COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Richmond, Virginia 

IDA LYNNETTE DAVIS, S/K/A 

 IDA LYNETTE DAVIS 

 OPINION BY 

v. Record No. 0269-96-3 JUDGE JAMES W. BENTON, JR. 

 SEPTEMBER 30, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Elizabeth P. Murtagh, Assistant Public 

Defender, for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Ida Lynnette Davis was convicted by a jury of distribution 

of cocaine in violation of Code § 18.2-248. On appeal, Davis 

argues that the trial judge erred in (1) denying her pretrial 

motion for disclosure of the location of the police officers' 

observation post; (2) prohibiting her from calling witnesses to 

rebut the officer's testimony regarding his ability to view the 

place where the officer alleged Davis made the distribution; (3) 

denying portions of her pretrial Brady motion for discovery of 

exculpatory evidence; (4) denying her pretrial request for 

production of "mug shots" of other women arrested in the same 

location for selling cocaine; and (5) denying her motion to 

strike at the close of all the evidence. For the reasons that 

follow, we reverse the conviction and remand the case for further 

proceedings consistent with this opinion. 
 2 

 I. 

 The evidence proved that from 7:15 p.m until 8:30 p.m. on 

July 14, 1995, police investigators J. S. Taylor and A. S. Thomas 

conducted a surveillance of the 2100 block of Main Street in 

Lynchburg. Officer Taylor testified that Davis was on the 

sidewalk with another woman, that he had known Davis for almost 

two years, that he had seen her more than ten times, and that he 

previously had seen her from a distance of a "[f]ace-to-face 

conversation." 

 Officer Taylor observed another individual, later identified 

as Linda Jones, arrive driving a white Toyota. Taylor testified 

that Jones exited the car, approached Davis on the sidewalk in 

front of a house at 2110 Main Street and gave Davis some folded 

paper resembling money. Davis went inside the house. When Davis 

returned, she dropped an "off-white chunk" from her closed right 

fist into Jones' extended hand. Jones looked at the item, put 

the item into the right front pocket of her shorts, entered her 

car and drove away. 

 A police officer stopped Jones after she drove away and 

seized the item that Jones put in her pocket. The item the 

officer seized from Jones was later tested and found to be 

cocaine. 

 Jones testified that she drove a white Toyota to 2110 Main 

Street on July 14, 1995 to purchase drugs. Jones remembered 

buying cocaine but could only describe the seller as a heavy, 
 3 

black woman with curls in her hair. On cross-examination, 

counsel for Davis asked Jones whether Davis was the seller. 

Jones stated, "No. It was not her." On redirect, Jones 

testified that she was unable to identify the seller and that she 

did not know whether Davis was the seller. 

 After the Commonwealth rested, Davis called her grandmother 

as a witness. Davis' grandmother testified that she resides at 

2110 Main Street and that Davis resides on another street with 

Davis' mother. The grandmother testified that on July 14, 1995, 

she was home because two men were renovating her kitchen at 2110 

Main Street. Davis arrived in the afternoon, helped the 

grandmother and cleaned household items on the sidewalk and the 

porch. Around 7:00 p.m. that day, Davis was moving the items 

back into the house. The grandmother left the house at 

approximately 7:20 p.m. and returned at 10:40 p.m. The 

grandmother also testified that "the street's always full of 

people." 

 Davis testified in her own defense. She testified that she 

did not know Jones, had never seen her before and did not sell 

drugs on July 14, 1995. Davis further testified that on July 14, 

1995 she was washing her grandmother's stove and cabinets on the 

front porch and sidewalk. She also testified that many people 

were standing on the sidewalk that evening. 

 The trial judge overruled Davis' motion to strike the 

evidence. The jury found Davis guilty of distribution of 
 4 

cocaine, and the judge imposed the jury's sentence of five years 

in the penitentiary and a fine of $500. 

 II. 

 Davis argues that the trial judge erred in denying her 

pretrial "Motion to Compel Disclosure of Observation Post." We 

agree. 

 "[T]he Commonwealth has a qualified privilege not to 

disclose the location" of a police observation post. Hollins v. 

Commonwealth, 19 Va. App. 223, 226, 450 S.E.2d 397, 399 (1994). 

The Commonwealth's privilege is limited, however, by "the 

fundamental requirements of fairness," which require 

consideration of an accused's "right to prepare [a] defense." 

Roviaro v. United States, 353 U.S. 53, 60, 62 (1957). Setting 

forth the analysis applicable to requests for disclosure of 

observation posts, this Court stated the following in Hollins: 

 To compel the disclosure of the exact 

location of a surveillance post, [a 

defendant] must "show that [she] needs the 

evidence to conduct [her] defense and that 

there are no other adequate alternative means 

of getting at the same point." Only then 

must the court balance the public interest in 

effective law enforcement and citizens' 

safety against the defendant's constitutional 

right to [prepare a defense and] confront 

government witnesses. 

19 Va. App. at 227, 450 S.E.2d at 399 (citation omitted). 

 After a pretrial evidentiary hearing, the trial judge 

overruled Davis' motion on the ground that Davis had failed to 

prove she needed to know the location of the observation post. 
 5 

Davis contends that she had proved a need for the information in 

order to prepare her case and properly cross-examine the police 

officers. We agree that the record contains such proof. 

 In Hollins, this Court found that Hollins failed to show "a 

required need for disclosure of the observation post" because he 

"failed to show any possible obstruction in the area, to question 

the officer about any obstructions or to present any independent 

evidence of obstructions" in the relevant block of the street. 

See id. at 228, 450 S.E.2d at 400. Unlike in Hollins, counsel 

for Davis offered independent evidence showing that obstructions 

existed in the area. Officer Taylor testified that when he 

observed Davis on July 14 he was "[w]ithin a city block" from 

Davis and used binoculars to aid his vision. Although Officer 

Taylor testified that he "had clear vision, no obstructions," 

Davis offered into evidence numerous photographs that revealed, 

in the area around the 2100 block of Main Street, trees, other 

foliage, telephone poles, columns and railings. The investigator 

who photographed the area testified that "[d]epending on where 

[the police] were located," the officers' views may have been 

obstructed. Nevertheless, the trial judge stated that "there 

could be any number of observation points within [the] 

circumference [around the 2100 block] from which you would have 

an unobstructed view." 

 We hold that the trial judge erred in finding that Davis 

failed to show she needed information regarding the location of 
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the officers' surveillance post.1

 Counsel proved, through 

independent evidence, the presence of obstructions in the area. 

Moreover, the record contains essentially no evidence to 

corroborate the testimony of the surveillance officer. See id.

at 227-28, 450 S.E.2d at 399-400 (considering "the quality of any 

corroborating evidence" as a factor in the inquiry). The 

evidence establishes that other people were in the vicinity, and 

that the purchaser of the cocaine could not identify Davis as the 

seller. This case is distinguishable from Hollins, and we find 

that Davis met her burden of showing a need for the information. 

Accord Commonwealth v. Lugo, 548 N.E.2d 1263, 1268 (Mass. 1990). 

 III. 

 Davis also argues that the trial judge erred in ruling that 

she could not offer as witnesses two property owners who, Davis 

alleges, allowed the officers to use their land for the 

observation post.2 We agree. 

 

 1Although counsel independently discovered the identity of 

the individuals who permitted the officers to use their land, 

nothing in the record indicates that those individuals knew 

precisely where the officers stood when they made their 

observations. Thus, the availability of the land owners did not 

obviate Davis' need for the information. 

 2Four days before trial, Davis filed a motion for a 

continuance, in part on the ground that she had recently become 

aware of two additional witnesses. Counsel told the judge that 

the witnesses were two property owners who would "say that the 

police were on their property, making their observations." The 

trial judge referred to his prior ruling denying Davis' motion 

for disclosure of the observation post and stated, "I'm not going 

to allow you to bring those people in court to do indirectly what 

I've ordered that you can't do directly." Counsel notified the 

judge that the individuals were not "fearful of testifying." The 

judge noted that "if they're going to come and testify anyway," 
 7 

 "The Sixth Amendment of the United States Constitution 

guarantees the right to confront and cross-examine witnesses, a 

'fundamental right essential to a fair trial.'" Hollins, 19 Va. 

App. at 226, 450 S.E.2d at 399 (quoting Pointer v. Texas, 380 

U.S. 400, 403 (1965)). In addition, an accused has a "right 'to 

call for evidence in [the accused's] favor.'" Oliva v. 

Commonwealth, 19 Va. App. 523, 526, 452 S.E.2d 877, 880 (1995) 

(quoting Va. Const. Art. I, § 8). 

 The right to offer the testimony of 

witnesses, and to compel their attendance, if 

necessary, is in plain terms the right to 

present a defense, the right to present the 

defendant's version of the facts as well as 

the prosecution's to the jury so it may 

decide where the truth lies. Just as an 

accused has the right to confront the 

prosecution's witnesses for the purpose of 

challenging their testimony, [the accused] 

has the right to present his own witnesses to 

establish a defense. This right is a 

fundamental element of due process of law. 

Washington v. Texas, 388 U.S. 14, 19 (1967); see also Massey v. 

 

counsel would not need a continuance in order to subpoena the 

witnesses. The judge added that counsel could "have them 

subpoenaed today." However, the judge noted that he was not sure 

he was "going to let those witnesses on. I've already said that 

. . . information [revealing the officers' observation post] was 

not coming in." The judge further stated, "[W]e're not going to 

explore that anymore . . . . I mean, that's not something that 

you're going to be allowed to dance around in this trial." The 

trial judge ruled that the continuance was unnecessary and denied 

the continuance. 

 On the morning of trial, at a pretrial conference in the 

judge's chambers, the Commonwealth notified the judge that 

counsel for Davis had subpoenaed the neighbors. The judge told 

counsel that "we're not getting into the location of the 

surveillance point . . . . So I don't want those witnesses 

called for that purpose." 
 8 

Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 757-58 (1985). 

 Because Officer Taylor was the only witness who described 

the transaction, Davis' ability to raise the question whether 

Officer Taylor's view was obstructed was crucial to her defense. 

Accord Lugo, 548 N.E.2d at 1268. Although Officer Taylor 

testified that he told the owner of the property used for the 

surveillance "that [the officers' use of the property] would be 

kept confidential to protect [the landowner] because [the 

landowner] was in fear of retaliation," counsel for Davis 

discovered those individuals independent of the officers and 

asserted that those individuals were willing to testify. 

Moreover, counsel for Davis also asserted that the surveillance 

post was no longer being used by the police. That assertion was 

not refuted. 

 Davis' right to present facts concerning the observation 

post was thwarted by the trial judge's ruling that because the 

Commonwealth was not required to disclose the location of the 

post during discovery, Davis could not offer her own independent 

evidence at trial in an attempt to prove the location of the post 

and the obstructions. Davis' counsel informed the trial judge 

that she had located the property owners who would testify that 

they were home when the police used their property as an 

observation point. Davis' counsel further represented that 

"there are clear obstructions . . . there are things in the way." 

 Indeed, at a pretrial hearing, Davis' counsel offered as 
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exhibits sixteen photographs that depicted "a three hundred and 

sixty degree view of that area." The witness who made the 

photographs testified that obstructions were visible in some of 

the photographs. 

 In disallowing the testimony, the trial judge prevented 

Davis from challenging the officers' ability to observe the 

events about which they testified. The trial judge erred in 

excluding testimony of the witnesses that was relevant to that 

inquiry. Because the trial judge ruled that the Commonwealth was 

not required to disclose the observation post, the error in 

refusing to allow Davis to prove the site of the post through her 

own witnesses was not harmless. 

 IV. 

 Because these issues are likely to arise again on remand, we 

must also address Davis' argument that the trial judge erred in 

denying her motion for discovery of exculpatory evidence and her 

motion for discovery under Rule 3A:11. 

A. EXCULPATORY EVIDENCE 

 Although "[n]o general constitutional right to discovery 

exists in a criminal case," Allen v. Commonwealth, 20 Va. App. 

630, 637, 460 S.E.2d 248, 251 (1995), rev'd on other grounds, 252 

Va. 105, 472 S.E.2d 277 (1996), the Commonwealth may not refuse 

to disclose material, exculpatory evidence. See Brady v. 

Maryland, 373 U.S. 83, 87 (1963). "[T]he suppression by the 

prosecution of evidence favorable to an accused upon request 
 10 

violates due process where the evidence is material either to 

guilt or to punishment, irrespective of the good faith or bad 

faith of the prosecution." Id. 

 Counsel for Davis filed a Brady motion in which she sought 

discovery of the following: 

 1. All information regarding the number of 

African-American females that were observed 

on the 2100 block on July 14, 1995, 

specifically, the name of each individual, 

address, a physical description of the 

individual and the opportunity to observe or 

copy any photograph, video, fingerprint or 

other form of identification. 

 2. The names of the police officers who were 

conducting the surveillance of the 2100 block 

of Main Street on July 14, 1995. 

 3. The names and address[es] of all 

individuals observed by police officers who 

were suspected of being involved with drug 

trafficking or drug use on the 2100 block of 

Main Street on July 14, 1995 and the name of 

the officer who made the observation. 

 Davis argues that several people were in the vicinity of the 

residence at the time of the surveillance and that the identity 

of those persons is exculpatory for several reasons. She 

contends that several women were arrested for selling drugs, that 

she did not sell drugs, that the purchaser did not identify her 

as the seller of drugs, and that the police officer misidentified 

her as the seller. 

 The information sought in paragraphs 2 and 3 was not shown 

to be exculpatory. As to the request in paragraph 1, we hold 

that the trial judge erred under the circumstances presented. 
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The person who purchased the drugs could not identify Davis as 

the seller. However, Officer Taylor who testified that he had 

encountered Davis several times, unequivocally identified Davis 

as the person who sold cocaine to Jones on July 14, 1995. Davis 

argues that Officer Taylor mistakenly identified her as the 

person who sold cocaine on July 14, 1995. The existence of 

evidence that other African-American females were seen in the 

vicinity of 2100 Main Street that same day might have a tendency 

to prove Davis' defense that she was not the person Officer 

Taylor observed selling drugs to Jones. Evidence is exculpatory 

under Brady and, therefore discoverable, if Davis could have used 

it for impeachment purposes. See United States v. Bagley, 473 

U.S. 667, 676 (1985). These records were discoverable under 

Brady. 

B. RULE 3A:11 MOTION 

 In a Rule 3A:11 motion, Davis also sought "photographs (mug 

shots) of Ida L. Davis, Rhonda Davis Robinson, Demetrius Y. 

Lambert Bradley, and Cylethia Skinner." Under Rule 3A:11, an 

accused can obtain items in the possession of the Commonwealth 

"upon a showing that the items sought may be material to the 

preparation of [the accused's] defense and that the request is 

reasonable." Rule 3A:11(a)(2). Davis' counsel represented to 

the judge that these persons were in the vicinity of the 2100 

block of Main Street "on or about" July 14, 1995 and had been 

arrested for selling drugs. Indeed, the evidence proved Robinson 
 12 

resided at 2110 Main Street. The identity of women who were 

later arrested for selling drugs from that locale was material 

not because Davis alleged that they were eyewitnesses, cf. Lowe 

v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977), 

but because it tended to support Davis' defense of 

misidentification. See Bowman v. Commonwealth, 248 Va. 130, 

133-36, 445 S.E.2d 110, 112-13 (1994). The additional assertion 

that Davis shared some similar "features and physical 

characteristics" was sufficient proof that the information may 

have been material to the preparation of the case. Accordingly, 

we hold that the trial judge erred, under the circumstances, in 

denying the discovery motion. 

 V. 

 Finally, Davis' argument that we should dismiss the 

prosecution because the trial judge erred in denying her motion 

to strike the evidence lacks merit. 

 For the reasons stated, we remand the case for proceedings 

consistent with this opinion. 

 Reversed and remanded.