COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, McClanahan and Senior Judge Bumgardner 

Argued at Richmond, Virginia 

GREGORY L. GAGELONIA, A/K/A 

 JEROME WHITE 

 OPINION BY 

v. Record No. 2343-06-2 JUDGE ROBERT J. HUMPHREYS 

 JUNE 3, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

James E. Kulp, Judge Designate 

Anthony G. Spencer for appellant. 

Richard B. Smith, Special Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

Gregory Gagelonia, a/k/a Jerome White (“White”), appeals his convictions of possession 

with intent to distribute more than five pounds of marijuana, transporting controlled substances 

into the Commonwealth, and possession of a firearm while in possession of a controlled 

substance with the intent to distribute, in violation of Code §§ 18.2-248.1, 18.2-248.01, and 

18.2-308.4, respectively. White argues that the Commonwealth withheld exculpatory evidence, 

in violation of Brady v. Maryland, 373 U.S. 83 (1963), and asks us to reverse his convictions and 

order a new trial. For the reasons that follow, we affirm his convictions. 

BACKGROUND

A. “The Delivery”

In mid-July of 2005, United States Postal Inspector Evelyn Cross (“Cross”) received 

information that a suspicious package had arrived in Richmond’s airmail facility from Peoria, 

Arizona. The package listed the sender’s name as “Karen Russell,” and the recipient’s name and 
- 2 -

 

address as “Simone Russell, 2807 Hartman Street,” an address in Henrico County. Cross went to 

the facility and took possession of the package, which weighed 23 pounds, 4.4 ounces, and had 

an expected delivery date of July 16, 2005. Recognizing the characteristics of illegal drug 

packaging, Cross contacted a Henrico County canine unit to further inspect the package. Based 

on the canine unit’s results, Cross obtained a federal search warrant for the package. When 

Cross opened the package, she found a ball of green leafy material wrapped in hardened 

Styrofoam and cellophane. She again contacted the Henrico police and, together, they made 

arrangements to conduct a “controlled delivery” of the material, which they repackaged using a 

similar box and the original packing labels. Henrico police also obtained a search warrant for 

2807 Hartman Street, the intended destination of the package. 

On July 16, 2005, Henrico Police Investigator Shawn Diasperra (“Diasperra”) of the 

Technical Support Unit arrived in the area of 2807 Hartman Street at 7:00 a.m. and began video 

surveillance of the home. Investigator Paul Ronson (“Ronson”), the lead investigator in the case, 

arrived slightly prior to 8:00 a.m., but did not begin directly watching the house until 

approximately 10:00 a.m. 

At some point in the morning, Diasperra observed a postal carrier drive by 2807 Hartman 

Street without stopping. White, who had previously been sitting on the stoop of the house, got 

into a gray Pontiac and began driving in the same direction as the postal vehicle. After White 

had been gone “three or four minutes,” he returned to the house. The mail carrier verified that a 

man had approached him and asked if he had a package for 2807 Hartman Street, but was unable 

to identify the man.1

 Approximately twenty to thirty minutes after White returned, Cross drove 

past the house in another mail truck without stopping. Cross noticed White sitting on the stoop, 

1

 At trial, the mail carrier testified that he did not see the man who had approached him 

on his route in the courtroom. 
- 3 -

and opined that White’s behavior was consistent with “a person expecting a package.” Cross 

continued down the street, turned around, parked the vehicle, retrieved the package, and 

approached White. White remarked that Cross was not “the regular carrier,” and Cross informed 

White that the package was addressed to “Ms. Russell.” White nodded, and signed the delivery 

receipt as “J. Russell.” Cross then returned to her vehicle and returned to the post office. White 

entered the house with the package a few minutes later. 

Ronson and the “entry team” entered the house at 11:19 a.m. and executed the search 

warrant. The entry team found the package unopened in the front room of the house and secured 

White, who denied any knowledge of the contents of the package. Also present in the house 

were Canice Butcher (“Butcher”) and her four-year-old child. 

White initially identified himself as Gregory Gagelonia (“Gagelonia”) and said he was a 

resident of the house, but was unable to provide supporting identification. He then said that he 

was at the house waiting for someone named “Todd,” and was helping with the mail, “because 

the female that was at the house was pregnant at the time.” White also said that he had been 

living on Dove Street in Richmond until he had been shot there, and had since moved to a 

residential hotel. A search of White revealed $859 in cash, a cell phone, and a small Bible 

containing an address in Texas. A subsequent search of White’s car revealed a .357 revolver, 

medical documents, and mailing receipts, all bearing Gagelonia’s name. White acknowledged 

ownership of the gun. 

Todd Bradley (“Bradley”) lived at 2807 Hartman Street with Butcher, his girlfriend, at 

the time of the delivery. There was no resident of the house named “Russell.” White, whom 

Bradley knew as “Tony,” had asked Bradley if he could use his address to receive packages. 

Bradley agreed, and White had received at least three packages at Bradley’s address during the 

previous one to two months, but Bradley had not known what was in the packages. White had 
- 4 -

called Bradley the morning of the delivery and informed him that a package would be arriving 

that day, but did not tell him what was in that package. Bradley had purchased marijuana from 

White in the past, which they had smoked together. 

Ronson and his team contacted Bradley after they executed the search warrant at his 

house and told him to come home. When he arrived, Bradley denied knowledge of the contents 

of the package and told police he only knew that defendant was expecting a package. 

Bradley told Ronson that he had seen White at a hotel in Chesterfield County about two 

weeks before the delivery, and brought Ronson to this hotel. Ronson went to Room 314 of the 

Inn Town Suites in Chesterfield County later that afternoon based on what he had learned from 

Bradley. There, he encountered Debbie Fletcher (“Fletcher”), the renter of the Pontiac, and 

Fletcher and the defendant’s child. After speaking with Fletcher, Ronson searched the hotel 

room, in which he found $1,000 in cash, numerous shipping documents, and “O sheets,” or an 

accounting ledger used to represent the inflow-outflow of drugs and money. Police also found a 

digital scale in the room that contained marijuana residue. White admitted that he had purchased 

the scale because he thought it was a “good deal.” White also admitted to Ronson that he had 

been staying in Room 314 of the Inn Town Suites, but made no statements regarding the 

documents found in the room. 

Postal Inspector Cross later assembled a postal tracking history for 2807 Hartman Street, 

and discovered that five packages from Texas had been delivered to that address in May-June 

2005. The packages weighed 11 pounds 3 ounces, 1 pound 8 ounces, 9 pounds 14 ounces, 35 

pounds 7 ounces, and 15 pounds 13 ounces, respectively. 

 An analysis at the Department of Forensic Science revealed that the “green leafy” 

substance delivered in the package on July 16, 2005 was 190.97 ounces of marijuana. The gun 

found in the Pontiac was in working condition. 
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B. Preliminary Hearing

The General District Court of Henrico County (“GDC”) held a preliminary hearing on 

December 7, 2005 styled Commonwealth of Virginia v. Gregory Leonard Gagelonia. Ronson 

was the only witness, and over White’s objections, was allowed to testify to a number of facts 

that were not within his personal knowledge.2

 Among other things, Ronson testified that White 

had gotten into his car during the surveillance, drove after the mail carrier’s truck, and had a 

conversation with the mail carrier. The GDC certified charges for possession with intent to 

distribute, transporting a controlled substance into the Commonwealth, and possessing a firearm 

while attempting to distribute marijuana. 

C. Trial

 On January 9, 2006, a grand jury returned indictments based on the charges certified by 

the GDC. On April 11, 2006, White appeared for a bench trial in the Circuit Court of Henrico 

County (“trial court”). 

 In addition to presenting the evidence outlined above, the Commonwealth also asked the 

court to qualify Ronson as an expert in illegal drug distribution, which it did. Ronson then 

opined that the Styrofoam and cellophane materials surrounding the marijuana in the box were 

intended to disguise the scent of the marijuana during shipping. Ronson also testified that in his 

opinion, the amount of marijuana in the box was inconsistent with personal use and would have a 

street value of over $61,000. 

 2

 The general district court judge overruled White’s hearsay objections, stating that it 

would allow the evidence “only for probable cause purposes.” In passing, we note the plain 

language of Code § 19.2-183(B) (“At the [preliminary] hearing the judge shall, in the presence of 

the accused, hear testimony presented for and against the accused in accordance with the rules of 

evidence applicable to criminal trials in this Commonwealth.” (emphasis added)), and we are 

unaware of any “probable cause” exception to the rule barring the admissibility of hearsay 

evidence. 
- 6 -

 

Bradley also testified as a witness against White, and acknowledged that he had been 

charged with conspiracy to distribute marijuana as a result of the delivery on July 16, but stated 

that the Commonwealth had not made him any promises of leniency. During cross-examination, 

White’s counsel asked him if he expected to get any favorable treatment with his charge as a 

result of his testimony. Bradley responded: “Well, I leave that to my attorney to advise me. I 

hope for a fair trial, and my attorney is going to do the rest.”3

 

White then took the stand on his own behalf and testified that his real name is Jerome 

Leslie White, but he had given the police the name of an old friend, “Greg Gagelonia,” because 

he had once been fingerprinted while using that alias. He admitted that he used to live in Texas, 

but denied knowing anyone in Peoria, Arizona. White also testified that when Cross had 

delivered the package, he had “signed what she told me to sign. She said Russell, so I signed 

Russell.” He said he then went inside to tell Butcher about the box, and after she told him that 

no one named Russell lived there, he had intended to give the box back to the mail carrier, but 

the police came in before he could act. White also denied having admitted that the firearm was 

his. 

In finding White guilty as charged, the trial court found, inter alia: 

 The Court accepts the testimony of the Commonwealth’s 

witnesses, and the Court rejects the testimony of the defendant. 

 The evidence in the Court’s view is clear. The defendant is 

using a fake address or an address where he doesn’t live to get 

marijuana. 

 The Court accepts the testimony of Mr. Bradley, that the 

defendant called him on the morning of July the 16th and said, I’m 

3

 Bradley’s case had been continued three times in GDC, and on one of those occasions, 

the continuance had been granted by joint motion of the defense and Commonwealth. The GDC 

granted two of these continuances upon motions made immediately after White’s case had been 

continued. On April 12, 2006, the day after White’s trial, the Commonwealth moved to nolle 

prosequi Bradley’s case in the GDC. Bradley’s case had been pending for almost ten months. 
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expecting a package. All of his actions seem to indicate that is 

precisely what he is doing. . . . 

 . . . [T]he Court did not hear Ms. Cross say to the 

defendant, I want you to sign this in the name of Ms. Russell. She 

simply said the package was for Ms. Russell. The defendant takes 

it upon himself to sign somebody’s name that he doesn’t know 

whether they live there or not. . . . 

 I think that this is an indication that the defendant knew 

precisely what was in the package. He knew that it was marijuana. 

* * * * * * * 

 . . . [D]rugs are a commodity of significant value, unlikely 

to be abandoned or callously left in an area. So the reasonable 

inference is the defendant has had packages delivered to him 

before. . . . 

 The Court believes the evidence [to which] Mr. Bradley 

testified, and the Court accepts the testimony, that he, the 

defendant had done this on several occasions in the past. . . . 

* * * * * * * 

 As to the indictment on transportation . . . [case law holds 

that] receiving a package in the mail [is] sufficient for a 

conviction. . . . There was sufficient evidence to find that the 

defendant participated as a principal in the second degree in 

transporting the drugs into the Commonwealth with the intent to 

distribute. 

 The evidence is that this . . . box originated in Arizona, 

came through the mail, and was to be delivered in Virginia. And 

the Court finds that is sufficient to show that the defendant was the 

one who was to receipt for the package [sic], he knew it was 

coming, that makes him a principal in the second degree. 

 The Court accepts the testimony of Investigator Ronson 

when he says that he advised the defendant that there was a firearm 

in the car, that the defendant admitted that it was his. Now the 

defendant says, it wasn’t mine, I never said that. The Court does 

not accept that testimony. 
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D. Post-Trial Motions

On May 31, 2006, prior to sentencing, the circuit court entered an order granting the 

defendant’s motion to substitute counsel. Through his new attorney, White filed a motion for the 

court to order the Commonwealth to produce the “videotaped surveillance in its entirety and the 

cell phone seized from the defendant for in camera inspection by the Court to determine whether 

the Commonwealth is in violation of Brady v. Maryland[, 373 U.S. 83 (1963),] and its progeny.” 

White filed a second motion on July 25, 2006, this time moving the court to vacate its 

judgment of guilt and order a new trial, appoint a special prosecutor on the grounds that the 

Commonwealth had withheld exculpatory evidence, and order the Henrico police to reveal all of 

its evidence files in White’s case. The motion referred to four categories of evidence that, if 

known, would resolve any questions of whether the Commonwealth had withheld exculpatory 

evidence in White’s case. First, White argued that his and Bradley’s cell phones, if produced, 

might show that White had not in fact called Bradley on the morning of the delivery, and would 

thus be exculpatory. White next noted that the five-hour videotape of the house before Inspector 

Cross made the delivery, if produced, might have shown that White in fact did not drive away 

from 2807 Hartman Street in pursuit of the mail carrier, and would thus be exculpatory. 

Additionally, he argued that the fact that the videotape and cell phones were missing was 

exculpatory in and of itself, because he would have been entitled to a favorable missing evidence 

inference at trial had he known about the missing evidence. Further, White referenced numerous 

inconsistencies between Ronson’s testimony at the preliminary hearing and at trial, as well as 

alleged falsehoods in his testimony, including his testimony at the preliminary hearing that he 

had seen White have a conversation with the mail carrier, when in fact he had not seen this 

happen. Finally, White speculated that Bradley had lied at trial about not expecting leniency in 
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exchange for his testimony and the Commonwealth should have notified him of the supposed 

agreement between Bradley and the Commonwealth. 

The trial court heard evidence and arguments on White’s post-trial motion on July 27, 

2006. At this hearing, Ronson testified that he had not placed White’s cell phone in evidence 

files, but had placed it in White’s personal property at the jail, and had written down the numbers 

he had seen on the telephone, which included White’s and Bradley’s. However, White 

introduced a certificate of analysis at the hearing indicating that Ronson had, in fact, submitted 

White’s cell phone to the Department of Forensic Science for testing on August 8, 2005, and that 

Ronson had received a certificate of analysis from the Department on October 31, 2005.4

 Also 

during this hearing, the Commonwealth’s attorney acknowledged that there had been a tape of 

the first five hours of surveillance before the controlled delivery in addition to the five-minute 

tape showing the delivery itself, but that it had been misplaced and could not be located, a fact he 

had not realized until a few days earlier. At the conclusion of the hearing, the trial court 

continued the case until August 17, 2006, and directed the Commonwealth’s attorney and 

investigating officer to meet with White’s counsel in the meantime and show him certain 

physical evidence. 

The parties returned to court on August 17, 2006 for argument and ruling on the Brady

motions, as well as for White’s sentencing. No additional evidence was submitted. The trial 

court denied White’s motion to set aside the conviction, stating: 

[T]he Court finds that the fact that . . . Ronson made 

several misstatements at the preliminary hearing, and these 

misstatements were not disclosed to [White]’s counsel, do not give 

rise to a Brady violation requiring a new trial. 

 4

 In fact, the Sheriff’s deputy at the Henrico County jail property room verified that 

White’s cell phone had never been placed into White’s personal property at the jail. 
- 10 -

 

 Most of the alleged misstatements, in the Court’s view, 

were mainly interpretations of evidence drawn by Detective 

Ronson. For example, Detective Ronson’s testimony that the 

defendant had a conversation with the postal carrier is a reasonable 

inference from the evidence. The testimony at trial was that when 

the postal carrier went by, the defendant got into an automobile 

and went in the direction of the postal carrier. 

 The postal carrier testified at trial that he had a 

conversation with someone about a package for the address where 

the defendant was on the porch, and that the defendant then 

returned to the porch shortly after he had gone in the direction of 

the postal carrier. The reasonable inference, in the Court’s view, is 

that it was the defendant who spoke to the postal carrier. 

 The Court is of the opinion that at trial when the postal 

carrier said . . . he didn’t see [White] in the courtroom, even 

though [he] was in the courtroom, . . . the postal carrier was simply 

mistaken. . . . 

* * * * * * *

 There were a number of incidents where Detective Ronson 

used a plural term when describing items of evidence when only 

one item existed. And again, the Court finds that these are not 

intentional falsehoods but merely misstatements. 

* * * * * * * 

 The Court finds that even if all of these misstatements by 

Detective Ronson had been brought out at trial, they would not 

have been sufficient to undermine the confidence in the outcome of 

the proceeding. . . . 

* * * * * * * 

 In the Court’s opinion, the testimony about the missing 

tape, . . . does not require the Court to grant a new trial to the 

defendant. 

White subsequently filed a motion asking the trial court to reconsider its ruling, which it 

denied. We then awarded White this appeal.5

 

5

 On September 13, 2006, White filed a motion asking the trial court to reconsider its 

denial of the motion that is the subject of the instant appeal. On November 8 and 9, 2006, after 
- 11 -

ANALYSIS

White argues on appeal, as he did in the trial court, that he should receive a new trial 

because the Commonwealth withheld exculpatory evidence in his case, in violation of Brady and 

its progeny. We disagree. 

When an exculpatory evidence claim is reviewed “[o]n appeal, the burden is on appellant 

to show that the trial court erred.” Galbraith v. Commonwealth, 18 Va. App. 734, 739, 446 

S.E.2d 633, 637 (1994). 

In Brady, the United States Supreme Court held that “the suppression by the prosecution 

of evidence favorable to an accused . . . violates due process where the evidence is material to 

either guilt or to punishment[.]” 373 U.S. at 87. Non-disclosure of evidence to the defense 

violates the Brady rule when the evidence is “(1) either directly exculpatory or [has] 

impeachment value, (2) suppressed by the government, and (3) material.” Lockhart v. 

Commonwealth, 34 Va. App. 329, 345, 542 S.E.2d 1, 8 (2001). “Stated differently, ‘the question 

is not whether the defendant would more likely than not have received a different verdict with 

the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a 

 

the 21-day period from August 18, 2006 had expired, White filed new motions to set aside the 

judgments, requesting a new trial and for the trial court to recuse itself. In these motions, White 

alleged the existence of additional, newly discovered exculpatory evidence in his case, including 

the fact that Fletcher had also faced charges in Chesterfield County that the Commonwealth had 

nolle prosequied in exchange for her testimony against White, and the results of a pending 

internal affairs investigation against Ronson. The trial court heard oral argument on these 

motions and denied them. This Court dismissed White’s petition for appeal on these motions 

under Rule 1:1, because more than twenty-one days had passed since the entry of the final order 

in the case, and the trial court accordingly lacked jurisdiction. See Jerome White, a/k/a Gregory 

L. Gagelonia v. Commonwealth, Record No. 2916-06-2 (Va. Ct. App. June 29, 2007). Although 

White mentions these events in his brief on the instant appeal, this Court specifically stated that 

in granting White’s petition for appeal it had not “considered (i) appellant’s motion to reconsider 

filed on September 13, 2006 . . . or (ii) appellant’s motions filed on November 8 and 9, 2006[.]” 

See Gregory L. Gagelonia, a/k/a Jerome White, Record No. 2343-06-2 (June 29, 2007 order 

granting petition for appeal in part). 
- 12 -

verdict worthy of confidence.’” Workman v. Commonwealth, 272 Va. 633, 645, 636 S.E.2d 

368, 374 (2006) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). 

“[I]f a Brady violation is established, [an appellate court] do[es] not engage in a harmless 

error review. Instead, a ‘constitutional error occurs, and the conviction must be reversed . . . if 

the evidence is material in the sense that its suppression undermines confidence in the outcome 

of the trial.’” Teleguz v. Commonwealth, 273 Va. 458, 488, 643 S.E.2d 708, 727 (2007) 

(quoting United States v. Bagley, 473 U.S. 667, 678 (1985)) (citations omitted). Exculpatory 

“information known to the police is information within the Commonwealth’s knowledge and the 

prosecutor is obliged to disclose regardless of the state of his actual knowledge.” Moreno v. 

Commonwealth, 10 Va. App. 408, 418, 392 S.E.2d 836, 842-43 (1990). However, no Brady

violation occurs ‘“if the evidence in question is available to the defendant from . . . sources 

[other than the Commonwealth].’” United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990) 

(quoting United States v. Davis, 787 F.2d 1501, 1505 (11thCir. 1986)). 

White asserts that four specific areas of exculpatory evidence exist. These are (1) the 

disappearance of White and Bradley’s cell phones from Ronson’s custody; (2) the disappearance 

of the five-hour surveillance tape; (3) the true reason that Bradley’s preliminary hearing was 

continued and his charges eventually nolle prosequied, and what benefit Bradley expected in 

exchange for his testimony; and (4) Ronson’s numerous instances of false testimony.6

 Because 

 6

 The Commonwealth initially contends that White’s entire argument is procedurally 

defaulted because White did not raise these issues at trial. Yet, White alleged that the 

Commonwealth had withheld or failed to preserve exculpatory evidence preceding his trial and, 

accordingly, requested that the court order a new trial. Because we are satisfied that White took 

the necessary steps to “afford the trial court an opportunity to rule intelligently on the issues 

presented,” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991), we hold that 

White adequately preserved this issue for appeal. 
- 13 -

the exculpatory value of the missing videotape and cell phones is similarly speculative, we 

address those issues together. 

A. The Videotape and Cell Phones

White first argues that the missing videotape and cell phones merit reversal of his 

convictions and a new trial under Brady because the Commonwealth did not notify him of the 

fact that they were missing prior to trial. While White characterizes this as a Brady violation, 

this allegation is actually controlled by the holdings of the Supreme Court of the United States in 

California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988). 

White also argues that this evidence would be exculpatory under Brady because of a missing 

evidence inference favorable to him, also known as “spoliation.” 

1. Trombetta and Youngblood

Brady and its progeny pertain to exculpatory evidence still in the government’s 

possession, of which the exculpatory value is known. United States v. Femia, 9 F.3d 990, 993 

(1st Cir. 1990). In contrast, and as is the case here, Trombetta and Youngblood pertain to 

evidence that is no longer in the government’s possession, whose exculpatory value, if any, is 

unknown. Id.

In Trombetta, the seminal case involving the prosecution’s failure to preserve evidence, 

the United States Supreme Court held that “the government violates due process if the evidence 

possessed ‘exculpatory value that was apparent before the evidence was destroyed, and the 

evidence is of such a nature that the defendant would be unable to obtain comparable evidence 

by any other reasonable means.’” Park v. Commonwealth, 32 Va. App. 407, 420, 528 S.E.2d 

172, 178 (2000) (quoting Trombetta, 467 U.S. at 489). In Youngblood, the Court added a third 

requirement, holding that if “a criminal defendant can[not] show bad faith on the part of the 

police, failure to preserve potentially useful evidence does not constitute a denial of due process 
- 14 -

of law.” 488 U.S. at 58. Thus, a defendant seeking a new trial on the basis of missing evidence 

formerly in the Commonwealth’s possession must show that (1) the evidence possessed an 

apparent exculpatory value, (2) the defendant could not obtain comparable evidence from other 

sources, and (3) the Commonwealth, in failing to preserve the evidence, acted in bad faith. 

Furthermore, “[t]he presence or absence of bad faith by the police for purposes of the Due 

Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the 

evidence at the time it was lost or destroyed.” Id. at 56 n.*. 

White has not met his burden in showing that either the police or the Commonwealth 

acted in bad faith in losing the tape and cell phone. Although Ronson testified incorrectly that he 

had placed White’s cell phone in the personal property room of the county jail, this testimony 

came months after the fact, and the trial court apparently inferred that he was honestly mistaken 

rather than deliberately lying. Nothing in the record indicates that the police had knowledge that 

these pieces of evidence were exculpatory, nor has White proffered the nature of any exculpatory 

information either the videotape or the cell phone would show. Instead, White simply expresses 

the hope that they might either show that he did not call Bradley or did not drive off in pursuit of 

the mail carrier. Conversely, by all accounts, Ronson and Diasperra both thought that the 

videotape and cell phones would be inculpatory, as they both provided evidence from which the 

fact finder could infer that White was expecting a package to arrive in the mail. Thus, with 

regard to both the videotape and the cell phone, White has not shown that either piece of 

evidence “possessed exculpatory value” apparent prior to the misplacement of the evidence. 

Park, 32 Va. App. at 420, 528 S.E.2d at 178 (quoting Trombetta, 467 U.S. at 489) (internal 

quotations omitted). 

Moreover, with regard to his cell phone, White could have certainly obtained comparable 

evidence from other sources. See Stockton v. Murray, 41 F.3d 920, 927 (4th Cir. 1994) (“Brady
- 15 -

does not compel the disclosure of evidence available to the defendant from other sources, 

including diligent investigation by the defense.”). Because “[t]his call also must have appeared 

in [White’s] own phone records[,]” United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 

1998), White has not met his burden on this requirement either. 

2. Spoliation

White also argues that the fact that the videotape and cell phones were missing is, in and 

of itself, a Brady violation, because had he known that the videotape and cell phones were 

missing at trial, he would have been entitled to an exculpatory missing evidence inference. 

Again, regarding the cell phones, “Brady does not compel the disclosure of evidence available to 

the defendant from other sources, including diligent investigation by the defense.” Stockton, 41 

F.3d at 927. 

Regarding the missing videotape, White relies on Wolfe v. Virginia Birth-Related 

Neurological Injury Comp. Program, 40 Va. App. 565, 580 S.E.2d 467 (2003), in which we 

discussed the concept of spoliation, or a missing evidence inference. Specifically, we stated that 

“Virginia law recognizes a spoliation or missing evidence inference, which provides that ‘where 

one party has within his control material evidence and does not offer it, there is an inference that 

the evidence, if it had been offered, would have been unfavorable to that party.’” Id. at 580-81, 

580 S.E.2d at 475 (quoting Charles E. Friend, The Law of Evidence in Virginia, § 10-17, at 338 

(5th ed. 1999)). “A spoliation inference may be applied in an existing action if, at the time the 

evidence was lost or destroyed, ‘a reasonable person in the defendant’s position should have 

foreseen that the evidence was material to a potential civil action.’” Id. at 581, 580 S.E.2d at 475 

(quoting Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 270-71 (Ill. 1995)) (emphasis added). 
- 16 -

 However, our Supreme Court has held that “spoliation” does not apply in criminal cases. 

In Russell v. Commonwealth, 216 Va. 833, 836-37, 223 S.E.2d 877, 879 (1976), the Court 

stated: 

We do not believe a missing-witness presumption instruction has 

any place in a criminal case. If its use is permitted, both the 

prosecution and the defense, against the risk of having the 

instruction granted at the request of the opposing party, would be 

required to call all witnesses possibly having some knowledge of 

the case, even though their testimony might be merely cumulative. 

Thus, it is clear that White does not meet his burden of proving that this evidence was 

exculpatory merely by demonstrating its absence and, thus, the Commonwealth’s failure to 

disclose this evidence did not constitute a Brady violation. 

B. Todd Bradley

As noted above, Bradley, the resident of the house to which Inspector Cross delivered the 

package, faced a conspiracy to distribute marijuana charge, and testified against White at his 

trial. He further testified that the Commonwealth had made him no promises of leniency in 

exchange for his testimony. He also testified that his preliminary hearing was not continued so 

that it would take place after White’s trial, but because he was out of town. When White’s 

attorney asked Bradley about whether he expected favorable treatment as a result of testifying, 

Bradley responded: “Well, I leave that to my attorney to advise me. I hope for a fair trial, and 

my attorney is going to do the rest.” 

White argues that “[t]he prosecutor in this case had a duty to disclose any false testimony 

by Todd Bradley as to how often and why his preliminary hearing was continued and whether he 

had any reason to hope that his testifying against the appellant would benefit his case.” The 

Commonwealth agrees that such a duty exists, but argues that White produced no evidence to 

show that Bradley lied. White’s counsel responded at oral argument that “we all know how 
- 17 -

these things work” and suggested that Bradley simply must have had an undisclosed agreement 

with the Commonwealth. We agree with the Commonwealth that such unsupported speculation 

is insufficient to satisfy White’s burden to establish the existence of either perjury by Bradley or 

an undisclosed agreement for leniency. 

The record simply does not support White’s claim that Bradley lied about his motivations 

for testifying. Bradley never denied that he was hoping for favorable treatment from the 

Commonwealth in exchange for his testimony, and nothing in the record contradicts Bradley’s 

claim that his case was continued because he was out of town. Furthermore, White’s attorney 

cross-examined Bradley about his pending charge at White’s trial. Thus, the trial court sitting as 

the fact finder was aware that Bradley faced a criminal charge, and could infer that Bradley 

hoped for favorable treatment from the Commonwealth in exchange for his testimony. 

Therefore, even if we were to accept White’s bare supposition that Bradley lied about his 

expectations from his testimony, we cannot say that the suppression of this evidence would 

“‘undermine[] confidence in the outcome of the trial.’” Teleguz, 273 Va. at 488, 643 S.E.2d at 

727 (quoting Bagley, 473 U.S. at 678). Thus, we reject White’s argument in this regard as well. 

C. Ronson’s Testimony

Lastly, White argues that Investigator Ronson’s numerous “instances of false testimony” 

are exculpatory. However, White has not met his burden in showing that Ronson testified 

falsely. 

“[C]onclusory allegations of perjury do not prove that [a witness’] testimony [is] false.” 

United States v. Coronel-Quintana, 752 F.2d 1284, 1290 (8th Cir. 1985). Even “[c]ontradictions 

and changes in a witness’s testimony alone do not constitute perjury and do not create an 

inference, let alone prove, that the prosecution knowingly presented perjured testimony.” Tapia 

v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991). 
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Although there clearly were inconsistencies in Ronson’s testimony, the trial court found 

that many of these inconsistencies were due to his testimony at White’s preliminary hearing, in 

which he testified to hearsay evidence not within his personal knowledge offered “only for 

probable cause purposes.” Moreover, White’s attorney at trial had a transcript of the preliminary 

hearing proceedings, and thus knew or should have known about any inconsistencies between 

Ronson’s testimony at the preliminary hearing and trial. As such, they were not “suppressed by 

the government,” Lockhart, 34 Va. App. at 345, 542 S.E.2d at 8, and, thus White fails to meet 

the requirements for a Brady violation in this area as well.

CONCLUSION

For the reasons stated herein, we hold that none of the evidence referenced by White 

meets the requirements of Brady, Trombetta, or Youngblood. Thus, we hold that the 

Commonwealth did not deprive White of due process either by withholding or failing to preserve 

exculpatory evidence. Accordingly, we affirm White’s convictions. 

Affirmed.