Larry Marvin Diggs v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
LARRY MARVIN DIGGS
MEMORANDUM OPINION * BY
v. Record No. 1894-96-4 JUDGE JOHANNA L. FITZPATRICK
JUNE 3, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
Thomas F. Koerner, Jr., for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On April 2, 1996, Larry Marvin Diggs (appellant) was
convicted in a jury trial of two counts of distribution of
cocaine. On appeal, he argues that the trial court erred in
refusing to compel his brother, Stanley Diggs, to pull up his top
lip in order to show the jury his teeth. For the reasons that
follow, we affirm the judgment of the trial court.
I.
On April 25, 1995, Officer Richard Duranko, Jr. (Duranko)
was working undercover investigating drug transactions for the
Fairfax County Police Department. With the assistance of an
informant, a "buy" was arranged for approximately 9:00 p.m. at a
well-lit 7-Eleven store parking lot located on Richmond Highway
in Fairfax County.
At the appointed time, appellant and approximately five
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
other African-American males met Duranko and the informant in the
parking lot. Appellant got out of his vehicle and approached the
passenger side of Duranko's car where the informant was seated.
He "cussed [the informant] out" for bringing a "white man" to the
area to buy drugs. Appellant then called his brother, Stanley
Diggs (Stanley), over to the car. Stanley gave appellant the
amount of cocaine Duranko had requested previously, and appellant
passed the cocaine to the informant, who then gave it to Duranko.
Duranko paid $175 directly to appellant for the cocaine. The
time to conduct this transaction was approximately five minutes.
During his investigation, Duranko examined photographs of
both appellant and his brother, Stanley. Duranko obtained the
license tag number of the car used by appellant in the
transaction and identified appellant as the person from whom he
purchased the cocaine. He confirmed appellant's identity by
matching the registered owner of the car with appellant's
photograph and driver information.
Another drug buy involving appellant was arranged for May 1,
1995. However, when Duranko arrived at the meeting place, he
suspected that appellant was going to rob him, so he left without
purchasing any cocaine. On May 2, 1995, at approximately 10:50
p.m., Duranko again met with appellant at a well-lit convenience
store parking lot also located on Richmond Highway, negotiated a
price of $180, and purchased crack cocaine directly from
appellant. The time to conduct this transaction was
- 2 -
approximately three minutes.
The informant arranged for yet another exchange to occur on
May 9, 1995. Duranko met appellant at the same convenience store
at approximately 9:00 p.m. Appellant got into Duranko's vehicle
for the exchange, and, after negotiating, Duranko paid him $175
for the drugs. The time to conduct this transaction was
approximately five minutes.
On May 19, 1995, police executed a search warrant at
appellant's residence. Appellant and his brother Stanley both
lived at this address. When the search warrant was executed,
appellant fled upon seeing the police officers. He turned
himself in four days later.
At trial, Duranko was the Commonwealth's sole witness, and
he testified that he had no doubt that appellant was the man who
sold him cocaine on all three occasions. However, on
cross-examination, Duranko admitted that, at appellant's
preliminary hearing, he mentioned having noticed the person who
sold him cocaine had a "gap tooth."
Appellant testified that he was present at the 7-Eleven
store on April 25, 1995, but denied selling the cocaine. He
stated that his cousin was the one who actually sold the drugs.
Additionally, he testified that on May 2 and May 9, he was at
home with his brother, Stanley Diggs. He admitted that he ran
out of the apartment building at the time the search warrant was
executed, but denied knowing that the men he ran from were police
- 3 -
officers.
Appellant called Stanley to testify. However, Stanley
asserted his Fifth Amendment right against self-incrimination.
Because appellant had no "gap" in his teeth, he requested the
trial court to compel Stanley to show his teeth to the jury. The
court granted the request, and appellant instructed Stanley to
"smile" for the jury, and to "open your mouth a little bit
wider." Stanley complied. However, when appellant additionally
proposed that Stanley raise his upper lip to further exhibit his
teeth to the jury, the trial court refused, stating, "Then that's
as much as I'm going to require him to do. He's opened his
mouth. That's as much as I'm going to require."
II.
Appellant argues that the trial court erred in limiting his
presentation of relevant evidence, because the "gap" evidence
tended to prove that someone other than appellant committed the
crimes. Thus, appellant contends that the court erred in
refusing to compel the witness to lift his lip to further show
his teeth to the jury. Appellant's argument is without merit.
An accused has the guaranteed right to present evidence
pursuant to the Virginia Constitution, Article I, Section 8 ("in
criminal prosecutions a man hath a right to . . . call for
evidence in his favor"). "The right of an accused 'to call for
evidence in his favor' includes the right to procure
demonstrative evidence." Gibbs v. Commonwealth, 16 Va. App. 697,
- 4 -
699, 432 S.E.2d 514, 515 (1993) (quoting Cox v. Commonwealth, 227
Va. 324, 328, 315 S.E.2d 228, 230 (1984)). However, the
admission of demonstrative evidence lies within the sound
discretion of the trial court, and will not be disturbed on
appeal absent a showing of abuse. Mackall v. Commonwealth, 236
Va. 240, 372 S.E.2d 759 (1988), cert. denied, 492 U.S. 925(1989); Kehinde v. Commonwealth, 1 Va. App. 342, 338 S.E.2d 356(1986). "An appellant must demonstrate that the excluded
evidence is relevant and material and that the party was entitled
to have it introduced in order to establish on appeal that the
trial court erred by excluding it." Toro v. City of Norfolk, 14
Va. App. 244, 254, 416 S.E.2d 29, 35 (1992). The evidence is
material only if there is a reasonable probability that the
result of the proceeding would have been different. See, e.g.,
Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164
(1986).
The evidence in dispute, Stanley's "gap tooth," was not
material, because there was no reasonable probability that it
would have affected the end result of the proceeding. The trial
court directed Stanley to "smile" for the jury and the record
reflects that he did. Stanley was asked to open his mouth
"wider" and he did. The court commented to counsel that the
witness had, in fact, "opened his mouth." The trial court did
not abuse its discretion by refusing to compel Stanley to further
demonstrate his teeth to the jury.
- 5 -
Additionally, to require Stanley to contort his mouth would
have presented an unrealistic scenario of what Duranko would have
observed during the drug transactions. See, e.g., Duncan v.
Commonwealth, 2 Va. App. 717, 347 S.E.2d 539 (1986). Moreover,
at trial, Duranko did not describe Stanley as having a "gap
tooth," and no evidence suggested that appellant and Stanley look
alike. Duranko repeatedly testified that he had no doubt
"whatsoever" that he purchased cocaine from appellant. Appellant
himself testified that Stanley was "nowhere" near the drug
transaction on April 25 and that Stanley was home on May 2 and
May 9.
For the foregoing reasons, we hold that the trial court did
not abuse its discretion in limiting appellant's demonstrative
evidence. Accordingly, the judgment of the trial court is
affirmed.
Affirmed.
- 6 -