Wayne Rush Meadows v. Commonwealth of Virginia , 35 Va. App. 298 ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Humphreys
Argued at Richmond, Virginia
WAYNE RUSH MEADOWS
OPINION BY
v. Record No. 0543-00-2 JUDGE ROBERT J. HUMPHREYS
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Lloyd C. Sullenberger, Judge
Charles L. Weber, Jr., for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Wayne Rush Meadows appeals his conviction, after a jury
trial, of two counts of possession of a firearm by a felon. 1 The
sole issue on appeal is whether the trial court erred in allowing
the Commonwealth to admit testimony of an oral statement given by
appellant to investigators, even though the statement had not been
provided in written form to appellant during pretrial discovery.
For the reasons that follow, we affirm the convictions.
1
The first firearm charge was set forth in the indictment
as having occurred on or about October 19, 1998. The second
firearm charge was set forth as having occurred several weeks
later, on or about November 24, 1998. Appellant was also charged
with two counts of statutory burglary and two counts of grand
larceny. Appellant was tried for these charges in a separate
trial, and they are not a subject of this appeal.
I. Background
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that the home of Ronald Wise
was burglarized on October 19, 1998, while he was away at work.
Upon returning, Wise found his home "ransacked" and found that
eleven firearms and a police scanner were missing. The screen
to the living room window was out of place and the front door
was locked, as it had been when he left for work that morning.
There was also a bow, still leaning against the front door,
where it had been left that morning.
The following day, Ron Meadows, appellant's brother, told
Wise he had found Wise's .45 caliber Ruger pistol and a police
scanner in a shed on his property. Appellant lived with Meadows
at that time and also knew Wise and had spent time at Wise's
home.
On or about October 20, 1998, Orange County Investigator
Danny Call arrested appellant on unrelated charges. After
administering Miranda warnings to appellant, Call asked appellant
if he would speak to him about his knowledge concerning the
burglary. Appellant agreed. However, Call was called away to
- 2 -
assist in recovering the Ruger and the police scanner. While
Call was gone, appellant provided a written statement to Captain
Brooks. In the statement, appellant stated that he saw an
individual named Dennis Booth coming out of Wise's home on the
day of the burglary, holding an armload of weapons. Appellant
said that he told Booth he would keep silent about the burglary
if Booth would agree to give him "half the money [sic]." Booth
ultimately gave appellant the Ruger, the police scanner and a
rifle. Appellant stated, "I did not touch the guns because I'm
a felon, I only touched the .45 caliber with a rag."
Investigator Call testified that when he returned to the
police station, he re-advised appellant of his rights and
continued to question him. At that time, appellant told Call he
had seen Booth enter Wise's house through a window and leave
through the front door, carrying the guns. Call questioned
appellant about what was inside the house, and appellant told him
there was a bow leaning against the front door. Appellant said
Wise told him about the bow. Call then telephoned Wise, who
informed him he had not mentioned the bow to appellant. Call
then confronted appellant with this information, and appellant
became angry and accused Call of "tricking him."
Appellant objected to the questioning of Call concerning
these statements. Appellant claimed he had requested all
statements during discovery, pursuant to Rule 3A:11, and that
- 3 -
the statement had not been provided. The Commonwealth responded
that they had indeed provided the substance of the statement to
appellant's counsel during oral discussions prior to trial but
agreed the statement had not been reduced to writing. Appellant
conceded there was some discussion of inconsistencies in
Meadows' initial statement but appellant's counsel indicated he
could recall few details of that conversation with the
prosecutor, except with regard to the inconsistencies concerning
the location of the bow. The trial court overruled the
objection, finding that the Commonwealth had sufficiently
complied with Rule 3A:11 in supplying the information to
appellant orally.
II. Analysis
"There is no general constitutional right to discovery in a
criminal case." Henshaw v. Commonwealth, 19 Va. App. 338, 342,
451 S.E.2d 415, 417 (1994) (citation omitted). Rule
3A:11(b)(1), which governs the discovery of statements by the
accused in criminal cases, provides:
Upon written motion of an accused a court
shall order the Commonwealth's attorney to
permit the accused to inspect and copy or
photograph any relevant (i) written or
recorded statements or confessions made by
the accused, or copies thereof, or the
substance of any oral statements or
confessions made by the accused to any law
enforcement officer, the existence of which
is known to the attorney for the
Commonwealth, and (ii) written reports of
autopsies, ballistic tests, fingerprint
- 4 -
analyses, handwriting analyses, blood, urine
and breath tests, other scientific reports,
and written reports of a physical or mental
examination of the accused or the alleged
victim made in connection with the
particular case, or copies thereof, that are
known by the Commonwealth's attorney to be
within the possession, custody or control of
the Commonwealth.
The issue of whether Rule 3A:11(b)(1) requires the
Commonwealth to reduce the substance of an oral statement to
writing is one of first impression. Rule 3A:11(b)(1) allows the
accused to "inspect and copy or photograph" the items described
thereafter. The term "inspect" is defined as "to view closely
and critically," Webster's Third New International Dictionary
1170 (1993); "[a] careful examination of something," Black's Law
Dictionary 799 (7th ed. 1999). This term clearly modifies the
phrase requiring the Commonwealth to furnish the accused with
the "substance of any oral statements or confessions made by the
accused to any law enforcement officer." Thus, while
recognizing potential difficulties in "critically analyzing"
what amounts to a paraphrase of a statement made by a defendant,
we hold that Rule 3A:11(b)(1) requires the Commonwealth to
reduce the substance of oral statements to writing, so they can
be properly inspected, copied or photographed by the accused, as
provided for in the Rule. Nevertheless, "[i]n Virginia,
non-constitutional error is harmless '[w]hen it plainly appears
from the record and the evidence given at the trial that the
- 5 -
parties have had a fair trial on the merits and substantial
justice has been reached.'" Lavinder v. Commonwealth, 12 Va.
App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (citation omitted)
(emphasis in original). Consequently, a criminal conviction
will not be reversed if "it plainly appears from the record and
the evidence given at the trial that the error did not affect
the verdict. An error does not affect a verdict if a reviewing
court can conclude, without usurping the [finder of fact's] fact
finding function, that, had the error not occurred, the verdict
would have been the same." Id. (citation omitted).
Insofar as is relevant here, to prove a violation of Code
§ 18.2-308.2, the Commonwealth must establish that the accused
was a convicted felon, that the accused possessed an object
manufactured for the purpose of expelling a projectile by an
explosion, and that the object was operational as a firearm or
was readily capable of being made operational. See Gregory v.
Commonwealth, 28 Va. App. 393, 400, 504 S.E.2d 886, 889 (1998);
see also Williams v. Commonwealth, 33 Va. App. 796, 806-07, 537
S.E.2d 21, 26 (2000). In his original written statement, which
had been provided to appellant in discovery and which was
received into evidence with no objection from appellant,
appellant conceded he was a convicted felon, that he possessed
the firearm, and, further, that he knew his status as a
- 6 -
convicted felon barred him from doing so. 2 Thus, the testimony
concerning the oral statement made to Call was inconsequential
to appellant's conviction for possession of a firearm by a
convicted felon.
Accordingly, we find that any potential error in admitting
the testimony of Call pertaining to appellant's oral statement
was harmless, and we affirm the judgment. See Galbraith v.
Commonwealth, 18 Va. App. 734, 742, 446 S.E.2d 633, 638 (1994)
(harmless error in a trial does not require reversal of the
judgment). 3
Affirmed.
2
Appellant raises no argument concerning the operability of
the Ruger pistol.
3
In light of our finding of harmless error, we need not
address whether substantial compliance by the Commonwealth in
conveying the statement orally to defense counsel, while not
reducing it to writing, would necessarily require that a trial
court invoke any of the potential sanctions for discovery
violations.
- 7 -