Tyrone Oscar Jackson, etc. v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Hodges
TYRONE OSCAR JACKSON
s/k/a TYRONE R. JACKSON
MEMORANDUM OPINION * BY
v. Record No. 1558-94-1 JUDGE LARRY G. ELDER
DECEMBER 5, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Andrew M. Sacks (Sacks, Sacks & Imprevento, on
brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Tyrone Jackson (appellant) appeals his conviction for
abduction with intent to defile in violation of Code § 18.2-48.
Appellant contends (1) insufficient evidence supported his
conviction and (2) the trial court erred in overruling his motion
to set aside the verdict, where the Commonwealth failed to
produce exculpatory evidence prior to trial. Because we agree
with appellant's second contention, we reverse the conviction and
remand the case for further proceedings if the Commonwealth be so
advised.
Viewed in the light most favorable to the Commonwealth, the
facts show that the fifteen-year-old victim was talking on a pay
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
phone at a convenience store in Virginia Beach in the early
evening hours of January 4, 1993. Appellant overheard the
victim's phone conversation, in which the victim discussed with
his girlfriend how the two could obtain money for her abortion.
The victim testified he was desperate for money at the time and
"would have done almost anything for money."
Appellant interrupted the phone conversation and told the
victim he would pay him to help appellant paint and move
furniture. The victim accepted the offer and agreed to accompany
appellant in appellant's car to a bank so that the victim could
be paid in advance. The victim testified, "I didn't see no [sic]
problem with it because I am a trusting person."
After the two parties entered appellant's vehicle, appellant
revealed he did not have his bank card for the automatic teller
machine and said he needed to retrieve the card from his
apartment. Once at the apartment, the victim willingly assisted
appellant in bringing luggage from appellant's car into the
apartment. After appellant and the victim entered appellant's
apartment, the two engaged in general conversation. The victim
testified appellant then went to his bedroom and asked the victim
to join him so that he would not "have to yell across the
apartment" to continue their conversation.
When the victim entered the bedroom, appellant turned on a
television and began playing a pornographic video. The victim
testified he felt uncomfortable and placed a fake phone call to
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his girlfriend to occupy the time. Appellant then asked the
victim to sit on his water bed; when the victim did so, appellant
pushed him back onto the bed. The victim testified appellant
pinned him to the bed and ignored his requests to leave him
alone. When appellant removed the victim's penis from his pants,
the victim blacked out, only to awaken to find appellant's mouth
on his penis. After the victim ejaculated, he dressed and ran
out of appellant's apartment, punched the glass out of a fire
extinguisher box to secure the fire extinguisher for protection,
went to a neighbor's house, and called the police.
The victim also testified as to the following facts: prior
to the sexual encounter, appellant did not threaten or intimidate
him; he willingly entered appellant's car; he had no reason to
fear appellant up until the time appellant pushed him onto the
bed; appellant never concealed his true name or identity; and
appellant did not try to prevent him from leaving the apartment
prior to the sexual encounter.
Appellant admitted he met the victim at the convenience
store; he offered to pay the victim to paint and move some
furniture in his apartment; and he offered to find the victim a
job at the restaurant where he was employed. Appellant testified
the victim voluntarily accepted an invitation to his apartment to
allow him to get some money to serve as an advance payment.
Appellant testified that nothing sexual occurred in the apartment
and that he never deceived the victim in any way. Appellant
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testified the victim left appellant's apartment "to get his
wallet" from appellant's car but then never returned. There was
no evidence that appellant again offered, once the parties were
in his apartment, to get his bank card or to go to the bank.
A jury acquitted appellant on the charge of forcible sodomy,
but convicted him of abduction with intent to defile. After
judgment, appellant sought a new trial on the ground the
Commonwealth failed to produce exculpatory evidence in the form
of the victim's January 4, 1993 statement to police. Appellant
sought to show the victim made inconsistent statements to the
police, which were both exculpatory and material to the results
of the trial. The trial court overruled the motion.
We hold that the trial court erred in failing to set aside
the verdict after it learned the Commonwealth failed to produce
certain pieces of exculpatory and material evidence. Well-
accepted principles of law guide our analysis.
Fairness to the defendant requires the
Commonwealth's pretrial production of exculpatory
evidence under the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. Brady v.
Maryland, 373 U.S. 83, 87 (1963). And evidence that
impeaches the credibility of a Commonwealth witness is
exculpatory evidence. Robinson v. Commonwealth, 231
Va. 142, 150, 341 S.E.2d 159, 164 (1986)(citing United
States v. Bagley, 473 U.S. 667, 676-77 (1985)).
Ramdass v. Commonwealth, 246 Va. 413, 420, 437 S.E.2d 566, 570
(1993)(emphasis added), vacated on other grounds, __ U.S. ___,
114 S. Ct. 2701 (1994)(other subsequent history omitted). Not
only must such evidence be exculpatory, but it must also be
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material. See Mackenzie v. Commonwealth, 8 Va. App. 236, 244,
380 S.E.2d 173, 177 (1989). "Exculpatory evidence is material if
there is a reasonable probability that the outcome of the
proceeding would have been different had the evidence been
disclosed to the defense. A 'reasonable probability' is one
which is sufficient to undermine confidence in the outcome of the
proceeding." Bowman v. Commonwealth, 248 Va. 130, 133, 445
S.E.2d 110, 112 (1994)(citation omitted). "If the defendant does
not receive such evidence, or if the defendant learns of the
evidence at a point in the proceedings when he cannot effectively
use it, his due process rights as enunciated in Brady are
violated." Id., 445 S.E.2d at 111 (citation omitted).
In this case, appellant filed a pretrial motion for
discovery pursuant to Rule 3A:11, requesting, inter alia,
production of any exculpatory evidence. Despite this request,
the Commonwealth did not provide appellant with the victim's
January 4, 1993 statement to police, even after the preliminary
hearing, "presumably because the prosecution determined that the
report did not contain material exculpatory evidence." Id., 445
S.E.2d at 112.
Appellant argues he was denied the opportunity at trial to
explore material inconsistencies between the victim's preliminary
hearing and trial testimony and the statement given to police on
January 4, 1993. Appellant points to four separate material
issues.
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First, at the preliminary hearing and again at trial, the
victim testified he did not know how his shoes were removed.
However, in his January 4, 1993 statement to police, the victim
stated appellant removed his shoes.
Second, the victim testified at the preliminary hearing and
the trial that appellant pulled down his pants and two pairs of
underwear and then performed oral sodomy upon him. However, in
his January 4, 1993 statement to police, the victim stated that
although appellant pulled the victim's pants down, his underwear
remained in place, and appellant stuck his hand down the
underwear and pulled the victim's penis out.
Third, the victim testified at trial that appellant first
pinned him to the bed and then pulled up his shirt and felt his
stomach. However, in his January 4, 1993 statement to police,
the victim stated this event occurred before appellant pinned him
to the bed.
Fourth, the victim testified at the preliminary hearing and
the trial that he "blacked out" during the alleged sodomy
encounter and therefore could not remember what transpired during
the alleged sodomy. However, in his January 4, 1993 statement to
police, the victim never mentioned any such blackout and never
indicated he could not recollect certain portions of the sexual
encounter.
In determining whether the trial court properly ruled, we
are reminded that:
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Our role in assessing whether the availability of this
information would have produced a different result is
difficult. We must look at the totality of the
circumstances with an awareness of the "difficulty of
reconstructing in a post-trial proceeding the course
that the defense and the trial would have taken had the
defense not been misled by the prosecutor's incomplete
response" to the pre-trial request for Brady
information.
Bowman, 248 Va. at 134, 445 S.E.2d at 112 (citation omitted).
In this case, the trial court incorrectly overruled
appellant's motion with respect to the four pieces of exculpatory
and material evidence. Appellant's inability to impeach the
victim's in-court testimony concerning these pieces of
information affected appellant's right to a fair trial.
Specifically, the Commonwealth deprived appellant of his right to
fully explore the one issue which played a critical role in the
trial--the victim's credibility. One fair inference to draw from
the jury's inconsistent verdicts is that the jury simply did not
believe the victim's testimony as it related to the act of
sodomy, but did believe that appellant deceived the victim into
returning to his apartment to defile him. If appellant had been
afforded the opportunity to fully cross-examine the victim
concerning the four pieces of information the Commonwealth failed
to disclose, the jury very well may have decided to also acquit
appellant of abduction with intent to defile. In other words,
there is a "reasonable probability" that these pieces of
exculpatory information might have proven to be the proverbial
"straw that broke the camel's back."
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As the trial court recognized, the jury's determination of
appellant's guilt or innocence hinged almost solely on the
credibility of appellant and the victim. Based upon the record
before us, and in light of the verdicts rendered, the
Commonwealth's failure to produce these four pieces of
impeachment evidence undermines our confidence in the jury's
verdict convicting appellant of abduction with intent to defile.
We therefore hold that because this evidence was exculpatory and
material and was withheld from appellant in violation of Brady,
appellant is entitled to a new trial.
Accordingly, we reverse the conviction and remand for
further proceedings if the Commonwealth be so advised.
Reversed and remanded.
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