Ronald Eric Hemphill, Jr. v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Petty
Argued at Richmond, Virginia
RONALD ERIC HEMPHILL, JR.
MEMORANDUM OPINION * BY
v. Record No. 1363-08-4 JUDGE ROBERT P. FRANK
JUNE 2, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge
J. Paul Walla (Ashton, Walla, & Associates, P.C., on brief), for
appellant.
Donald E. Jeffrey, III, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief1 ), for appellee.
Ronald Eric Hemphill, Jr. (appellant) appeals his conviction, following a bench trial, for
malicious wounding, in violation of Code § 18.2-51. On appeal, he contends that the trial court
erred, as a matter of law, in denying his motion for a new trial under the rule of Workman v.
Commonwealth, 272 Va. 633, 636 S.E.2d 368 (2006). For the reasons that follow, we affirm the
trial court.
BACKGROUND
Under well established principles of appellate review, we view the evidence and all
reasonable inferences deducible from that evidence in the light most favorable to the
Commonwealth, the party prevailing below. Banks v. Commonwealth, 41 Va. App. 539, 543,
586 S.E.2d 876, 877 (2003). So viewed, the evidence proved that on June 21, 2007, appellant
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Briefs in this appeal were filed before the resignation of Attorney General McDonnell.
returned to the boarding house in which he rented a room. He had returned from a store where
he had purchased a beer. Appellant had a beer in his hand when he came up the steps. Michael
Coles, the victim, also lived in this boarding house. The victim was sitting on the front porch of
the house with the landlord and another person. Appellant and the victim exchanged words.
Appellant then went into the house, and the victim followed a few seconds later. When
the victim went inside, appellant stated that the victim disrespected him and he then stabbed the
victim repeatedly. The landlord went inside after hearing a thump. She saw appellant stab the
victim with a small knife. The landlord pulled appellant off of the victim and called police.
When Officer Deal arrived, he found the victim covered in blood, and he observed blood
at the front door and in the foyer of the house. Police found appellant in his room and arrested
him. Appellant told police that the victim had a knife and had tried to stab him. Officer Deal
described appellant as confused, with “a strong scent of an alcoholic beverage about his person.”
His eyes were “glassy and bloodshot.” Officer Chilton, who observed appellant at the police
station, testified he detected a strong odor of alcohol coming from appellant.
The trial court convicted appellant of malicious wounding, stating that witnesses had
testified to “a strong odor of alcohol” coming from appellant and that appellant’s drinking had
played a role in the incident.
Appellant subsequently filed a motion for a new trial, based on his discovery of a police
booking report from the night of the incident showing his blood alcohol content as 0.00.
Appellant contended the non-disclosed evidence would have affected the verdict. At a post-trial
hearing, appellant, the Commonwealth, and the court addressed the information in question. The
trial court found there were other facts demonstrating that appellant had been drinking on the
date of the incident, including the observations of police officers on the scene and at the police
station that appellant smelled of alcohol. The trial court reviewed the booking report, which
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contained handwritten notations that appellant was “upset,” had a “bad attitude,” and had “been
drinking.” The trial court denied appellant’s motion for a continuance and overruled his motion
for a new trial. This appeal followed.
DEFAULT
The Commonwealth argues that appellant’s question presented is defaulted because he
did not seek a ruling on his motion for a new trial. It is true that at the hearing, the trial court
framed appellant’s motion as a request for a continuance, and appellant did not object. However,
appellant had filed a written motion for a new trial with the clerk’s office and had served the
Commonwealth. The issue of the alleged exculpatory evidence was squarely before the trial
court. Both the Commonwealth and appellant presented argument as to the materiality of the
evidence in question. Further, in overruling appellant’s motion, the trial court considered the
non-disclosed evidence as well as the effect of the other evidence presented at trial.
The purpose of Rule 5A:18 “is to ensure that the trial court and opposing party are given
the opportunity to intelligently address, examine, and resolve issues in the trial court, thus
avoiding unnecessary appeals.” Andrews v. Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d
401, 408 (2002). In this case, finding the issue was before the trial court, we will therefore
address the argument on its merits.
ANALYSIS
When we review an exculpatory evidence claim, ‘“[o]n appeal, the burden is on appellant
to show that the trial court erred.’” Gagelonia v. Commonwealth, 52 Va. App. 99, 112, 661
S.E.2d 502, 509 (2008) (quoting Galbraith v. Commonwealth, 18 Va. App. 734, 739, 446 S.E.2d
633, 637 (1994)).
The Supreme Court of the United States has established that due process mandates that
the prosecution disclose to the accused all favorable evidence that is material to his guilt or
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punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). “A Brady violation occurs when the
government fails to disclose evidence materially favorable to the accused.” Youngblood v. West
Virginia, 547 U.S. 867, 869 (2006) (citing Brady, 373 U.S. at 87). In Workman, 272 Va. 633,
636 S.E.2d 368, the Virginia Supreme Court elaborated, stating:
There are three components of a violation of the rule of disclosure
first enunciated in Brady: a) The evidence not disclosed to the
accused must be favorable to the accused, either because it is
exculpatory, or because it may be used for impeachment; b) the
evidence not disclosed must have been withheld by the
Commonwealth either willfully or inadvertently; and c) the
accused must have been prejudiced. Stated differently, the
question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial resulting in
a verdict worthy of confidence. A constitutional error occurs, and
the conviction must be reversed, only if the evidence is material in
the sense that its suppression undermines confidence in the
outcome of the trial.
Id. at 644-45, 636 S.E.2d at 374 (internal quotation marks, alterations, and citations omitted).
Exculpatory “information known to the police is information
within the Commonwealth’s knowledge and the prosecutor is
obliged to disclose regardless of the state of his actual knowledge.”
Moreno v. Commonwealth, 10 Va. App. 408, 418, 392 S.E.2d 836,
842-43 (1990). However, there is no Brady violation “‘if the
evidence in question is available to the defendant from . . . sources
[other than the Commonwealth].’” United States v. Wilson, 901
F.2d 378, 380 (4th Cir. 1990) (quoting United States v. Davis, 787
F.2d 1501, 1505 (11th Cir. 1986)).
Gagelonia, 52 Va. App. at 113, 661 S.E.2d at 509-10. 2
2
The Commonwealth asserts that appellant’s Brady claim fails because he had actual
knowledge that a blood alcohol test had been performed. Appellant must prove that the
non-disclosed evidence was favorable to him and that he was prejudiced by the
Commonwealth’s failure to disclose the evidence. Appellant bears the burden to prove
materiality. See Soering v. Deeds, 255 Va. 457, 464, 499 S.E.2d 514, 517 (1998) (stating that
appellant “must show that when the case is evaluated in the context of the entire record,
including the omitted evidence, a jury would have entertained a reasonable doubt” as to
appellant’s guilt”). Because we find that the non-disclosed evidence was not material to
appellant’s case, we do not address whether appellant had knowledge of the evidence.
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Assuming without deciding that the booking report was favorable to appellant, it does not
automatically follow that appellant is therefore entitled to a new trial. Even if non-disclosed
evidence “is favorable to the defendant on the issue of guilt or punishment, it must also be
material before the defendant is entitled to a new trial.” Humes v. Commonwealth, 12 Va. App.
1140, 1143, 408 S.E.2d 553, 555 (1991). “The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the outcome of the trial, does
not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97,
109-10 (1976) (emphasis added).
Evidence is material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” United States
v. Bagley, 473 U.S. 667, 682 (1985). A conviction must be reversed if the accused shows “that
the favorable evidence could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).
In this case, the trial court, as fact finder, was aware of the booking report showing
appellant’s 0.00 blood alcohol content at the post-trial hearing on appellant’s motion. At the
hearing, the trial court specifically reviewed the trial testimony and considered the non-disclosed
evidence. The trial court stated that two police officers had noted a strong odor of alcohol
coming from appellant. In addition, the police booking report indicated that appellant had a bad
attitude and had been drinking.
Appellant has failed to establish the requisite prejudice because the trial court, had it been
aware of the undisclosed evidence, would not have reached a different conclusion. Nothing in
the record provides a basis to conclude that there is a reasonable probability that, had the
booking report been disclosed prior to trial, the results of the proceedings would have been any
different. See Jeffries v. Commonwealth, 6 Va. App. 21, 26, 365 S.E.2d 773, 776 (1988). At
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trial, the trial court convicted appellant based on the Commonwealth’s evidence. At the
post-trial hearing, the trial court reviewed the entirety of the evidence in light of the
non-disclosed booking report and arrived at the same result. As the fact finder, the trial court
was entitled to reach this conclusion.
“Prejudice cannot be shown where, as here, ‘the trial judge was the trier of fact and, upon
learning of the undisclosed information,’ rules unequivocally that the impeachment evidence
‘would have had no impact’ on the factfinding underlying the defendant’s conviction.” Deville
v. Commonwealth, 47 Va. App. 754, 757, 627 S.E.2d 530, 532 (2006) (quoting Correll v.
Commonwealth, 232 Va. 454, 466, 352 S.E.2d 352, 359 (1987)). This is because “[w]hen a trial
judge, sitting as ‘both trier of fact and arbiter of law,’ finds the Brady evidence inconsequential,
there can be ‘no logical possibility’ that its earlier disclosure ‘would have altered the outcome of
the case.’” Id. (quoting Stroik v. State, 671 A.2d 1335, 1340 (Del. 1996)). In a situation like this
one, “we need not hypothesize how a reasonable jury would likely have reacted to the new
information. We know with certitude, from the factfinder [itself], that the outcome of the
proceeding would not have been different had the evidence been disclosed earlier.” Id.
Based on the trial court’s factual findings, we are not convinced that there is a reasonable
probability of a different verdict had the booking report been disclosed to appellant. See
Strickler v. Greene, 527 U.S. 263, 296 (1999). Therefore, we find the verdict “worthy of
confidence.” Kyles, 514 U.S. at 434. The trial court did not err in denying appellant’s motion
for a new trial.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
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