Michael Allen v. Commonwealth of Virginia ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia
MICHAEL ALLEN
MEMORANDUM OPINION * BY
v. Record No. 1201-98-2 JUDGE JERE M. H. WILLIS, JR.
JUNE 25, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Gail Starling Marshall for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Michael Allen was convicted in a jury trial of
(1) first-degree murder, in violation of Code § 18.2-32; (2) use
of a firearm during the commission of murder, in violation of Code
§ 18.2-53.1; (3) two counts of malicious wounding, in violation of
Code § 18.2-51; and (4) two counts of use of a firearm in the
commission of malicious wounding, in violation of Code
§ 18.2-53.1. On appeal, he contends that by failing to provide
the criminal record of a witness until direct examination at
trial, the Commonwealth denied him his right to a fair trial. In
support of his position, Allen argues (1) that the prosecutor was
under a clear ethical, statutory, and constitutional duty to make
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
timely disclosure of the witness' prior criminal convictions,
(2) that the prosecutor acted deliberately and intentionally in
violation of his duties and in breach of Allen's constitutional
rights, and (3) that the prosecutor's method of "disclosure" was
yet another legal violation. Allen sought from the trial court no
relief based on these contentions. Thus, his contentions are
procedurally barred. Rule 5A:18. We affirm the judgment of the
trial court.
Prior to trial, Allen filed a motion for exculpatory
evidence that expressly sought, among other things, disclosure
of "all felony convictions and convictions of crimes of moral
turpitude for any prosecution witnesses on the grounds that such
information might affect their credibility or testimony . . . ."
No order was tendered or entered on that motion. The
Commonwealth informed Allen it would not produce the exculpatory
evidence prior to trial because it wanted to protect the names
of its witnesses. Prior to the start of trial, the following
discussion ensued:
The Clerk: Is the defendant ready, Mr.
Easterly?
Mr. Easterly [Allen's Attorney]: Yes,
ma'am. Judge, before the Clerk reads the
charges we have a preliminary motion.
The Court: What's that?
Mr. Easterly: Judge, I made a motion for
exculpatory evidence in this case. I
believe I filed it sometime last week. And,
Mr. Wainger [Asst. Commonwealth's Attorney]
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advised me that the substance of the motion
was that I asked for the criminal records of
any witnesses and any agreements or anything
that might have induced any witness to
testify on behalf of the Commonwealth. And,
Mr. Wainger told me he would be forthcoming
in that information but he would not provide
it to me until trial because he did not want
to reveal the names of his witnesses.
The Court: I don't think he has to reveal
the names of his witnesses.
Mr. Easterly: Well, Judge, I agree with
you. I am not entitled to the names of his
witnesses but I am entitled to use the
exculpatory or potentially exculpatory --
The Court: Well, if you've got a record I
think he's supposed to furnish that. And,
it's hard to do besides say he has been
convicted of a felony.
Mr. Wainger: I complied in every way, Your
Honor, with my duties.
Mr. Easterly: Judge, I realize what he is
trying to do is protect his witnesses, but
without knowing who his witnesses are that
information is useless to me. I can't
investigate it and I'm certainly not
prepared to use it.
The Court: In a criminal case you don't get
the witnesses. Sometimes they don't show up
if the other side has their names. I have
never given names of witnesses.
Mr. Easterly: All right. If you will note
my exception.
The Court: All right.
At trial the Commonwealth called as a witness William Page,
who testified that Allen shot Ross. The Commonwealth then
questioned Page concerning his criminal record. Page initially
testified that he had one felony conviction and one misdemeanor
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conviction involving moral turpitude. However, upon further
questioning by the Commonwealth, Page corrected his testimony as
follows:
Q [Commonwealth]: Do you have any felonies
on your record?
A [Page]: Yes, I do.
Q: How many?
A: I have one felony
Q: One or two?
A: Two felonies.
* * * * * * *
Q: Okay. Any misdemeanors involving lying,
cheating, or stealing?
A: I have a misdemeanor.
* * * * * * *
Q: Did you have one in '84?
A: Yes.
Q: A conviction?
A: Yes.
Allen did not move for the exclusion of Page's testimony.
He did not cross-examine Page concerning the convictions. He
did not move for a continuance. He did not move for a mistrial.
While he complained to the trial court of the Commonwealth's
refusal to disclose the witness' criminal record prior to trial,
he sought no consequential relief. Thus, the trial court denied
no requested relief.
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Allen contends on appeal that the Commonwealth violated its
duty to make a timely disclosure of Page's prior criminal
record, see Brady v. Maryland, 373 U.S. 83 (1963), and that he
was prejudiced as a result. He has demonstrated no prejudice.
Three other witnesses testified that Allen shot the victim.
Furthermore, while Allen complained of the Commonwealth's
failure to disclose this information, he sought no relief from
the court. Allen never moved to exclude Page's testimony, never
moved for a continuance, never moved for a mistrial. He sought
no relief from the trial court, save noting his exception for
the record. Because he requested no relief, the trial court
denied no relief. He has presented to us nothing upon which a
claim of trial court error can be based. He cannot seek relief
for the first time in this Court. Rule 5A:18. The record
presents no basis for invoking the ends of justice exception to
the operation of the rule.
The judgment of the trial court is affirmed.
Affirmed.
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