Kenneth Edward Brown v. Commonwealth of Virginia ( 1999 )


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  •                   COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
    Argued at Salem, Virginia
    KENNETH EDWARD BROWN
    MEMORANDUM OPINION * BY
    v.   Record No. 0695-98-3               JUDGE SAM W. COLEMAN III
    JUNE 15, 1999
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF HENRY COUNTY
    Charles M. Stone, Judge
    James R. McGarry (Young, Haskins, Mann,
    Gregory & Smith, P.C., on brief), for
    appellant.
    Eugene Murphy, Assistant Attorney General
    (Mark L. Earley, Attorney General, on
    brief), for appellee.
    Kenneth Edward Brown was convicted by a jury of aggravated
    malicious wounding and robbery.   On appeal, Brown contends that
    the trial court erred by denying his motions (1) for a new trial
    on the ground that the Commonwealth violated the court’s discovery
    order by withholding from him the fact that a Commonwealth’s
    witness had a felony conviction, (2) for a mistrial because the
    Commonwealth introduced inadmissible evidence that he used
    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
    this opinion is not designated for publication.
    cocaine, and (3) to strike the evidence as insufficient to support
    the robbery conviction.   Finding no error, we affirm the
    convictions.
    BACKGROUND
    Grogan’s Grocery is a country store located in Henry County
    owned and operated by Arnie Grogan.    During the early morning
    before the store opened, Brown knocked on the front door under the
    pretense of needing to purchase kerosene.   Grogan opened the store
    for Brown and as Grogan turned around, Brown struck him on the
    head until he became unconscious.
    Grogan’s billfold, which had been in the cash register before
    Brown entered the store, contained approximately $1,000 in $100
    bills.   After Grogan regained consciousness, the billfold was
    missing.
    At trial, Grogan positively identified Brown as his
    assailant.   On cross-examination, Grogan admitted that he was not
    wearing glasses on the morning of the attack, that he only saw the
    assailant for a “short time,” and that he had difficulty
    identifying Brown as his assailant in a previous identification.
    Nevertheless, he testified that he was “sure” about the
    identification.
    The Commonwealth also proved that Brown’s vehicle was at
    Grogan’s Grocery on the morning when the crime occurred.    Jason
    Dodd testified that on the morning of the robbery he saw a vehicle
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    in the middle of the road near Grogan’s store.      In the vehicle was
    a man whom Dodd identified as Brown.       Additionally, Dodd
    identified pictures of Brown’s car as the vehicle he saw that
    morning. 1
    John Wilson, who also drove by Grogan’s store that morning,
    testified that he saw a car parked there that had no license
    plates, which he later identified from the pictures as Brown’s
    car.       Wilson pointed out that he recognized the rust spot on the
    fender.       After trial, but before sentencing, the Commonwealth
    informed Brown that Wilson had been convicted in 1983 of
    involuntary manslaughter, a felony.
    The evidence further proved that on April 26, Jerry Morgan,
    Brown’s landlord, had notified Brown that he and his family were
    to vacate their residence on May 26 for nonpayment of rent.
    Grogan’s store was robbed on the morning of May 25.      Between 7:00
    and 7:30 on the morning of May 25, Morgan drove by Brown’s
    residence and noticed that his car was not there.      Morgan
    testified that before the robbery, Brown had no money.
    1
    Brown asserts that his counsel impeached Dodd’s testimony.
    On cross-examination, Dodd confirmed that after the robbery he
    told investigators he remembered a hole in the car’s gas tank
    like the hole in the defendant’s car. Assuming that Dodd was
    referring to a hole in the gas cap cover, counsel for Brown
    asked Dodd if he had a view of that side of the vehicle on the
    morning of the robbery. Dodd admitted that he had no view of
    that side of the vehicle, but clarified that he was referring to
    the rusted-out hole in the vehicle’s fender rather than the hole
    in the gas cap.
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    However, Renee Martin testified that on May 26 at 1:30 p.m.,
    Brown and his wife rented a trailer from her and for a security
    deposit and one-week’s rent Brown’s wife paid $350 with three $100
    bills and one fifty dollar bill.    Then, on June 8, she paid $250
    in rent with two $100 bills and other denominations.
    Jesse Norris, a convicted felon who was in jail with the
    defendant after the robbery, testified that Brown admitted to him
    that he committed the robbery.    Brown told Norris that he hit
    Grogan with a tire iron, took his wallet, and left the store.
    Brown also said that as he turned his car around, several people
    drove past him.   He noted that he had removed the tags from the
    vehicle to avoid identification and had thrown the tire iron into
    the water.   Brown had asked Norris whether stains and fingerprints
    could be taken from a tire iron that had been under water.      Brown
    also asked Norris whether he knew how to remove a distinctive rust
    spot from a vehicle.
    During rebuttal, Brown’s wife testified that “things weren’t
    going very well” regarding their marriage.      On cross-examination
    the Commonwealth asked her whether she ever had “any problem with
    what [Brown] did with the money that he did have.”      When she
    responded that she did not, the Commonwealth asked whether she
    recalled making a statement to Renee Martin regarding her concerns
    about how her husband spent money.       When she replied that she did
    not recall, the Commonwealth asked:      “Did you tell her [Brown] was
    spending the money on cocaine?”    Over Brown’s objection, and
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    pursuant to the trial court’s ruling, the Commonwealth re-phrased
    the question:    “Did you ever tell Renee Martin that your husband,
    Kenny, was spending money, family money, on cocaine?”      Brown’s
    wife did not deny the statement but could not recall having ever
    made it.   The trial court cautioned the jury not to consider the
    statement as evidence of drug use but only with regard to its
    impact, if any, on the witness’ credibility.    The Commonwealth did
    not thereafter introduce evidence from Renee Martin that Brown’s
    wife had stated that Brown was spending family money on cocaine.
    ANALYSIS
    Failure to Disclose Exculpatory Evidence
    “[S]uppression 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, irrespective of the
    good faith or bad faith of the prosecution.”    Brady v. Maryland,
    
    373 U.S. 83
    , 87 (1963).    “[A] person convicted of a felony . . .
    shall not be incompetent to testify, but the fact of conviction
    may be shown in evidence to affect his credit.”    Able v.
    Commonwealth, 
    16 Va. App. 542
    , 546, 
    431 S.E.2d 337
    , 339 (1993)
    (quoting Code § 19.2-269).    “Favorable 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.    A “reasonable probability” is a probability
    sufficient to undermine confidence in the outcome.’”       Soering v.
    Deeds, 
    255 Va. 457
    , 464, 
    499 S.E.2d 514
    , 517 (1998) (quoting
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    United States v. Bagley, 
    473 U.S. 667
    , 682 (1985)).   Therefore,
    Brown “must show that when the case is evaluated in the context of
    the entire record, including the omitted evidence, a jury would
    have entertained a reasonable doubt” as to Brown’s guilt.      Id.
    The Commonwealth violated the court’s discovery order by
    failing to reveal Wilson’s prior convictions.   Had the
    Commonwealth revealed Wilson’s conviction for involuntary
    manslaughter, Brown could have impeached Wilson’s credibility with
    that information.   However, we find that there is no reasonable
    probability that had the conviction been disclosed, the jury would
    have come to a different conclusion.   Therefore, the trial court
    did not err in denying the motion for a new trial.
    Wilson’s testimony that he saw Brown’s car at Grogan’s store
    on the morning of the robbery was circumstantial evidence which
    corroborated the other overwhelming evidence of Brown’s guilt.
    Moreover, the testimony was cumulative of Dodd’s testimony who
    also identified Brown’s vehicle.   Furthermore, Wilson’s
    identification of Brown’s car was much less incriminating than
    Grogan’s and Dodd’s testimony identifying Brown.   Additional
    testimony made the evidence of guilt overwhelming:    Norris
    testified that Brown confessed to him; Moore testified that prior
    to the robbery Brown had no money; and Martin testified that after
    the robbery Brown’s wife had a large sum of cash in $100 bills,
    the same denomination taken with Grogan’s billfold.   Thus, absent
    Wilson’s testimony, we find the Commonwealth’s evidence of Brown’s
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    guilt to be overwhelming on both charges.   Accordingly, we find
    that the trial court did not err in denying Brown’s motion for a
    new trial.
    Prior Inconsistent Statement
    “On appeal[,] the denial of a motion for a mistrial will not
    be overruled unless there exists a manifest probability that the
    denial of a mistrial was prejudicial.”   Harward v. Commonwealth,
    
    5 Va. App. 468
    , 478, 
    364 S.E.2d 511
    , 516 (1988).   “If a witness
    gives testimony that is inconsistent with a prior statement, or
    testifies that he does not recall making the prior statement, a
    sufficient foundation for impeachment has been laid, and opposing
    counsel may cross-examine the witness as to the inconsistency.”
    Smith v. Commonwealth, 
    15 Va. App. 507
    , 511, 
    425 S.E.2d 95
    , 98
    (1992).
    Evidence establishing that the Browns were in pressing need
    of money was relevant to prove that Kenneth Edward Brown had a
    motive to commit the crimes.   The Commonwealth introduced evidence
    showing that the Browns lacked sufficient financial resources to
    pay their rent prior to the robbery.   The defendant offered his
    wife’s testimony in rebuttal to prove that despite some financial
    difficulty, they had sufficient income prior to the robbery.   In
    her rebuttal testimony, Paula Brown accounted for the money that
    the Browns spent immediately after the robbery and testified that
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    the money was under her control prior to and during the time when
    the Commonwealth alleged defendant obtained the money by robbing
    Grogan’s store.
    In cross-examining Paula Brown, the Commonwealth asked her
    whether she had problems with the way her husband spent money.    In
    response, she testified that she had no complaints regarding how
    her husband spent their money.    The Commonwealth then attempted to
    impeach her by asking, “Did you ever tell Renee Martin that your
    husband, Kenny, was spending . . . family money, on cocaine?”
    By asking this question, the Commonwealth sought to elicit
    testimony tending to impeach Paula Brown in two ways.   First, the
    Commonwealth sought to refute the substance of her prior testimony
    by having her acknowledge that her husband was financially
    irresponsible and had depleted family resources.   Second, the
    Commonwealth sought to impeach her credibility as a witness by
    proving that she had made a prior statement inconsistent with her
    testimony under oath.
    The Commonwealth’s question called for information relevant
    to establish the lack of funds as a motive to commit the crimes.
    However, in order for the trial court to determine whether the
    question was proper, the trial court had to weigh the probative
    value of the evidence against its prejudicial impact.   See Cumbee
    v. Commonwealth, 
    219 Va. 1132
    , 1137-38, 
    254 S.E.2d 112
    , 116
    (1979).
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    Clearly, the question had a prejudicial effect in that it
    implied that Brown used cocaine.   Here, the trial court had no
    opportunity to weigh the probative value against the prejudicial
    effect because the Commonwealth had asked the question in the
    jury’s presence.   The trial court, apparently assuming that Paula
    Brown would admit having made the statement, admonished the jury
    only to consider the fact that she may have made the statement to
    the extent that it impeached her testimony and credibility.     The
    judge instructed the jury not to consider her statement as
    evidence of Brown’s drug use and in doing so, the judge limited
    the question’s prejudicial effect.      A jury is presumed to follow a
    judge’s instruction regarding the limitation placed on a specific
    piece of evidence, see Lawson v. Commonwealth, 
    13 Va. App. 109
    ,
    112, 
    409 S.E.2d 466
    , 467 (1991), and nothing in the record rebuts
    the presumption that the jury followed the judge’s admonition.
    Additionally, Paula Brown did not acknowledge having made the
    prior statement; she replied instead, that she did not recall
    having made the statement.   Although the question called for a
    potentially prejudicial response, the response was not
    prejudicial, and the Commonwealth never introduced the allegedly
    prior inconsistent statement.   Thus, assuming without deciding
    that the question was more prejudicial than probative and should
    have been disallowed, the trial judge’s procedure for handling the
    question was nevertheless harmless.      Because the evidence of guilt
    was overwhelming, and the trial court instructed the jury to
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    disregard any prejudicial impact from the question, we conclude
    that the jury was not affected by the question.    Therefore, we
    cannot say that there is a manifest probability that the denial of
    appellant’s motion for a mistrial was prejudicial.
    Sufficiency
    “On appeal, we review the evidence in the light most
    favorable to the Commonwealth, granting to it all reasonable
    inferences fairly deducible therefrom.”   Martin v. Commonwealth,
    
    4 Va. App. 438
    , 443, 
    358 S.E.2d 415
    , 418 (1987).
    As noted, we find the Commonwealth’s evidence was
    overwhelming, thus, it was sufficient to convict Brown of
    malicious wounding and robbery.   Grogan identified Brown as the
    assailant, and two other witnesses placed Brown’s vehicle at the
    crime scene.   Grogan testified that when he regained
    consciousness, his wallet containing approximately ten $100 bills
    was missing.   The evidence showed that Brown was experiencing
    financial difficulty, that the crime occurred the day before he
    and his family had to vacate their leased residence for
    non-payment of rent, and that on the afternoon after the robbery
    the Browns entered into a new lease paying the security deposit
    and one-week’s rent in $100 bills.   While in jail, Brown admitted
    to Norris that he struck Grogan with a tire iron and stole
    Grogan’s billfold.
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    At trial, Brown denied guilt and produced evidence to impeach
    the credibility of Grogan, Wilson, 2 Dodd, and Norris.   However,
    “[t]he weight which should be given to evidence and whether the
    testimony of a witness is credible are questions which the fact
    finder must decide.”   Bridgeman v. Commonwealth, 
    3 Va. App. 523
    ,
    528, 
    351 S.E.2d 598
    , 601 (1986).   The evidence is not inherently
    incredible and is sufficient to support the convictions.
    In conclusion, we find that the Commonwealth’s failure to
    disclose Wilson’s conviction record was not material to the jury’s
    conviction, that the trial court did not err by allowing the
    Commonwealth to question Paula Brown regarding her prior
    inconsistent statement, and that the evidence was sufficient to
    support the convictions.   Accordingly we affirm the convictions.
    Affirmed.
    2
    On appeal, Brown asserts that Wilson’s evidence was
    unimpeached. However, on cross-examination, he admitted that he
    did not see the car for very long, that he was really only
    concerned with the missing tags, that he did not pay attention
    to the make or model of the car, that he did not remember
    whether the car had a roof rack, and that the allegedly
    identifying rust was not an uncommon feature of cars in the
    area.
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