Jeremy Kent Lane v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Bray
Argued at Norfolk, Virginia
JEREMY KENT LANE
OPINION BY
v. Record No. 0788-94-1 JUDGE JERE M. H. WILLIS, JR.
JULY 25, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Alfred W. Whitehurst, Judge
Michael F. Fasanaro, Jr. (Abrons, Fasanaro &
Sceviour, on brief), for appellant.
Robert B. Condon, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his conviction of second degree murder,
Jeremy Kent Lane contends that the trial court erred in admitting
into evidence an oral statement by him that had not been
disclosed pursuant to Rule 3A:11. We find no error and affirm
the judgment of the trial court.
Pursuant to Rule 3A:11, the defense moved for disclosure of
"a summary of any and all oral statements made by the defendant."
In response, the Commonwealth's Attorney delivered to defense
counsel a copy of Officer Murphy's investigative notes and a
summary of Murphy's proposed testimony.
On June 20, 1993, shortly before 3:00 a.m., Lane stabbed
Christopher Russell in the parking lot of 1423 East Ocean View
Avenue in the City of Norfolk. Russell had gone to that address
to pick up his sister. Approaching Lane, Russell held up his
hands and said, "Look, all I want is my sister." Lane responded,
"Do you want a piece of this or a piece of me?" Lane then
stabbed Russell in the chest.
When Officer Murphy arrived on the scene, he saw Russell's
body on the ground and heard Lane arguing with Shane Houston.
Houston accused Lane of stabbing Russell. Murphy asked Lane to
sit in the police car while he investigated. After Murphy spoke
to the other witnesses, he placed Lane under arrest and advised
him of his Miranda rights. Murphy testified that when he later
returned to his car to complete an investigative report, Lane
said, "[H]e didn't know why people were accusing him of stabbing
Mr. Russell. He said that they were fighting. He said that
while they were fighting, that somebody had come running through
the parking lot, ran up and stabbed his friend and then took off
running, and he didn't know the identity of the person who did
the stabbing."
Lane's foregoing statement was not recited in Officer
Murphy's investigative notes and was not disclosed in discovery.
When asked why he had not set forth the statement in his notes,
Officer Murphy replied, "I just didn't write it in the notes. I
don't know why I didn't write it."
Lane initially defended the case on grounds of self-defense.
Accordingly, he initially admitted stabbing Russell, but
contended that he did so of necessity to save himself from
serious harm. He argues that the interjection into the case of
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his statement denying that he had stabbed Russell impeached his
credibility and jeopardized his defense. He argues that he was
surprised by the statement and was thus lured into an
unsuccessful defense. He argues that by failing to disclose the
statement in discovery, the Commonwealth's Attorney violated Rule
3A:11. He rejected the trial court's offer of a continuance and
declined to move for a mistrial, insisting that the proper
remedy was the exclusion of the statement. The trial court ruled
that it would admit the statement into evidence and would permit
Lane to challenge it by cross-examination. Lane contends that
the trial court erred in admitting the statement into evidence.
We disagree.
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 . . . any relevant (i) written or recorded
statements or confessions made by the accused . . . 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. . . .
The record is silent as to whether the Commonwealth's Attorney
knew of Lane's statement at the time discovery was made or at any
time prior to trial. Thus, the record provides no basis for a
determination whether the statement was actually "known to the
attorney for the Commonwealth." However, knowledge of that
statement is imputed to the Commonwealth. "[I]nformation known
to the police is information within the Commonwealth's knowledge
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and the prosecutor is obliged to disclose [it] regardless of the
state of his actual knowledge." Knight v. Commonwealth, 18 Va.
App. 207, 214, 443 S.E.2d 165, 169 (1994) (citation omitted).
Nevertheless, the record contains nothing to suggest that the
Commonwealth's Attorney withheld the statement intentionally.
Thus, it appears from the record that the statement was withheld
from discovery in violation of Rule 3A:11, but that this
violation was inadvertent, not intentional.
The relief to be granted upon a violation of Rule 3A:11
is within the discretion of the trial court, giving due
regard to the right of the accused to call for evidence
in his favor and to investigate and evaluate the
evidence in preparation for trial. In certain cases, a
court may ensure this right only by granting a
continuance to allow the accused an opportunity to
assess and develop the evidence for trial.
Frye v. Commonwealth, 231 Va. 370, 383-84, 345 S.E.2d 267, 277
(1986) (citations omitted). Lane declined the trial court's
offer of a continuance and declined to move for a mistrial. We
find no abuse of discretion in the trial court's admission of the
statement into evidence and its ruling that the effect of the
statement should be tested by cross-examination.
When a discovery violation does not prejudice the
substantial rights of the defendant, a trial court does
not err in admitting undisclosed evidence.
Davis v. Commonwealth, 230 Va. 201, 204, 335 S.E.2d 375, 377
(1985). Lane declined to move for a remedy that would have
permitted him to accommodate his defense to the discovered
statement. He sought only suppression of the truth. Under those
circumstances, the admission of the statement into evidence did
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not unjustly prejudice Lane's presentation of his defense.
The judgment of the trial court is affirmed.
Affirmed.
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