Charles Momodou Thomas, etc. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
CHARLES MOMODOU THOMAS, A/K/A
MOMODOU CHARLES THOMAS
OPINION BY
v. Record No. 2787-95-4 JUDGE RICHARD S. BRAY
APRIL 29, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Mark S. Thrash for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Charles Momodou Thomas (defendant) was convicted by a jury
of multiple felonies arising from several armed robberies and
related offenses committed in Arlington County. On appeal,
defendant complains that the trial court improperly permitted the
Commonwealth to impeach him through "Notice[s] of Alibi Defense,"
signed only by his counsel and filed pursuant to Rule
3A:11(c)(2). Finding no error, we affirm the convictions.
Prior to trial, defendant, by counsel, filed a "Notice of
Alibi Defense" with the court which represented that defendant
intended to "offer evidence" that he was at the residence of his
sister in Falls Church at the time of the alleged offenses.
Subsequently, defendant, again by counsel, lodged an "Amended
Notice of Alibi Defense," advising that he would assert an alibi
that he "was in touch . . . with his sister . . . from a public
telephone in . . . Falls Church," that she "picked him up . . .
from that location" and drove him to Washington, D. C., where he
"took a train . . . to New York." Neither notice was signed by
defendant.
During trial, defendant testified that he was in New York
the "whole day" of the crimes. When the prosecutor attempted to
impeach defendant using the prior alibi notices, defense counsel
objected, arguing that each set forth only "representation of
counsel -- what counsel believe[d]." The trial court overruled
the objection and instructed the jury, "There's a requirement in
Virginia law . . . that a defendant in a criminal case who elects
to put on an alibi has to give notice of what it's going to be.
That written notice is a part of this file. The Commonwealth can
rely upon it in cross exam." During the ensuing
cross-examination, defendant acknowledged that the notices placed
him in Falls Church at the time of the offenses and offered no
explanation for the inconsistencies.
Following trial, defendant's counsel moved for a mistrial,
arguing that use of the alibi notices "in essence . . . could
make [him] a witness in the case," thereby implicating the
attorney-client privilege. However, the trial judge concluded
that it was "an authorized statement by an agent and an
attorney," "clearly usable as a prior inconsistent statement."
In Hall v. Commonwealth, 16 Va. App. 779, 433 S.E.2d 489(1993), we reasoned that statements of defense counsel set forth
- 2 -
in a written suppression motion and spoken during an attendant
hearing were properly attributable to Hall, although he neither
signed the motion nor testified at the hearing. We noted that
Hall had "sat silently during the suppression hearing," and that
the statements of his counsel were made "with [his] actual or
constructive knowledge and . . . express or tacit consent." Id.
at 783, 433 S.E.2d at 492 (quoting Coppola v. Commonwealth, 220
Va. 243, 251, 257 S.E.2d 797, 802-03 (1979), cert. denied, 444
U.S. 1103 (1980)); see id. at 783-84, 433 S.E.2d at 492-93.
Defendant's effort to distinguish Hall from the instant case
ignores the lesson of Asbury v. Commonwealth, 211 Va. 101, 175
S.E.2d 239 (1970). In Asbury, the accused acknowledged on
cross-examination that he had previously provided information to
an attorney incidental to the preparation of a pleading in an
unrelated civil proceeding, but denied reading the pleading or
otherwise vouching for its contents. See id. at 106-07, 175
S.E.2d at 242-43. Nevertheless, the Court concluded that Asbury
could be impeached in a later criminal prosecution by prior
inconsistent statements found in the civil filing. See id.; see
also Taylor v. Illinois, 484 U.S. 400, 418 (1988) ("In responding
to discovery, the client has a duty to be candid and forthcoming
with the lawyer, and when the lawyer responds, he or she speaks
for the client."); Browder v. Southern Ry. Co., 107 Va. 10,
12-13, 57 S.E. 572, 573 (1907) ("[A]bandoned or superseded
pleadings . . . may be introduced in cross-examination to impeach
- 3 -
the plaintiff," even if he did not read or execute them, "in the
absence of evidence that the pleading was unauthorized.").
Here, the alibi notices were specifically related to the
pending criminal prosecution and filed in that cause by
defendant's counsel pursuant to Rule 3A:11(c), which, inter alia,
permits the court to require that the accused disclose an
intention to offer alibi evidence, including "the place at which
he claims to have been at the time of the commission of the
alleged offense," whenever discovery is ordered from the
Commonwealth. Permitting a defendant to later disavow such
declarations with impunity would at once visit an injustice upon
the Commonwealth and countenance a subversion of the Rules
governing discovery in criminal proceedings.
On review, we are guided by the principle that "[t]he
admissibility of evidence is within the broad discretion of the
trial court, and a ruling will not be disturbed on appeal in the
absence of an abuse of discretion." Blain v. Commonwealth, 7 Va.
App. 10, 16, 371 S.E.2d 838, 842 (1988). Defendant in this
instance was responsible for the content of his alibi notices,
testified differently, and had the opportunity to explain on
either cross or redirect examination the inconsistencies in his
several statements. Under such circumstances, we cannot conclude
that the trial court abused its discretion in allowing the
Commonwealth to use the notices for purposes of impeachment. 1
1
Because this record does not disclose a violation of the
attorney-client privilege, we decline to address this issue and
- 4 -
Accordingly, we affirm the convictions.
Affirmed.
attendant implications of Code § 19.2-268.1.
- 5 -