, Assistant Attorney General (Jason S. Miyares, Attorney General; Rebecca M. Garcia, Assistant Attorney General, on brief), for appellee.
Kyle Raymond Potts appeals his convictions for four counts each of possession of a
controlled substance with intent to distribute and possession of a firearm while in possession of a
controlled substance with intent to distribute in violation of Code §§ 18.2-248 and 18.2-308.4. He
contends the evidence was insufficient to prove he possessed the drugs.1 He also argues that the
prosecution failed to turn over material impeachment evidence. We hold the trial court did not err,
and we affirm the appellant’s convictions.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 The appellant initially also assigned error to the sufficiency of the evidence to prove a nexus between the firearms and the drugs, as necessary to support his convictions for possessing the items simultaneously. On brief, however, he withdrew this assignment of error. As a result, we do not consider it. BACKGROUND2
This case arose out of an investigation by the Chesterfield County Police Department that
implicated the appellant in possessing a significant quantity of illegal drugs for distribution that
were found in a Richmond apartment. Immediately after the appellant was convicted of the
instant offenses, the Commonwealth turned over newly obtained evidence impeaching its
primary law enforcement witness, Detective Robert Sprouse. This opinion details the facts
relevant to the two issues on appeal—the sufficiency of the evidence and the failure to provide
impeachment evidence.
I. Investigation of the Appellant and the Evidence at Trial
Beginning in October 2019 and continuing into 2020, Detective Sprouse conducted a
drug investigation of the appellant. In the course of that investigation, Sprouse had a
confidential informant arrange meetings with the appellant. He also surveilled the appellant at
his Chesterfield residence and a Richmond apartment building several times, both alone and with
the help of other detectives. The investigation revealed that the appellant was frequenting
apartment 104 but that it was not leased to him.
Sprouse used the evidence from the investigation to complete a probable cause affidavit
regarding illegal drug distribution. As a result, he obtained search warrants for the appellant, his
residence in Chesterfield County, and the Richmond apartment. Sprouse conducted additional
surveillance of the Richmond apartment on the morning of April 15, 2020. After about two
hours, the detective saw the appellant leave the building with a woman and drive away in a Ford
Excursion he had previously been seen driving. Officers stopped the vehicle in Chesterfield
County and executed the search warrants.
2 On review, an appellate court considers the evidence and all inferences fairly deducible from the evidence “in the light most favorable to the Commonwealth, the prevailing party at trial.” Lambert v. Commonwealth, 298 Va. 510, 515 (2020). -2- The search of the appellant and his Ford yielded $20,320 in cash, a pistol with an
extended magazine, and two cell phones.
Detective Kevin Davis oversaw the search of the appellant’s residence in Chesterfield.
The police found boxes for two firearms, $85,000 in cash, and plastic baggies containing a
powdery residue. The baggies were under the false bottom of a drink-mix container.
Detective R. Hughes oversaw the search of the Richmond apartment. Police found
numerous items there that connected the appellant to the apartment. Evidence seized from the
apartment included the appellant’s firearms, drug packaging paraphernalia, and a significant
quantity of four different controlled substances—fentanyl, methamphetamine, cocaine, and
psilocybin.
Detective Sprouse testified as an expert about the drugs and paraphernalia found in the
Richmond apartment. Sprouse provided specific testimony about the quantities and values of the
various drugs, indicating that together, they had a street value of up to about $75,000. He opined
that the combination and quantities of different drugs found in the Richmond apartment were
inconsistent with personal use “by a lot” and “strongly support[ed]” that the appellant was a
“high level narcotic[s] trafficker.” The detective also noted the lack of food or a bed in the
apartment, concluding these facts were “indicative” that the apartment was “for th[e] sole
purpose of dealing drugs out of, or staying . . . temporarily, not living . . . comfortably.”
The appellant testified in his defense. He denied that the drugs in the Richmond
apartment were his. He claimed that he had dated the apartment’s lessee and stored some of his
belongings and had packages delivered there due to thefts from his Chesterfield residence. He
suggested that his two-year relationship with the lessee had ended and he did not have access to
the apartment during the time frame when the police surveilled and searched it. The appellant
asserted that he continued to go to the Richmond apartment building for packages he had
-3- delivered to that address. He further asserted that he possessed large sums of cash due to work
he did for his former stepfather, Preston Brown, in the man’s used-car and nightclub businesses.
The jury found the appellant guilty of the four counts of possessing different drugs with
intent to distribute and the four related charges of possessing a firearm while in possession of
each of those controlled substances with intent to distribute. The appellant was sentenced to one
hundred years of incarceration with sixty-five years suspended.
II. Impeachment Evidence and Post-Trial Motion
On February 23, 2022, the day after the appellant was convicted of the 2020 drug
offenses, the prosecutor notified defense counsel of impeaching evidence about Detective
Sprouse, the Commonwealth’s primary witness. That evidence involved Sprouse’s addition of
information to several already-issued search warrants in an unrelated drug case. That behavior
took place less than a week before the appellant’s trial.
In response, defense counsel made a motion to set aside the verdict and for a new trial.
The evidence at the hearing on the motion established the relevant details surrounding Detective
Sprouse’s involvement in the appellant’s case and the unrelated matter involving the altered
search warrants.
Detective Sprouse was the affiant for the three 2020 warrants in the appellant’s case,
although other officers assisted him with the execution of those warrants. On Monday, February
14, 2022, about a week before the appellant’s Richmond drug trial, Detective Sprouse applied for
seven search warrants in the relevant unrelated drug case. The supporting affidavits in the
unrelated case contained all necessary information, but the warrants themselves were blank in the
section for describing the “property, objects and/or persons” to be “searched for.” In other
words, while the affidavits were clear, the warrants did not indicate that the items sought were
drugs, and the space for that information was blank. The magistrate signed the incomplete
-4- search warrants without noticing the omissions. Two days later, on Wednesday, February 16,
2022, officers executed the search warrants in the unrelated case, found drugs, and made arrests.
On Thursday or Friday, February 17 or 18, 2022, Detective Sprouse noticed that the
listing of the subject items (drugs) was missing from those warrants. Once he discovered the
problem, Sprouse used a search warrant template and a printer to insert the missing information.
The search warrant returns were then filed in the Chesterfield and Richmond Circuit Courts.
On Thursday, February 17 (the same day or the day before Detective Sprouse altered the
unrelated warrants), the prosecutor in the appellant’s case spoke to Sprouse for the final time in
preparation for the appellant’s February 22 trial. During that conversation, which lasted about
fifty minutes, the prosecutor asked whether the detective had any information that might affect
his credibility. Detective Sprouse denied that he did. At no time between that conversation and
when Sprouse testified at trial the following week did he notify the prosecutor that he altered the
unrelated search warrants or filed the returns for the altered warrants in the circuit courts.3
On Tuesday, February 22, 2022, the appellant was tried and convicted of the instant
offenses in the Richmond Circuit Court. The prosecutor presented both lay and expert testimony
from Detective Sprouse, whom the prosecutor described as “the lead detective” in the drug
investigation.
Also on February 22, the Chesterfield County magistrate “became aware of the
incomplete warrants” issued in the unrelated case the previous week and notified the police. On
February 23, the day following the appellant’s trial, Sergeants Ballentine and McLaughlin met
with Detective Sprouse and learned that “information had been added” to the warrants after the
magistrate issued them. Sprouse admitted “he had changed the originals and added” information
3 Detective Sprouse filed the Richmond altered-warrant return on the morning of the appellant’s trial on Tuesday, February 22. Another officer filed the Chesterfield altered-warrant returns that morning at Detective Sprouse’s request. -5- to each warrant regarding only the “items to be searched for.” He told the sergeants, “I thought I
was correcting a clerical error.” They responded that “this [was] a bigger problem,” and Sprouse
“broke down in tears.”
Later that same day—the day after the appellant’s trial—the Richmond prosecutor
notified defense counsel in the appellant’s case of Sprouse’s actions in the unrelated case.4
Around the same time, Sprouse was placed on administrative leave.
Sergeant Ballentine, before testifying at the appellant’s post-trial motion hearing,
reviewed the evidence in the unrelated case and determined that the appellant was not involved
in that case. Ballentine testified that Sprouse had a “stellar” reputation for truthfulness and
veracity and that this reputation did not change based on his alteration of the search warrants in
the unrelated case. Ballentine admitted seeing the statement the police chief issued—that the
detective turned “a simple mistake” into “a profound credibility challenge.”5 He testified,
however, that he believed Sprouse merely “made a mistake” that “d[id] not speak to his
credibility.” Ballentine confirmed that Sprouse did not put false information into the warrants
and added only information contained in the affidavits that had not also been inserted into the
appropriate blanks on the warrants.
4 As a result of Detective Sprouse’s addition of information to the unrelated warrants, the people arrested based on the drugs found while executing those warrants were released from jail. At the time of the hearing on the appellant’s motion for a new trial, Sprouse was no longer employed by the department. 5 The parties stipulated regarding statements issued by Chief of Police Colonel Jeffrey Katz and Chesterfield Commonwealth’s Attorney Stacey Davenport after information surfaced about Sprouse’s alteration of the warrants in the unrelated case. Colonel Katz’s social-media post characterized Sprouse’s actions as not only “a profound credibility challenge” but also “potentially illegal.” An email authored by Davenport conveyed that Sprouse’s actions “cause[d] great concern about his truth and veracity as a witness in criminal cases” and that her office would be “review[ing] any and all [such] cases.” -6- The trial court denied the appellant’s post-trial motion. It held first that knowledge of the
impeachment evidence was not imputed to the Richmond prosecutor because Chesterfield
Detective Sprouse was employed in a different jurisdiction and did not reveal the information
before trial when specifically asked. Second, the court held that there was no “reasonable
probability” that disclosure would have led to a different result at trial. It found the
impeachment value was low due to the lack of a temporal connection between Sprouse’s 2022
alteration of the unrelated warrants and his 2020 investigation of the appellant. It also reasoned
that the detective’s testimony “primarily just plac[ed]” the appellant at the Richmond apartment,
which was “clearly . . . established anyway” because of his possessions found in the apartment.
Finally, the court stated that it did not have “any loss of confidence in the outcome” of the trial
because “[t]he cumulative impact of all of the evidence was too overwhelming.”
ANALYSIS
The appellant raises two distinct challenges on appeal. First, he contests the sufficiency
of the evidence to prove he possessed the illegal drugs. Second, he argues that the trial court
erred by denying his post-trial motion challenging late disclosure of impeachment evidence.
I. Sufficiency of the Evidence
The appellant contends that the evidence was insufficient to prove he possessed the various
illegal drugs found in the Richmond apartment.
In reviewing the sufficiency of the evidence on appeal, this Court views the evidence and all
reasonable inferences flowing from it in the light most favorable to the Commonwealth, the
prevailing party at trial. See Bagley v. Commonwealth, 73 Va. App. 1, 26 (2021). To do so, we
“discard the evidence of the accused in conflict with that of the Commonwealth.” Id. (quoting
Cooper v. Commonwealth, 54 Va. App. 558, 562 (2009)). We will not disturb the jury’s judgment
unless it is “plainly wrong or without evidence to support it.” See Code § 8.01-680. “If there is
-7- evidence to support the convictions, the reviewing court is not permitted to substitute its own
judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the
trial.” Commonwealth v. Perkins, 295 Va. 323, 327-28 (2018) (per curiam) (quoting Courtney v.
Commonwealth, 281 Va. 363, 368 (2011)). In conducting this review, the “appellate court does not
‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023) (emphasis added) (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). Instead, the “relevant question is, after reviewing the
evidence in the light most favorable to the prosecution, whether any rational trier of fact could have
found the essential elements of the crime[s] beyond a reasonable doubt.” Id. (quoting Sullivan v.
Commonwealth, 280 Va. 672, 676 (2010)).
It is also the function of the trier of fact, in this case the jury, to “determin[e] the credibility
of the witnesses and the weight afforded the testimony of those witnesses.” Raspberry v.
Commonwealth, 71 Va. App. 19, 29 (2019) (quoting Miller v. Commonwealth, 64 Va. App. 527,
536 (2015)). In conducting such evaluations, the fact finder is “free to believe or disbelieve, in part
or in whole, the testimony of any witness.” Cornell v. Commonwealth, 76 Va. App. 17, 31 (2022)
(quoting Bazemore v. Commonwealth, 42 Va. App. 203, 213 (2004) (en banc)). “This Court does
not revisit these determinations on appeal unless reasonable people, ‘after weighing the evidence
and drawing all just inferences therefrom, could reach [only the contrary] conclusion.’” Davis v.
Commonwealth, 79 Va. App. 123, 148 (2023) (alteration in original) (quoting Towler v.
Commonwealth, 59 Va. App. 284, 292 (2011)). Finally, evaluating the sufficiency of the evidence
“does not distinguish between direct and circumstantial evidence, as the fact finder . . . ‘is entitled to
consider all of the evidence, without distinction, in reaching its determination.’” Bagley, 73
Va. App. at 26-27 (quoting Commonwealth v. Moseley, 293 Va. 455, 463 (2017)).
-8- In this case, a large quantity of drugs—fentanyl, methamphetamine, cocaine, and
psilocybin—was found in the Richmond apartment. The drugs were in a locked safe and two
containers with false bottoms (a drink-mix canister and a paint can). The appellant contends the
Commonwealth did not prove that he possessed these drugs.
The legal parameters regarding the possession of illegal drugs are clear. Possession of
contraband may be actual or constructive. Id. at 27 (citing Smallwood v. Commonwealth, 278 Va.
625, 629-30 (2009)). Constructive possession can be established by “acts, statements, or conduct of
the accused or other facts or circumstances which tend to show that [he] was aware of both the
presence and character of the substance and that it was subject to his dominion and control.” Id.
(alteration in original) (quoting Wilson v. Commonwealth, 272 Va. 19, 27 (2006)). Although mere
“proximity to [drugs] or ownership or occupancy of the premises where [drugs are] found” is not
enough to prove constructive possession, “these are circumstances probative of possession and may
be considered as factors in determining whether the defendant possessed” the drugs. See Rawls v.
Commonwealth, 272 Va. 334, 350 (2006). “Ultimately, ‘the issue [of what constitutes constructive
possession] is largely a factual [question]’ left to the trier of fact, not the appellate court.” Bagley,
73 Va. App. at 28 (first alteration in original) (quoting Smallwood, 278 Va. at 630).
We hold that the evidence admitted at trial was sufficient under the applicable legal standard
to prove the appellant constructively possessed the drugs in the Richmond apartment.
That evidence proved that the appellant accessed the key-controlled door to the Richmond
apartment building on several occasions and was seen at least a few times going in and out of
apartment 104. At least twice when he left the apartment, he turned toward the handle and appeared
to lock the door behind him. Although a second man was present on some of those occasions, the
appellant was the person who turned toward the door handle when departing, and no evidence
suggested that the other man had independent access to the apartment.
-9- Further, although the apartment was leased to someone else, numerous personal items
bearing the appellant’s name were found inside it, including his high school diploma from 2005, a
skydiving certificate dated 2019, a laptop computer, and several pieces of mail. The mail was
addressed to him at various other locations on dates spanning seven years to a mere five weeks
before the April 2020 search. An empty box addressed to the appellant at the Richmond apartment
was found on the kitchen counter near the gelatin capsules and pill press found in a cabinet. Two
empty boxes addressed in the same fashion were found in the master bedroom closet near two
presses used to compact drug material. Beside the presses in the closet were a firearm and the case
for a second firearm, both of which the appellant had purchased about six months before the search.
See Brown v. Commonwealth, 15 Va. App. 1, 9 (1992) (en banc) (“[T]he finder of fact may infer
from the value of [an item] found on premises . . . that it is unlikely anyone who is a transient would
leave a thing of great value in a place not under his dominion and control.”). The only items found
in the apartment linking anyone else to it were a receipt, in the name of Ferraud Francis for the
rental of a local storage unit, and some women’s shoes.
Additional evidence supporting a finding that the appellant constructively possessed the
drugs was the large amount of cash and firearm-related evidence on his person and in his car, as
well as in his Chesterfield residence. The appellant had $7,320 on his person, as well as a Glock
firearm with an extended magazine in the car door pocket beside him, and an additional $13,000 in
the center console. At his Chesterfield residence, he had $85,000 in cash and the boxes for two
additional firearms. See Brown v. Commonwealth, 68 Va. App. 517, 527 (2018) (observing that
“[t]he relationship between the distribution of controlled substances . . . and the possession and use
of dangerous weapons is . . . well recognized” (second alteration in original) (quoting Logan v.
Commonwealth, 19 Va. App. 437, 445 (1994) (en banc))). Finally, a false-bottomed container
found in his Chesterfield residence was similar to the two false-bottomed containers with the large
- 10 - quantities of drugs found in the Richmond apartment, providing further circumstantial evidence that
he was aware of the presence of that contraband.
The appellant points to his claim that he no longer had independent access to the Richmond
apartment and came to the building only to get his mail from outside it. He further alleges that he
had reported the firearms in the apartment closet stolen. Finally, he suggests that he had access to
large amounts of cash due to work he performed for Brown. The jury, however, was entitled to
accept the Commonwealth’s evidence and conclude that the specific testimony of the appellant and
Brown, which was not supported by a police report or wage records, was fabricated to “conceal [the
appellant’s] guilt.” See Armstead v. Commonwealth, 56 Va. App. 569, 581 (2010) (quoting
Coleman v. Commonwealth, 52 Va. App. 19, 25 (2008)); accord Rawls, 272 Va. at 350. Given the
appellant’s strong ties to the Richmond apartment, as established by the items found there bearing
his name and the presence of minimal evidence linking anyone else to it, the fact that the lease was
not in his name did not prevent a finding that he constructively possessed, at least jointly, the huge
quantity of drugs found there. See Smallwood, 278 Va. at 630 (observing that the possession of
contraband need not be exclusive to support a conviction).
The record supports the jury’s findings that the appellant was aware of the presence and
character of the narcotics and that they were subject to his dominion and control. The evidence is
therefore sufficient to prove that the appellant constructively possessed the drugs found in the
Richmond apartment.
II. Post-Trial Motion
The appellant contends that the trial court erred by denying his motion to set aside the
verdict and for a new trial. This is so, he suggests, because Detective Sprouse’s alteration of the
unrelated search warrants, along with the detective’s subsequent filing of the altered returns for
those warrants, was material impeaching information to which the appellant was entitled pretrial.
- 11 - On review of an exculpatory evidence claim, “the burden is on [the] appellant to show
that the trial court erred.” Gagelonia v. Commonwealth, 52 Va. App. 99, 112 (2008) (quoting
Galbraith v. Commonwealth, 18 Va. App. 734, 739 (1994)). This Court “review[s] the trial
court’s findings of historical fact only for ‘clear error’” but considers its “application of defined
legal standards to the particular facts of [the] case” de novo. Castillo v. Commonwealth, 70
Va. App. 394, 466 (2019) (quoting Doss v. Commonwealth, 59 Va. App. 435, 455 (2012)).
The current challenge must be evaluated in light of well-established legal precedent. In
Brady v. Maryland, 373 U.S. 83 (1963), and subsequent decisions, the United States Supreme
Court held that the prosecution must disclose to the defendant “all favorable evidence material to
his guilt or punishment.” Garnett v. Commonwealth, 275 Va. 397, 406 (2008). Establishing a
Brady violation requires proof of three components. Workman v. Commonwealth, 272 Va. 633,
644 (2006). First, “[t]he evidence not disclosed . . . ‘must be favorable to the accused, either
because it is exculpatory[]’ or because it may be used for impeachment.” Id. (quoting Strickler
v. Greene, 527 U.S. 263, 281-82 (1999)). Second, the evidence “must have been suppressed by
the [Commonwealth], either willfully or inadvertently, thereby denying [the] defendant its use at
trial.” Mercer v. Commonwealth, 66 Va. App. 139, 146 (2016). Third, the nondisclosure must
have prejudiced the defendant. Id. A failure by the defendant, in the circuit court, to establish
any one of these three components requires a denial of the claim. See Commonwealth v. Tuma,
285 Va. 629, 635 (2013).
The appellant challenges the trial court’s rulings that he did not satisfy the second and
third components of the Brady test. We hold the appellant failed to establish prejudice under the
third component and resolve the appeal on this basis alone.6
6 In light of this Court’s duty “to decide cases ‘on the best and narrowest ground available,’ we offer no opinion on” the other two components of the Brady analysis because “[t]he absence of prejudice, by itself, defeats [the appellant’s] claim and renders all other issues - 12 - The linchpin in determining prejudice under the third component is whether the absent
evidence was “material.” Hicks v. Dir., Dep’t of Corr., 289 Va. 288, 299 (2015). Evidence is
“material” under Brady if “there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different.” Tuma, 285 Va. at 634-35
(quoting Smith v. Cain, 565 U.S. 73, 75 (2012)). The United States Supreme Court has
“stressed” that “‘[t]he adjective [“reasonable”] is important.’” Strickler, 527 U.S. at 289
(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). A reasonable probability does not mean
that “the defendant would more likely than not have received a different verdict with the
evidence.” Kyles, 514 U.S. at 434; see Garnett, 275 Va. at 406. Instead, the question is whether
in the absence of the evidence, the defendant “received a fair trial, understood as a trial resulting
in a verdict worthy of confidence.” Hicks, 289 Va. at 299 (quoting Workman, 272 Va. at 645).
“The mere possibility that an item of undisclosed information might have helped the defense[] or
. . . affected the outcome of the trial[] does not establish ‘materiality’ in the constitutional sense.”
Johnson v. Commonwealth, 53 Va. App. 79, 106 (2008) (emphasis added) (quoting United States
v. Agurs, 427 U.S. 97, 109-10 (1976)).
Importantly, for purposes of a Brady analysis, “materiality is not a sufficiency of the
evidence test.” Workman, 272 Va. at 645. It does not require proof that, “after discounting the
inculpatory evidence in light of the undisclosed evidence, there would not have been enough left
to convict.” Id. (quoting Kyles, 514 U.S. at 434-35). Instead, “the court must take into
consideration the use the defense may properly make of the non-disclosed information.” Bly v.
analytically superfluous.” See Deville v. Commonwealth, 47 Va. App. 754, 758 (2006) (citation omitted) (quoting Logan v. Commonwealth, 47 Va. App. 168, 171 n.3 (2005) (en banc)). For similar reasons, in analyzing the prejudice/materiality component, we do not opine on the admissibility of the impeachment evidence to attack Detective Sprouse’s credibility. We simply assume it was admissible for that purpose. See Soering v. Deeds, 255 Va. 457, 464-65 (1998) (assuming evidence was admissible and holding it was not material for Brady purposes). - 13 - Commonwealth, 280 Va. 656, 663 (2010); see Kyles, 514 U.S. at 436 (noting that “suppressed
evidence [must be] considered collectively, not item by item”). “At the heart of this inquiry is a
determination whether the evidence favorable to the defendant could reasonably be considered as
placing the entire case in such a different light that confidence in the verdict is undermined.”
Lovitt v. Warden, 266 Va. 216, 244 (2003); see Kyles, 514 U.S. at 435.
Here, the evidence supports the trial court’s finding that Detective Sprouse, in an
unrelated drug case, transferred information contained in the affidavits into the appropriate
blanks on the search warrants that had already been issued. That information (the thing to be
searched for—drugs) was accurate and had simply been inadvertently omitted from the unrelated
warrants. The trial court therefore did not err by finding that the impeachment value of the
detective’s actions regarding the unrelated warrants was minimal. That evidence, at best, would
have permitted general impeachment of his credibility at trial.7
The appellant, relying in part on Bly v. Commonwealth, 280 Va. 656 (2010), suggests that
the evidence impeaching Detective Sprouse could have cast doubt on the detective’s claim that
the appellant had access to the Richmond apartment during the time at issue.8 Bly, however, is
readily distinguishable. Here, the prosecution’s case against the appellant might have been
weaker if Sprouse’s credibility had been attacked with the undisclosed information, but it would
not have been “markedly weaker.” See Kyles, 514 U.S. at 441. Unlike the Brady evidence in
this case, the Brady evidence in Bly, 280 Va. at 658-60, related directly to the crime for which
the defendant was on trial, contradicting the key witness on his identification of the defendant as
7 The appellant does not challenge the issuance of the warrants executed in his case. He argues only that he was entitled to explore the detective’s credibility in front of the jury. 8 The appellant does not specifically challenge the impact of the impeachment of Sprouse on the testimony the detective gave as an expert. As a result, we do not consider any possible impact on appeal. See Rules 5A:18, 5A:20(e). - 14 - the perpetrator. Accord Kyles, 514 U.S. at 441-44, 454; Workman, 272 Va. at 646-50. As a
result, the potential impact of the impeachment evidence in the appellant’s case was slight by
comparison. See Lemons v. Commonwealth, 18 Va. App. 617, 620 (1994) (holding that a mere
“lessen[ing of] confidence in the outcome” does not meet the materiality standard).
Further, even if Detective Sprouse had been impeached at trial based on his alteration of
the unrelated warrants, a great deal of additional evidence in the appellant’s case proved what
was established by the most important pieces of the detective’s testimony. First, three other
witnesses tied the appellant to the building—Officer Hopkins; one of the appellant’s witnesses,
Quinton Claiborne; and the appellant himself. Second, tying the appellant to the specific
apartment were both the appellant’s unchallenged testimony that he dated the leaseholder for two
years and the significant number of his belongings found inside it pursuant to the unchallenged
search warrant executed by officers other than Detective Sprouse. In fact, the appellant admitted
he had slept at the apartment. He also admitted storing his belongings and receiving mail there.
Third, although the appellant claimed he no longer had access to the inside of the
apartment during the period of police surveillance, a significant number of his personal
belongings remained there with the illegal drugs and distribution material. See Cornell, 76
Va. App. at 31 (recognizing that the fact finder can credit parts of a witness’s testimony and reject
others). Most importantly, one of those items tied the appellant to the inside of the apartment
roughly contemporaneously with the search. That item was a packet of Amtrak employee
benefits information addressed to the appellant at his Chesterfield address and dated March 11,
2020, just five weeks before the police search of the apartment. Although the appellant testified
at trial, he did not deny transporting that piece of mail from his Chesterfield residence to the
Richmond apartment or attempt to provide any other theory, in testimony or argument, regarding
how it might have arrived there. Separate from Detective Sprouse’s surveillance and related
- 15 - testimony, therefore, the physical evidence in the Richmond apartment supported a finding that
the appellant still in fact had access to the apartment’s interior. See Strickler, 527 U.S. at 293
(recognizing “considerable . . . physical evidence linking” the defendant to the crime).
Other physical evidence available to the jury also connected the appellant to the
Richmond apartment and the large quantity and variety of drugs and distribution paraphernalia
found inside. That evidence included the amount of money he had on his person, in his car, and
at his Chesterfield residence—$105,000 in cash. Although the appellant presented testimony
that he earned significant sums from work for his former stepfather and that he carried cash with
which to buy used cars for resale, the only documentation of earnings he produced concerned his
employment with Amtrak. Those documents showed income of about $51,000 in 2018 and
$43,000 in 2019. Further, the appellant testified that he was the “sole” financial provider for his
three children. All of these facts, taken together, made it far less credible that he had amassed,
from legitimate employment, the $105,000 in cash he had in his actual and constructive
possession at the time of the searches.
Based on this record, the evidence impeaching Detective Sprouse’s credibility on minor
issues in an unrelated case did not establish a “reasonable probability” of a different outcome for
the appellant. See Tuma, 285 Va. at 634-35 (quoting Smith, 565 U.S. at 75). The discovery of
that impeachment evidence simply does not “undermine[] confidence in the outcome of the
trial.” See Kyles, 514 U.S. at 434 (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).9
9 The appellant suggests that he might have chosen not to testify if he had known about Sprouse’s misconduct prior to trial and that this is a factor for consideration in the materiality inquiry. Defense counsel, however, did not make this specific argument in the trial court. As a result, we do not consider it on appeal. See Rule 5A:18; Bethea v. Commonwealth, 297 Va. 730, 743-44 (2019). See generally Mercer, 66 Va. App. at 149 (recognizing that although “a different trial strategy may, with hindsight, possibly have been more efficacious, the mere possibility that an alternate trial strategy might produce a more beneficial result is not the proper test for a Brady violation”), quoted with approval in Church v. Commonwealth, 71 Va. App. 107, 118-19 (2019). - 16 - Consequently, we hold the appellant did not meet his burden of proving that the evidence
impeaching Detective Sprouse was material and therefore prejudicial in the sense required to
establish a Brady violation.
CONCLUSION
The evidence was sufficient to prove the appellant constructively possessed the drugs in
the Richmond apartment. Further, the appellant failed to prove that the impeachment evidence
about Detective Sprouse was material and prejudicial under Brady. As a result, we affirm the
appellant’s convictions.
Affirmed.
- 17 -