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 
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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 

 1Appellant 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. 
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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 
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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 notes2

 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 

 

 2The notes were not made an exhibit; however, on appellant's 

motion, the trial court specifically ordered that they were part 

of the record. 
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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 
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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 
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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.