COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Ortiz and Friedman UNPUBLISHED
Argued at Norfolk, Virginia
ALPHONZO LAMONT SMITH MEMORANDUM OPINION* BY v. Record No. 1912-22-1 JUDGE MARY BENNETT MALVEAUX OCTOBER 24, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerrauld C. Jones, Judge
Edward A. Fiorella, Jr. (Fraim & Fiorella, P.C., on briefs), for appellant.
Craig W. Stallard, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Alphonzo Lamont Smith (“appellant”) appeals his convictions by a jury of two counts of
first-degree murder, in violation of Code § 18.2-32, two counts of use of a firearm in the
commission of a felony, in violation of Code § 18.2-53.1, and one count of robbery, in violation of
Code § 18.2-58. He argues the trial court erred by denying his motion for a new trial based on
claims of ineffective assistance of counsel and Brady v. Maryland, 373 U.S. 83 (1963), violations,
allowing cooperating witnesses’ attorneys to assert attorney-client privilege, denying his motion to
strike, and allowing certain uses of a transcript at trial. For the following reasons, we affirm in part,
reverse in part, and remand to the trial court.
* This opinion is not designated for publication. See Code § 17.1-413(A). I. BACKGROUND1
“‘In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party [below].’ Accordingly, we regard
as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably
be drawn from that evidence.” Meade v. Commonwealth, 74 Va. App. 796, 802 (2022) (citation
omitted) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)).
On July 25, 2019, Detective Jemal Davis of the Norfolk Police Department learned that
two people had been shot in a car at an apartment complex. When Davis arrived at the scene of
the shooting, he found a Cadillac with a shattered driver’s-side window parked with its engine
running. A person in the front passenger seat, Markee Turner, was dead. Turner had been shot
twice in the head. Before Detective Davis’s arrival, Tamian Davis had been removed from the
driver’s seat and taken to the hospital, where he was pronounced dead. Tamian Davis had been
shot multiple times, including in the chest, neck, and head.
Detective Davis encountered appellant at the scene of the shooting. Davis noted that
appellant was “sweating profusely” while no one else Davis saw was sweating in the same
manner. Davis also noticed that appellant was wearing an apron, and inquired about it; appellant
said he was a barber. Davis asked appellant if he knew someone who drove a gold Cadillac, was
familiar with the victims’ car, or knew Turner. Appellant answered no to each question.
Appellant also denied having heard any gunshots.
Events at Trial
At trial, Shakinah Dunn testified that at the time of the shooting, she and her boyfriend
were staying at the apartment complex. When the Commonwealth’s attorney asked Dunn if
1 The Hon. Junius P. Fulton, III briefly participated in this case in the trial court. Subsequently elected to this Court, Judge Fulton took no part in the consideration or resolution of this appeal. -2- anyone else had been in their apartment that day, she replied that she “d[id]n’t remember.”
Questioned further, Dunn acknowledged she had testified at a November 19, 2019 preliminary
hearing, but stated that she could not recall the substance of her testimony. The
Commonwealth’s attorney then provided Dunn with a copy of the hearing transcript and asked
her to review her testimony. Upon reviewing the transcript, Dunn acknowledged that it refreshed
her recollection “[a] little bit.” But when asked again whether, on the date of the shooting,
someone else had come to the apartment, Dunn stated that she could not remember.
The Commonwealth moved the trial court to declare Dunn an unavailable witness, “given
that she is now acting as a witness who is forgetting.” It further requested that the court permit
the Commonwealth to present Dunn’s preliminary hearing testimony by having it read to the
jury. Appellant’s counsel objected and argued that Dunn was not unavailable; rather, she was
“present to testify” but “choosing not to testify.” Counsel further argued it would be “highly
prejudicial” to allow Dunn’s preliminary hearing testimony into evidence because counsel would
lack the ability to cross-examine Dunn effectively about its contents. The court overruled
appellant’s objection and permitted use of Dunn’s preliminary hearing transcript.
The following day at trial, but outside the presence of the jury, Dunn was questioned
again about her recollections. She stated that she did not remember her preliminary hearing
testimony and was unsure whether she could recall testifying at the hearing. When questioned
further by counsel for appellant, Dunn acknowledged that reading the transcript had caused her
to remember things “[a] little bit.” When the Commonwealth’s attorney then asked Dunn if she
was “ready to try” to testify, Dunn responded affirmatively. The court noted Dunn’s response
before addressing Dunn, stating, “[s]he said she’s going to try to testify truthfully. Isn’t that
what you said, ma’am?” and Dunn responded, “[y]es.” After Dunn was given time to review
further the preliminary hearing transcript, the jury was recalled and Dunn testified.
-3- Dunn told the jury that on the evening of the shooting, she was with her boyfriend at the
apartment complex. She did not hear any gunfire. Upon further questioning by the
Commonwealth, Dunn began to respond that she could not remember or recall various details
from that night. The Commonwealth then referred Dunn to the transcript of her preliminary
hearing testimony. Relying upon the transcript, and without objection, Dunn then acknowledged
she had testified that someone else had come to the apartment and that she had given his name in
court as Alphonzo or “Zo.” She further acknowledged she had identified Alphonzo in court
during the preliminary hearing. The Commonwealth then requested, without objection, that
Dunn read several lines from the transcript. Dunn complied, stating that, “[i]t says, ‘Alphonzo
went into the kitchen and he pulled out some money and a watch.’” Again without objection, the
Commonwealth asked Dunn to read two additional lines from the transcript, and she complied.
One indicated that Dunn had stated at the hearing that the amount of money produced by
Alphonzo was “[l]ike a stack”; Dunn explained to the jury that a “stack is . . . a lot of money, a
chunk of money.” According to Dunn, Alphonzo also stated, “I fucked up.” Alphonzo began
counting the money and gave some of it to Dunn’s boyfriend, before stating, “I just came up. I
just hit a lick.” Dunn said she had explained at the hearing that “a lick” was a robbery. Reading
from the transcript, again without objection, Dunn then said that Alphonzo “took a shower,” “put
back on the same clothes,” and left.
The Commonwealth showed Dunn a photograph of appellant wearing an apron and
talking on a cell phone. Dunn acknowledged she had signed and dated the photograph. Other
handwritten comments on the photograph included the address of the apartment complex and
crime scene and the statement, “[t]his is the guy that showed up in the apartment that night the
night of the shooting.” The photograph was identical to another photograph entered into
-4- evidence by the Commonwealth and which Detective Davis testified had been extracted from
police body camera images of the crime scene.
Detective Davis testified about the crime scene as described above, and further testified
that he interviewed appellant on September 24, 2019. Although on the night of the shooting
appellant had denied knowing Turner or being familiar with the victims’ car, during the
September interview appellant now said he knew Turner by his street name, “Dutch.” Appellant
also stated that on the day of the shooting, Turner and a man he did not know had picked him up
from his barbershop in a Cadillac and given him a ride to the apartments where the shooting later
occurred. As appellant was exiting the car, Turner gave him a little cocaine. Appellant then
went upstairs to an apartment. Although he had denied hearing any gunshots when he spoke
with police on the night of the shooting, appellant now told Davis that about 45 minutes after
leaving the Cadillac, he heard a shot. Appellant also told Davis that he had helped Turner learn
how to make crack cocaine and that before he died, Turner’s narcotics business was getting
“very big, very fast” and that Turner “got more prestige in that world very fast.”
Patrick Zamor, an acquaintance of appellant, testified on behalf of the Commonwealth.
Zamor stated that his girlfriend had owed money to appellant and that when they went to pay
some of what was owed, appellant told them to “stop playing” and that “this could get real
serious.” Appellant then warned them, “[y]ou could end up like Dutch.” When Zamor asked
appellant what he meant, appellant said, “I merk you like Dutch.” Zamor explained that “merk”
was “a street term for killing.” When Zamor tried to “waive[ ] . . . off” appellant’s comment,
appellant said, “you think I’m joking, you get two to the dome.” Zamor understood “dome” to
mean “[h]ead.” Zamor acknowledged he was incarcerated on a robbery charge at the time of
appellant’s trial. He denied receiving any type of plea deal or any benefit for his testimony,
although he acknowledged he “would like” to get some benefit.
-5- Another witness for the Commonwealth, Reginald Floyd, had been one of appellant’s
cellmates in jail. Referring to the shootings at the apartment complex, Floyd testified that
appellant told him “it was supposed to be a robbery” and that appellant “didn’t have to kill them”
but “just did it.” Appellant also told Floyd that afterward, he went to his brother’s home to
shower. Appellant said to Floyd that with respect to the murder weapon, “they was just going to
have to work harder to find it out at the land fill” and “that it was a 9 millimeter pistol.” Floyd
later “reached out” to detectives with the information he had learned from appellant. Floyd
acknowledged he was incarcerated for possession of cocaine with intent to distribute and that he
had been sentenced for that offense the year before the shootings. Floyd denied that he and his
attorney were trying to find a way to have Floyd’s sentence reduced and denied that he was
hoping to get some benefit for his testimony. He specifically denied that he was expecting a
reduction in his sentence or any other benefit in his case.
The Commonwealth’s forensic evidence at trial included seven 9-millimeter cartridge
cases that had been recovered from the scene of the shootings; all seven had been fired from the
same gun. Also introduced were cell phone records and expert testimony thereon, which
established that appellant’s and Turner’s phones were traveling in close proximity shortly before
the phones arrived at the scene of the shootings.
Appellant moved to strike at the close of the Commonwealth’s case-in-chief, and the
court denied the motion. Appellant did not present his own evidence. He renewed his motion to
strike, and that motion was denied. The jury convicted appellant of two counts of first-degree
murder, two counts of use of a firearm in the commission of a felony, and one count of robbery.
-6- Post-Trial Proceedings
Appellant filed a motion for a new trial and an evidentiary hearing. He contended that at
trial, he had received ineffective assistance of counsel and the Commonwealth had committed
Brady violations with respect to Floyd and Zamor.
At a hearing on the motion, one of appellant’s trial attorneys, Catherine Paxson, testified
that her co-counsel had been hard of hearing and frequently had to ask for statements and sidebar
conversations to be repeated.2 Paxson stated that during appellant’s multi-day trial, her
co-counsel’s hearing deficiencies had repeatedly and negatively impacted his communications
with her, appellant, the trial court, the Commonwealth, and the jury.
With respect to alleged Brady violations, Paxson testified that based upon her previous
work as a prosecutor, she believed Floyd and Zamor had been promised benefits for their
testimony. She noted that shortly after appellant’s trial, Floyd was favorably resentenced at the
initiative of the Commonwealth and Zamor pled guilty to a theft offense on favorable terms.
Paxson stated that the Commonwealth’s attorney in appellant’s case would have been aware of
these benefits that awaited Floyd and Zamor and that it had been the Commonwealth’s duty to
“correct[]” the witnesses’ testimony by informing the jury of these benefits. Counsel for
appellant also proffered that he had called Floyd’s attorney and asked whether Floyd “expected
any favorable treatment from the Commonwealth in exchange for his testimony” and that
Floyd’s attorney had replied, “of course he did.” Ultimately, appellant argued that the
Commonwealth knew or should have known that Floyd and Zamor had specific arrangements
with their prosecutors to benefit from their testimony in appellant’s case and that the
2 Paxson is presently employed by the Court as a staff attorney. She took no part in the consideration or resolution of this appeal. -7- Commonwealth’s failure to “correct[ ] the record” when they testified had constituted Brady
violations.
Appellant called Zamor’s attorney, Emily Munn, to testify and sought her statements
regarding conversations she had with Zamor or the Commonwealth about “what . . . benefit
[Zamor] was looking to receive . . . for his cooperation.” The Commonwealth objected to
appellant’s questioning, and Munn, noting that Zamor had not waived attorney-client privilege,
invoked the privilege. The trial court sustained the Commonwealth’s objection and refused to
direct Munn to testify.
Floyd’s attorney, Laurence Bragg, was also called to testify by appellant. He, too, noted
that his client had not waived attorney-client privilege and invoked the privilege to refuse to
testify about his communications with Floyd. The Commonwealth again objected to appellant’s
line of questioning. Counsel for appellant argued that Bragg should be compelled to testify
because Floyd, Bragg’s client, had perjured himself when he testified that he was not working
with Bragg to have his sentenced reduced. The court sustained the Commonwealth’s objection.
Following the hearing, appellant filed a supplement to his motion that included an
unsworn transcript of telephone calls between Floyd and Bragg and between Floyd and a
member of Bragg’s staff. Appellant argued in his supplement that the contents of the telephone
calls included statements by Floyd demonstrating his expectation of receiving a benefit in
exchange for his testimony.
In a letter opinion, the trial court denied appellant’s motion for a new trial or an
evidentiary hearing. Relying on Hill v. Commonwealth, 8 Va. App. 60 (1989), the court held that
claims of ineffective assistance of counsel were “cognizable only in habeus corpus proceedings”;
accordingly, the court declined to consider appellant’s ineffective assistance of counsel claim.
With respect to appellant’s Brady claims, the court stated that they could “more appropriately be
-8- construed as a post-trial motion for a new trial based on newly acquired evidence.” Applying the
test for determining whether appellant had “actually shown that any new evidence exists or has
been discovered,” the court found appellant had failed to make such a showing and that he was
simply attempting to re-argue Zamor and Floyd’s credibility.
Appellant filed a motion for reconsideration, which the trial court denied. This appeal
followed.
II. ANALYSIS
A. Ineffective Assistance of Counsel Claim
Appellant argues the trial court erred in denying his motion for a new trial based on his
claim of ineffective assistance of counsel because the court “had jurisdiction to rule on the
issue.” Noting that the court held a hearing to address whether his co-counsel’s hearing
problems affected appellant’s right to counsel, appellant maintains this “suggests that the court
had the ability to render a decision” on his claim. We disagree.
“Jurisdictional issues are questions of law, which we review de novo.” McClary v.
Jenkins, 299 Va. 216, 222 (2020); see also Johnson v. Johnson, 72 Va. App. 771, 777 (2021).
“[C]laims of ineffective assistance of counsel are not properly raised on direct appeal and
must be raised in a separate habeas petition to the [appellate] Court or the circuit court.” Kenner
v. Commonwealth, 71 Va. App. 279, 297 (2019); see also Sigmon v. Dir. of Dep’t of Corrs., 285
Va. 526, 533 (2013) (“[C]laims of ineffective assistance of counsel are not reviewable on direct
appeal and thus can be raised only in a habeas corpus proceeding.”). Here, in denying
appellant’s motion for a new trial and an evidentiary hearing, the trial court declined to consider
appellant’s ineffective assistance of counsel claim because such claims are “not cognizable on
direct appeal” and must be raised in habeas corpus proceedings. In so ruling, the court correctly
-9- interpreted and applied the law. Accordingly, the court committed no error when it held that
appellant’s ineffective assistance of counsel claim was not properly before the court.
B. Brady Claims
Appellant argues the trial court erred in denying his motion for a new trial based upon his
Brady claims. He contends that “Floyd and Zamor, who stated that [appellant] admitted to
committing the murders,” did not acknowledge to the jury that they had “deals or expectations”
with the Commonwealth “to receive reduced sentences in exchange for their testimony.” As
evidence supporting his contention, appellant notes the chronological proximity of his
convictions and Floyd and Zamor receiving favorable treatment from the Commonwealth,
Paxson’s testimony about her familiarity with the conduct of the Commonwealth’s Attorney’s
Office, and the unsworn transcripts of telephone calls between Floyd and his attorney’s office.
Ultimately, appellant contends that the Commonwealth did not meet its Brady obligations when
it failed to disclose the full extent of the offers made to the witnesses and then failed to correct
the record following their testimony.
Under the rule established in Brady, “the suppression by the prosecution of evidence
favorable to an accused . . . violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.” Mercer v.
Commonwealth, 66 Va. App. 139, 146 (2016) (quoting Brady, 373 U.S. at 87). “There are three
components of a violation of the rule of disclosure first enunciated in Brady.” Workman v.
Commonwealth, 272 Va. 633, 644 (2006). First, “[t]he 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.” Id. (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Second, the
Commonwealth must have withheld the evidence, without regard to whether it did so “willfully
or inadvertently.” Id. Third, the evidence must be “material” under Brady, meaning “there is a
- 10 - reasonable probability that, had the evidence been disclosed, the result of the proceeding would
have been different.” Commonwealth v. Tuma, 285 Va. 629, 634-35 (2013) (quoting Smith v.
Cain, 565 U.S. 73, 75 (2012)); see also Workman, 272 Va. at 644-45 (describing third prong as
whether the accused was prejudiced). “The accused has the burden of establishing each of these
three components to prevail on a Brady claim.” Mercer, 66 Va. App. at 146 (quoting Tuma, 285
Va. at 635). “Although ‘[i]n reviewing the denial of a Brady motion, the [trial] court’s factual
findings will not be disturbed absent clear error,’ this Court reviews the [trial] court’s legal
conclusions de novo.” Warnick v. Commonwealth, 72 Va. App. 251, 263 (2020) (first alteration
in original) (quoting Church v. Commonwealth, 71 Va. App. 107, 116 (2019)).
Here, although appellant asserted Brady claims in his post-trial motion, the trial court
resolved those claims by treating them as a motion for a new trial based on alleged newly
acquired evidence. In doing so, the court applied the test for determining whether appellant had
demonstrated the existence of new evidence and not the test for determining whether appellant
had established Brady violations. See Bagley v. Commonwealth, 73 Va. App. 1, 22 (2021)
(providing a four-part test for evaluating a motion for a new trial based on after-discovered
evidence); Castillo v. Commonwealth, 70 Va. App. 394, 466 (2019) (providing the three
requirements for a defendant to establish a Brady violation). Because the court applied the
wrong legal test in addressing and resolving appellant’s Brady claims, it erred as a matter of law,
and thus abused its discretion. See Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021)
(“[A] trial court ‘by definition abuses its discretion when it makes an error of law.’” (quoting
Robinson v. Commonwealth, 68 Va. App. 602, 606 (2018))). Accordingly, we reverse the
court’s Brady ruling and remand for the limited purpose of conducting a new Brady hearing.
- 11 - C. Attorney-Client Privilege
Appellant next argues the trial court erred in allowing Munn and Bragg, the attorneys for
Zamor and Floyd, respectively, to assert attorney-client privilege at the hearing on his post-trial
motion. Appellant contends that the attorneys should have been compelled to testify and that
they would have testified to conversations demonstrating their clients’ “concrete and solid
expectations that they would receive reduced jail time for their testimony against [appellant].”
Appellant also argues that both Floyd and Zamor waived attorney-client privilege.
We do not reach the merits of appellant’s arguments because of our holding, above, that
the trial court erred in its Brady ruling and that remand for a new Brady hearing is required.
Appellant’s arguments concerning the substance of Munn’s and Bragg’s conversations with their
clients, whether their clients waived attorney-client privilege, and whether Munn and Bragg
should have been compelled to testify are not severable from appellant’s larger Brady claims.
Accordingly, these arguments, as raised by appellant below and subsequently on appeal in this
assignment of error, are properly a matter for consideration in the new Brady hearing on remand.
D. Use of Dunn’s Preliminary Hearing Testimony
Appellant argues the trial court erred “in allowing the [p]robable [c]ause transcript
testimony of witness Shakinah Dunn being offered [sic] into evidence in lieu of her live
testimony.” Specifically, he contends Dunn was present and available to testify at appellant’s
trial, and yet “the [c]ourt permitted the Commonwealth to have Dunn directly read” portions of
her preliminary hearing transcript into evidence. Appellant asserts this was error which was
prejudicial to him because it “improperly bolstered” Dunn’s testimony and denied him “the
opportunity for effective cross-examination.”
We need not reach the merits of appellant’s argument, because appellant failed to
preserve this issue for appellate review. This is so because on those occasions when the
- 12 - Commonwealth requested Dunn to read from the transcript of her preliminary hearing testimony,
and she complied, appellant raised no objection. “No ruling of the trial court . . . will be
considered as a basis for reversal unless an objection was stated with reasonable certainty at the
time of the ruling, except for good cause shown or to enable this Court to attain the ends of
justice.” Rule 5A:18. “The purpose of th[e] contemporaneous objection requirement [in Rule
5A:18] is to allow the trial court a fair opportunity to resolve the issue at trial, thereby preventing
unnecessary appeals and retrials.” Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015).
“Specificity and timeliness undergird the contemporaneous-objection rule, animate its highly
practical purpose, and allow the rule to resonate with simplicity.” Bethea v. Commonwealth, 297
Va. 730, 743 (2019). Consequently, an objection “must be both specific and timely — so that the
trial judge would know the particular point being made in time to do something about it.” Id.
(quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)). Where a party fails to
timely and specifically object, that party waives its argument on appeal. Arrington v.
Commonwealth, 53 Va. App. 635, 641 (2009). This principle applies even to the exclusion of
constitutional arguments. See, e.g., Foster v. Commonwealth, 38 Va. App. 549, 555 (2002).
Because appellant did not object when Dunn read excerpts from her preliminary hearing
testimony at his trial, appellant has waived this issue for purposes of appellate review.
E. Sufficiency of the Evidence
Appellant contends the trial court erred in denying his motion to strike. Specifically, he
argues the evidence failed to prove “that [he] did anything but ride with the victims to the
apartment complex where they were later found shot to death.”
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
- 13 - (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). Instead, “the relevant question is whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted
to substitute its own judgment, even if its opinion might differ from the conclusions reached by
the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
The fact-finder “‘is entitled to consider all of the evidence,’ direct and circumstantial, ‘in
reaching its determination.’” Mollenhauer v. Commonwealth, 73 Va. App. 318, 333 (2021)
(quoting Commonwealth v. Moseley, 293 Va. 455, 463 (2017)). “Circumstantial evidence, if
sufficiently convincing, is as competent and entitled to the same weight as direct testimony.”
Maust v. Commonwealth, 77 Va. App. 687, 699 (2023) (en banc) (quoting McCain v.
Commonwealth, 261 Va. 483, 493 (2001)). Additionally, determining “the ‘credibility of the
witnesses and the weight of the evidence’ are tasks left ‘solely [to] the trier of fact’ unless those
determinations are ‘plainly wrong or without evidence to support [them].’” Nelson v.
Commonwealth, 73 Va. App. 617, 622 (2021) (alterations in original) (quoting Wactor v.
Commonwealth, 38 Va. App. 375, 380 (2002)). This is so because the fact-finder “has the
unique opportunity to observe the demeanor of the witnesses as they testify.” Dalton v.
Commonwealth, 64 Va. App. 512, 525 (2015) (quoting Lea v. Commonwealth, 16 Va. App. 300,
304 (1993)). The fact-finder is “free to believe or disbelieve, in part or in whole, the testimony
of any witness.” Bazemore v. Commonwealth, 42 Va. App. 203, 213 (2004) (en banc).
- 14 - Similarly, in its role of judging credibility, “the fact finder is entitled to disbelieve the
self-serving [statements] of the accused and to conclude that the accused is lying to conceal his
guilt.” Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable v.
Commonwealth, 27 Va. App. 505, 509-10 (1998)). Ultimately, appellate review of the
sufficiency of the evidence “requires a ‘totality-of-the-evidence analysis.’” Mollenhauer, 73
Va. App. at 334 (quoting Moseley, 293 Va. at 464).
We are unconvinced by appellant’s argument. Appellant asserts that the evidence only
showed that he drove with the victims to the apartment complex where they were later found
shot to death. But the evidence, viewed in its totality, demonstrated far more than that. At the
scene of the shootings, appellant initially denied to Detective Davis that he was familiar with the
victims’ car, knew victim Turner, or had heard any gunshots; when subsequently interviewed
again by Davis, appellant gave a contradictory account. He acknowledged knowing Turner, or
“Dutch,” and riding to the apartment complex with Turner and another man, and also stated he
had taught Turner how to make crack cocaine. He also acknowledged hearing a gunshot on the
night of the shootings. The jurors were entitled to view appellant’s initial, subsequently
self-contradicted denials as self-serving statements intended to conceal his guilt. See Flanagan,
58 Va. App. at 702.
Dunn’s evidence demonstrated that on the night of the shootings, appellant came into the
apartment where Dunn was staying and stated, “I fucked up.” He also said that he had “just
c[o]me up” after “hit[ting] a lick,” which Dunn described as a term meaning a robbery.
Appellant then produced a large quantity of money and a watch. As appellant later admitted to
Detective Davis, appellant knew that Turner was in the narcotics business and had become “very
big, very fast.” The jury was entitled to credit Dunn’s and Davis’s testimony and to infer from it
- 15 - that appellant had robbed Turner of money he suspected Turner possessed and that the robbery
had resulted in unintended fatalities.
Such reasonable inferences were corroborated by the testimony of Zamor and Floyd.
Zamor testified that appellant warned him he could “end up like Dutch,” and then clarified that
he meant he might “merk”—i.e., kill—Zamor “like Dutch.” Appellant also told Zamor he might
get “two to the dome,” or head, when “Dutch” had been shot twice in the head. Similarly, Floyd
testified appellant told him that “it was supposed to be a robbery,” but that he had ended up
killing the two victims. He also stated that the murder weapon had been a 9-millimeter pistol,
and police recovered 9-millimeter cartridge cases from the scene of the shootings. Floyd’s
testimony that appellant stated he had gone to an apartment and taken a shower after the killings
also corroborated part of Dunn’s testimony about appellant’s actions the night of the shootings.
Considering the totality of the evidence, a rational trier of fact could have found the
evidence sufficient to convict appellant of all the murder, robbery, and firearms charges.
Accordingly, we find no error by the trial court in denying appellant’s motion to strike.
III. CONCLUSION
The trial court did not err in denying appellant’s motion for a new trial based on claims of
ineffective assistance of counsel or in denying appellant’s motion to strike. Appellant’s argument
that the trial court erred in allowing certain uses of a preliminary hearing transcript at trial was not
preserved for appellate review. However, the trial court erred, and abused its discretion, by
applying the wrong legal principles in addressing and resolving appellant’s Brady claims.
Accordingly, we affirm in part, reverse in part, and remand for the limited purpose of the trial court
conducting a new Brady hearing.
Affirmed in part, reversed in part, and remanded.
- 16 -