Joel Malik Hicklin v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Chafin and Senior Judge Clements
UNPUBLISHED
Argued at Richmond, Virginia
JOEL MALIK HICKLIN
MEMORANDUM OPINION* BY
v. Record No. 0800-15-2 JUDGE JEAN HARRISON CLEMENTS
MAY 3, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clarence N. Jenkins, Jr., Judge
Joan J. Burroughs (Law Offices of Sara M. Gaborik, on brief), for
appellant.
J. Christian Obenshain, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Joel Malik Hicklin (“appellant”) was convicted of possession of a firearm by a convicted
felon. As a result of that conviction, the trial court also found him in violation of his probation.
On appeal, appellant asserts that the trial court erred by denying his motion to set aside the
verdict on the basis that the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963),
when it failed to disclose the charges pending against prosecution witness Shardae Harkless prior
to trial. He also asserts the evidence was insufficient to support his conviction for possession of
a firearm, and therefore, was likewise insufficient to support his conviction for violating his
probation. For the reasons that follow, we affirm the trial court.
Background
“On appeal, we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.” Wells v. Commonwealth, 65
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Va. App. 722, 725, 781 S.E.2d 362, 364 (2016) (quoting Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987)).
So viewed, the evidence proved that Harkless decided to end her relationship with
appellant upon learning of his infidelity with another woman, and began to move his belongings
out of her home. Following several arguments over the phone, the two arranged a face-to-face
meeting on June 9, 2014, at an apartment complex.
When Harkless drove into the apartment complex parking lot, appellant was standing
outside waiting for her. He approached Harkless’s vehicle, opened the front passenger door, and
sat down inside the car. Appellant put a gun to Harkless’s head and began to choke her.
Appellant demanded her purse, but Harkless answered it was not in the car. In response,
appellant exited the vehicle and walked around to the driver’s side. He opened the driver’s door,
“stuck the gun” in front of Harkless, and fired inside the car. The bullet did not strike Harkless.
Appellant pulled Harkless from the car and threw her to the ground. He beat her, kicked
her, and fired his gun into the ground beside her. When Harkless was able to return to her car,
she attempted to call the police. However, appellant “snatched” her phone and resumed beating
her. When he finished, appellant entered a nearby car driven by a woman. Harkless returned to
her car and saw the woman back up in preparation to leave. Angry, Harkless “rammed” the
woman’s car several times. Appellant got out of the car and ran from the scene. As he fled
between apartment buildings, Harkless chased him with her car until she struck a parking barrier.
When Detective Russell arrived at the scene, he spoke with Harkless. She had a bruise
on her neck and abrasions on her face. Upon investigating the area, Russell recovered two
.40-caliber shell casings near Harkless’s car. He also found a small, round hole in the passenger
door of Harkless’s vehicle that was located just above the height of an occupant’s head. The
hole “went through and through” the car, and Russell found no bullet inside the vehicle.
-2-
Appellant was arrested and stood trial for possession of a firearm by a convicted felon, as
well as several other charges. Following his conviction, he moved to set aside the verdict on the
basis that the Commonwealth committed a Brady violation. Appellant pointed out that Harkless
was the only witness who testified he had a firearm, and, at the time of her testimony, she had
been charged in Hopewell with assault, reckless handling of a firearm, and shooting into an
occupied vehicle or dwelling.1 The Commonwealth’s attorney conceded he had been aware of
the charges pending against Harkless since September 2014, but maintained the charges were not
Brady material because they were not convictions and Harkless had not received favorable
treatment on the charges in exchange for her testimony.
The trial court denied appellant’s motion, and this appeal followed.
Analysis
I.
In his first assignment of error, appellant appeals the trial court’s denial of his motion to
set aside the verdict on Brady grounds. “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). “Brady obligations extend not only to exculpatory evidence, but also to
impeachment evidence[.]” Coley v. Commonwealth, 55 Va. App. 624, 630, 688 S.E.2d 288, 292
(2010).
There are three components of a violation of the Brady rule of
disclosure:
“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.”
1
Prior to trial, the Commonwealth disclosed to appellant that Harkless had charges
pending in Hanover for making a false report to law enforcement, and appellant cross-examined
her about those charges at trial.
-3-
Hicks v. Dir., Dep’t of Corr., 289 Va. 288, 299, 768 S.E.2d 415, 420 (2015) (quoting Workman
v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374 (2006)).
“In making a Brady challenge, ‘[a] defendant cannot simply allege
the presence of favorable material and win reversal of his
conviction. Rather, [he] must prove the favorable character of
evidence he claims has been improperly suppressed. Speculative
allegations are not adequate.’” Currie v. Commonwealth, 30
Va. App. 58, 67, 515 S.E.2d 335, 340 (1999) (quoting Hughes v.
Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451, 461
(1994)). “[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.”
United States v. Bagley, 473 U.S. 667, 678 (1985).
Coley, 55 Va. App. at 630, 688 S.E.2d at 291-92.
“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.” Hicks, 289 Va. at 299, 768 S.E.2d at 420
(quoting Workman, 272 Va. at 645, 636 S.E.2d at 374). “A reviewing court must determine
whether the withheld favorable evidence ‘could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict’; that is, whether such evidence
was material.” Id. (quoting Strickler v. Greene, 527 U.S. 263, 290 (1999)).
“The Brady disclosure requirements extend to information that can be used to impeach a
witness’ credibility.” Lovitt v. Warden, Sussex I State Prison, 266 Va. 216, 245, 585 S.E.2d 801,
817 (2003). However,
[i]t is well-settled in Virginia that a litigant’s right to impeach the
credibility of adverse witnesses by showing their participation in
criminal conduct has been confined to questions about a conviction
for a felony, perjury, and a misdemeanor involving moral
turpitude. This limitation upon a defendant’s impeachment rights
is a reasonably necessary measure to restrict the scope of a
criminal trial. . . . [A]dmission of unadjudicated crimes for
purposes of general impeachment of a witness would “lead to
confusion in directing the jury’s attention to collateral matters and
away from the issues of the case.”
-4-
Ramdass v. Commonwealth, 246 Va. 413, 423, 437 S.E.2d 566, 572 (1993) (quoting Clark v.
Commonwealth, 202 Va. 787, 790, 120 S.E.2d 270, 273 (1961)) (other citations omitted),
vacated on other grounds, 512 U.S. 1217 (1994). See also Johnson v. Commonwealth, 41
Va. App. 37, 45, 581 S.E.2d 880, 884 (2003) (failure to disclose witness’ misdemeanor
convictions prior to trial did not violate Brady because convictions did not involve offenses of
moral turpitude and were therefore inadmissible at trial).
We recognize that “the right to cross-examine a witness to show bias or motivation to
falsify, when not abused, is absolute.” Lewis v. Commonwealth, 269 Va. 209, 214, 608 S.E.2d
907, 911 (2005). This right is grounded in an accused’s right to confront his accusers. Brown v.
Commonwealth, 246 Va. 460, 464, 437 S.E.2d 563, 564-65 (1993). Nevertheless, “Brady is ‘a
disclosure rule, not a discovery rule.’” Commonwealth v. Tuma, 285 Va. 629, 635, 740 S.E.2d
14, 18 (2013) (quoting United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996)). The “limited
purpose of the Brady rule is ‘“to assure that [the defendant] will not be denied access to
exculpatory [or impeachment] evidence known to the government but unknown to him.”’” Id.
(quoting Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir. 1982)).
Here, appellant contends the Commonwealth withheld evidence of charges pending
against Harkless in another jurisdiction at the time of his trial. 2 Because Harkless had not been
convicted of a felony or a crime of moral turpitude, the charges were not admissible to impeach
her, and therefore, did not constitute Brady material on that basis. See Ramdass, 246 Va. at 423,
437 S.E.2d at 572; Johnson, 41 Va. App. at 45, 581 S.E.2d at 884.
Likewise, the charges were not admissible to prove Harkless was biased or motivated to
falsify her testimony against appellant. On appeal, appellant does not explain how, if the
Hopewell charges had been disclosed prior to trial, he would have used those charges to establish
2
We assume, without deciding, that the Commonwealth suppressed the pending charges.
-5-
Harkless was biased or motivated to lie about his having a firearm. Instead, he simply assumes
that the charges constituted impeachment evidence, and therefore, satisfied the first prerequisite
for a Brady violation.
At the hearing on appellant’s motion to set aside the verdict based on the alleged Brady
violation, Russell testified that Harkless was offered nothing in exchange for her testimony, and
received no special consideration in the Hopewell matter in exchange for her testimony against
appellant.
In denying appellant’s motion, the trial court ruled that
it’s required by Brady v. Maryland that evidence of prior
convictions of witnesses be disclosed for impeachment purposes.
These are not prior convictions that we’re talking about today.
These are pending charges that were – that the victim had in
another jurisdiction. Now, there was some discussion about the
Hanover situation involving filing a false police report, and,
apparently, that just came out through conversation, and that’s fine.
Now, they would have been required to have been disclosed to the
other side were the victim receiving some benefit. In other words,
if she was given a reduction in her charges in another jurisdiction
were she to testify and be helpful in this case. There’s been no
evidence of that based upon Detective Russell’s testimony. So . . .
the Court does not find that it was a Brady violation in this case.
We agree with the trial court.
As the pending charges in Hopewell were not “favorable” to appellant for impeachment
purposes, appellant has failed to satisfy the first prong of the three requirements for a Brady
violation. See Hicks, 289 Va. at 299, 768 S.E.2d at 420. Thus, no Brady violation occurred by
virtue of the Commonwealth’s failure to disclose the charges prior to appellant’s trial.
Accordingly, we affirm the trial court’s denial of appellant’s motion to set aside the
verdict.
-6-
II.
Appellant also maintains the evidence was insufficient to support his conviction because
Harkless’s testimony was not credible. He points out that both he and defense witness Iteka
Epps testified shots were not fired in the area until after the altercation between him and Harkless
had concluded.
“On appeal, the judgment of the trial court is presumed [to be] correct.” Johnson v.
Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991). “The judgment of a trial
court sitting without a jury is entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence that the judgment is plainly wrong or without evidence
to support it.” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting
Martin, 4 Va. App. at 443, 358 S.E.2d at 418).
“The credibility of the witnesses and the weight accorded the evidence are matters solely
for the fact finder who has the opportunity to see and hear that evidence as it is presented.”
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The trier of
fact is not required to accept a party’s evidence in its entirety, Barrett v. Commonwealth, 231 Va.
102, 107, 341 S.E.2d 190, 193 (1986), but is free to believe and disbelieve in part or in whole the
testimony of any witness, Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,
830 (1991). “In its role of judging witness credibility, the fact finder is entitled to disbelieve the
self-serving testimony of the accused and to conclude that the accused is lying to conceal his
guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).
Here, the trial judge found that Harkless’s testimony about appellant’s possession of the
gun was credible and was corroborated both by the presence of the bullet casings at the scene
and the bullet hole in the interior of Harkless’s car. Her account was also corroborated by the
-7-
injuries to her face and neck observed and photographed by Russell on the evening of the
incident.
Thus, the evidence was competent, credible, and sufficient to prove appellant’s guilt
beyond a reasonable doubt. The trial court’s judgment is affirmed.
Affirmed.
-8-