Daniel Cotton v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
DANIEL COTTON
v. Record No. 1272-94-2 MEMORANDUM OPINION *
BY JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA JANUARY 16, 1996
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Angela D. Whitley, for appellant.
Linwood T. Wells, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Daniel Cotton (appellant) appeals from a judgment of the
Circuit Court of Chesterfield County finding him guilty of
statutory burglary and arson. On appeal, he contends that his
due process rights were violated because the Commonwealth did not
provide timely and adequate discovery pursuant to Brady v.
Maryland, 373 U.S. 83 (1963). He further argues the trial court
erred in admitting evidence of his other crimes, by excluding his
statement to an accomplice, by refusing to permit impeachment of
a witness with a misdemeanor conviction, and in failing to strike
the evidence as to both offenses. We agree that the Commonwealth
failed to disclose evidence material to appellant's defense, and
we reverse and remand appellant's convictions.
I.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On January 31, 1993, appellant quit his job at a bar after
an argument with his employer, Theodore Kastanos. Appellant left
the bar that night with Clifford Carnes, who also worked at the
bar. Appellant said Kastanos would "burn in hell" and "God [was]
going to punish [him]."
Later that night, Carnes and appellant went to a service
station to purchase gas. Appellant pumped gasoline into Carnes'
car. Carnes testified that after they left the gas station, he
noted appellant covering something up on the floor board.
Appellant had a jar of gasoline on the floor of the car. At
appellant's request, Carnes drove to Kastanos' house, and
appellant threw the jar into the house. Carnes saw an orange
glow about the house.
A fire fueled by an accelerant was discovered at the house,
which was owned by Kastanos' mother. The morning after the fire,
a police officer observed a person resembling appellant drive by
the Kastanos home.
Tyrone Morris, who was incarcerated with appellant before
trial, testified as a rebuttal witness on behalf of the
Commonwealth. Morris testified that appellant admitted throwing
a jar of gasoline into Kastanos' house. According to Morris,
appellant had said that he intended to persuade his girlfriend
and brother to testify on his behalf and give him a false alibi.
II.
Before trial, appellant filed a motion for discovery,
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requesting that the Commonwealth be required to provide him with
information pursuant to Brady, including "all consideration or
promises of consideration given to or on behalf of any potential
witness or expected or hoped for by any witness" and "any and all
other records and/or information which arguably could be helpful
or useful to the defense in impeaching or otherwise detracting
from the probative force of the Commonwealth's evidence or which
arguably could lead to such records or information." Although
the trial court did not enter an order upon the motion, the court
did state at a pretrial hearing that the Commonwealth was
obligated to answer the discovery request and would "be
1
handcuffed" at trial by what it did not reveal.
Immediately before Morris testified, the prosecutor revealed
to the defense that he had agreed to write to the parole board on
Morris' behalf. In the letter, the prosecutor was to indicate
that Morris had been cooperative in the proceeding against
appellant. The prosecutor further stated that Morris, at the
time of trial, was serving a sentence for a revocation of his
parole. Appellant's counsel used this information in her cross-
examination of Morris.
At his sentencing hearing, appellant introduced evidence
tending to affect Morris' credibility. Officer Brian Price
testified that he filed a disciplinary report against Morris for
1
Although it is advisable for the trial court to enter an
order defining the limits of discovery, the absence of such an
order does not preclude an appellate court from determining
whether the Commonwealth has responded appropriately to a
defendant's motion for discovery. See Hackman v. Commonwealth,
220 Va. 710, 713, 261 S.E.2d 555, 557-58 (1980).
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spitting on appellant while in jail. Vincent Vaughan and James
Rose, both of whom were incarcerated with appellant and Morris,
observed Morris reading the transcript of the statement Carnes
gave to the police. Morris had said he would do anything to see
appellant "go down." Vaughan and Rose testified that appellant
consistently denied starting the fire. Furthermore, when
appellant was moved to a different tier of the jail, Rose heard
Morris comment that he would make sure that appellant suffered.
Prior to sentencing, appellant filed a motion for a new trial,
contending that the Commonwealth had violated its duty to
disclose in a timely fashion Morris' criminal record and
relationship with the Commonwealth. On February 25, 1994, more
than twenty-one days past the date of the sentencing order and
after appellant had noted his appeal to this Court, the trial
court ordered that the Commonwealth's failure to provide adequate
discovery had denied appellant the opportunity meaningfully to
cross-examine the Commonwealth's witnesses, but that the court
was without jurisdiction to grant appellant a new trial.
III.
Appellant argues that his rights to due process were
violated because the Commonwealth did not timely reveal, among
other things, Morris' relationship with the prosecution and his
criminal record. He contends that the Commonwealth's late
disclosure of the information was prejudicial to him because it
denied him the opportunity to investigate effectively other
evidence he could have used to impeach Morris, such as that he
presented at sentencing.
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"[T]he suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the
evidence is material either to guilt or to punishment." Brady,
373 U.S. at 87. "Disclosure is required where the evidence is
both (1) favorable to the defendant, and (2) material either to
guilt or to punishment." Humes v. Commonwealth, 12 Va. App.
1140, 1142-43, 408 S.E.2d 553, 554 (1991). 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." United States v. Bagley, 473 U.S. 667, 682
(1985).
"Where a witness is expected to testify, impeachment
evidence known to the Commonwealth must be disclosed." Moreno v.
Commonwealth, 10 Va. App. 408, 416, 392 S.E.2d 836, 842 (1990).
In fact, reversal of the defendant's conviction is the proper
remedy where evidence withheld by the prosecution
"clearly tends to exculpate the defendant or otherwise
depreciates the value of testimony or evidence central to the
prosecution's case. When the 'reliability of a given witness may
well be determinative of guilt or innocence,' evidence affecting
the credibility of that witness should not be concealed by the
prosecution." Burrows v. Commonwealth, 17 Va. App. 469, 472, 438
S.E.2d 300, 303 (1993) (quoting Napue v. Illinois, 360 U.S. 264,
269 (1959)).
Morris' testimony provided a critical link in the chain of
evidence connecting appellant to the charged offenses. Morris'
testimony strengthened that of Carnes, a witness with
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questionable credibility, considering his own involvement in the
incident and his agreement to cooperate with the Commonwealth in
the proceedings against appellant. For this reason, Morris'
credibility was a significant factor in determining appellant's
guilt, and the Commonwealth had a duty to disclose information
appellant could have used to impeach him.
Furthermore,
[t]he constitutional right to receive
exculpatory evidence is not fulfilled, and a
prosecutor's duty is not satisfied, simply by
disclosure; timely disclosure is required.
"This right guarantees an accused sufficient
time to investigate and evaluate the evidence
in preparation for trial." Where a defendant
is forced, to his prejudice, to proceed ill
prepared or in undue haste because of the
prosecutor's untimely disclosure, his
constitutional right is impaired, and his
conviction must be reversed.
Moreno, 10 Va. App. at 417, 392 S.E.2d at 842. In assessing
whether appellant was prejudiced, "we compare the evidence
adduced at trial with what [appellant] contends could have been
adduced at trial" had the information been disclosed at an
earlier time, and determine if that evidence would have affected
the trial's outcome. Robinson v. Commonwealth, 231 Va. 142, 152,
341 S.E.2d 159, 165 (1986).
Appellant cross-examined Morris concerning his prior
criminal record and his association with the Commonwealth.
However, at sentencing appellant demonstrated the extent of
impeachment evidence he would have been capable of producing at
trial had the Commonwealth responded to appellant's discovery
request in a timely way. Cf. Moreno, 10 Va. App. at 420, 392
S.E.2d at 844 (defendant, who "introduced no evidence post
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verdict that he had uncovered that might have been obtained and
been used at trial had he been furnished" impeachment evidence
earlier, had failed to demonstrate how the late disclosure
prejudiced him). A reasonable probability exists that if the
jury had heard this evidence, which significantly depreciated the
value of Morris' testimony, the outcome of the trial would have
been different.
IV.
Appellant further contends that the trial judge's failure to
grant his motion in limine violated his constitutional rights to
due process and equal protection. Prior to trial, defense
counsel made a motion in limine to exclude evidence of other
crimes contained in two taped conversations. The trial judge
opined that he would not rule on the admissibility of this
evidence until it was offered in evidence. The judge commented
that he would not expect the prosecutor, who presumably knew the
rules of evidence, to offer inadmissible evidence. Appellant
made no objection to the ruling of the court and did not raise at
any time a constitutional issue of due process or equal
protection. Therefore, we decline to address these issues. Rule
5A:18.
Furthermore, the trial judge sustained appellant's
objections to Carnes' references to "other cases" and to the fact
that appellant had been in prison. These rulings cannot be
considered as a basis for reversal on appeal. See id.
V.
Appellant argues that the trial court erred in excluding
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from evidence his denials to Carnes that he started the fire.
Generally, an out-of-court statement by a
criminal defendant, if relevant, is
admissible as an exception to the hearsay
rule when offered by the prosecution because
it constitutes an admission of a party.
However, when proffered by the party who made
the statement, such a statement is generally
not admissible. Such statements are hearsay,
therefore, they are inadmissible unless
falling within an exception to the hearsay
rule.
King v. Commonwealth, 18 Va. App. 57, 59, 441 S.E.2d 704, 705
(1994). Appellant did not establish that his own statements
which he sought to admit fell within any exception to the hearsay
rule. The trial court, therefore, did not err in excluding them.
VI.
Defense counsel, on cross-examination, asked Morris whether
he had been found guilty of the misdemeanor of interfering with a
police officer. The prosecutor objected to this question. The
trial court ruled that defense counsel could ask only questions
that affected Morris' credibility. Defense counsel questioned
Morris no further.
Appellant complains on appeal that the trial court prevented
him from impeaching the credibility of Morris with a conviction
of a misdemeanor involving moral turpitude. Generally,
"[e]vidence of a prior conviction of a misdemeanor involving
moral turpitude is admissible to impeach the credibility of a
witness." Dowell v. Commonwealth, 12 Va. App. 1145, 1147, 408
S.E.2d 263, 264 (1991), aff'd en banc, 14 Va. App. 58, 414 S.E.2d
440 (1992). "'Moral turpitude' is defined as 'an act of
baseness, vileness or depravity in the private and social duties
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which a man owes to his fellow man, or to society in general,
contrary to the accepted and customary rule of right and duty
between man and man.'" Id. (citation omitted). "The character
of the misdemeanor affords the test" of whether the crime
involves moral turpitude. Parr v. Commonwealth, 198 Va. 721,
724, 96 S.E.2d 160, 163 (1957).
"'To constitute obstruction of an officer in the performance
of his duty . . . there must be acts clearly indicating an
intention on the part of the accused to prevent the officer from
performing his duty . . . .'" Love v. Commonwealth, 212 Va. 492,
494, 184 S.E.2d 769, 771 (1971) (citation omitted). A conviction
of interfering with a police officer, however, does not involve a
witness' credibility and is not a crime of moral turpitude.
Thus, the ruling of the trial court was plainly correct. See 1
Charles E. Friend, The Law of Evidence in Virginia § 4-2 (4th ed.
1993).
VII.
We do not address appellant's challenges to the sufficiency
of the evidence because it is unlikely these same issues will
recur in a future trial. Because we find appellant was
prejudiced by the late disclosure of information the Commonwealth
was required to reveal, we reverse appellant's convictions and
remand the case for further proceedings should the Commonwealth
be so advised.
Reversed and remanded.
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