COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Willis and Senior Judge Overton Argued at Alexandria, Virginia
ANTHONY RUMONT ROBERTS MEMORANDUM OPINION * BY v. Record No. 0322-00-4 JUDGE NELSON T. OVERTON FEBRUARY 6, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FREDERICK COUNTY James L. Berry, Judge
Walter F. Green, IV, for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
On appeal, Anthony Rumont Roberts (appellant) contends the
trial court erred in (1) refusing to set aside the verdicts due to
the Commonwealth's failure to provide exculpatory evidence and (2)
questioning two jurors in camera midtrial without his being
present. Finding no error, we affirm.
BACKGROUND
On March 1, 1997, a jury found appellant guilty of the
September 12, 1996 murder of Kathy Hartley. The jury also found
appellant guilty of feloniously and maliciously shooting into an
occupied vehicle and using a firearm in the commission of murder.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On July 25, 1997, prior to the imposition of sentence,
appellant argued for a new trial based on, inter alia, the
Commonwealth's failure to provide exculpatory information about
one of its witnesses and the trial court's in camera questioning
of two jurors during trial without appellant being present.
FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
After the jury found appellant guilty, appellant learned
that Robert Moore, one of the witnesses at appellant's February
28, 1997 trial, had been arrested in Frederick County on June
27, 1996 for driving under the influence and speeding. His
February 1997 trial on those charges was continued until a date
after appellant's trial. At Moore's DUI trial, he was placed on
probation. At the July 25, 1997 hearing, the prosecutor
conceded that knowledge of Moore's charges was properly imputed
to his office, however, he proffered that no one in his office
was aware of Moore's charges at the time. The prosecutor
further represented that Moore never asked for, nor did anyone
give him, a deal or special treatment in exchange for his
testimony. Appellant contends that withholding such evidence in
the possession of the Commonwealth required the trial court to
set aside the verdict and grant him a new trial.
Due process requires the Commonwealth to disclose all
exculpatory evidence to an accused. Allen v. Commonwealth, 20 Va.
App. 630, 637, 460 S.E.2d 248, 251 (1995) (citing Brady v.
Maryland, 373 U.S. 83 (1963)). "Exculpatory evidence" is defined
- 2 - as evidence that is "material to guilt or punishment and favorable
to the accused," id., and includes impeachment evidence. See
United States v. Bagley, 473 U.S. 667, 676 (1985); Robinson v.
Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986).
Evidence is "material," and its nondisclosure justifies reversal
on appeal, only "if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different." Bagley, 473 U.S. at 682;
see Correll v. Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352, 358
(1987). "'A "reasonable probability" is a probability sufficient
to undermine confidence in the outcome.'" Soering v. Deeds, 255
Va. 457, 464, 499 S.E.2d 514, 517 (1998) (quoting Bagley, 473 U.S.
at 682). Therefore, 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. Id. "The mere possibility that
an item of undisclosed information might have helped the defense
. . . does not establish 'materiality' in the constitutional
sense." United States v. Agurs, 427 U.S. 97, 109-10 (1976).
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
So viewed, the evidence proved that, around 6:30 p.m. on September
12, 1996, Willie Burns was driving a Ford Escort in which Hartley
- 3 - was shot and killed while a front seat passenger. Chansey Fasano
was a rear seat passenger in the car.
Burns testified that he started dating Hartley about a month
before her death. Prior thereto, she dated and lived with
appellant. About two weeks before the murder, Burns was present
when Hartley told appellant she no longer wanted to be with him,
she wanted to be with Burns. Burns explained how, on September
12, 1996, appellant recognized him driving Hartley and Fasano
through town and followed them in his white Mitsubishi 3000GT.
Burns tried to elude appellant, but was unable to do so.
Appellant followed Burns onto an entrance ramp to Interstate 81.
When appellant's car approached Burns' car from the right side,
Hartley yelled out that appellant had a gun. Seconds later, Burns
heard a gunshot, and Hartley fell over beside him.
Fasano corroborated Burns' account of how appellant followed
and chased them. Fasano heard the fatal gunshot and saw Hartley
slump over onto Burns' shoulder.
Carey Davis met and spoke with appellant in the afternoon on
the day of the murder. Davis and Hartley conversed for a short
time. When Davis indicated she had to go, appellant said, "'I
have got to find that crazy-ass Kathy.'" Appellant also told
Davis, "'One of the these days I am going to kill that girl.'"
A few days before the murder, appellant visited Susan French,
a special prosecutor for the City of Winchester. French testified
that appellant was concerned that Hartley had become associated
- 4 - with persons dealing in illegal drugs and had again become
addicted to crack cocaine. Appellant offered to work undercover.
French wrote down the information and said she would contact local
authorities. French testified that appellant told her that
"[s]omebody had better get it under control" and that, "if
somebody didn't get it under control," and if "Kathy didn't get
off the drugs," appellant "was going to have to kill Kathy."
Two days before the murder, James Jackson visited Hartley, a
former co-worker. Appellant was present. Jackson testified that
appellant "had a gun." When Hartley walked Jackson to the door so
he could leave, appellant "[t]urned the gun" at Hartley.
Douglas Delagaetano, a forensic scientist, tested evidence
collected from appellant's car by police. He found gunshot
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Willis and Senior Judge Overton Argued at Alexandria, Virginia
ANTHONY RUMONT ROBERTS MEMORANDUM OPINION * BY v. Record No. 0322-00-4 JUDGE NELSON T. OVERTON FEBRUARY 6, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FREDERICK COUNTY James L. Berry, Judge
Walter F. Green, IV, for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
On appeal, Anthony Rumont Roberts (appellant) contends the
trial court erred in (1) refusing to set aside the verdicts due to
the Commonwealth's failure to provide exculpatory evidence and (2)
questioning two jurors in camera midtrial without his being
present. Finding no error, we affirm.
BACKGROUND
On March 1, 1997, a jury found appellant guilty of the
September 12, 1996 murder of Kathy Hartley. The jury also found
appellant guilty of feloniously and maliciously shooting into an
occupied vehicle and using a firearm in the commission of murder.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On July 25, 1997, prior to the imposition of sentence,
appellant argued for a new trial based on, inter alia, the
Commonwealth's failure to provide exculpatory information about
one of its witnesses and the trial court's in camera questioning
of two jurors during trial without appellant being present.
FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
After the jury found appellant guilty, appellant learned
that Robert Moore, one of the witnesses at appellant's February
28, 1997 trial, had been arrested in Frederick County on June
27, 1996 for driving under the influence and speeding. His
February 1997 trial on those charges was continued until a date
after appellant's trial. At Moore's DUI trial, he was placed on
probation. At the July 25, 1997 hearing, the prosecutor
conceded that knowledge of Moore's charges was properly imputed
to his office, however, he proffered that no one in his office
was aware of Moore's charges at the time. The prosecutor
further represented that Moore never asked for, nor did anyone
give him, a deal or special treatment in exchange for his
testimony. Appellant contends that withholding such evidence in
the possession of the Commonwealth required the trial court to
set aside the verdict and grant him a new trial.
Due process requires the Commonwealth to disclose all
exculpatory evidence to an accused. Allen v. Commonwealth, 20 Va.
App. 630, 637, 460 S.E.2d 248, 251 (1995) (citing Brady v.
Maryland, 373 U.S. 83 (1963)). "Exculpatory evidence" is defined
- 2 - as evidence that is "material to guilt or punishment and favorable
to the accused," id., and includes impeachment evidence. See
United States v. Bagley, 473 U.S. 667, 676 (1985); Robinson v.
Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986).
Evidence is "material," and its nondisclosure justifies reversal
on appeal, only "if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different." Bagley, 473 U.S. at 682;
see Correll v. Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352, 358
(1987). "'A "reasonable probability" is a probability sufficient
to undermine confidence in the outcome.'" Soering v. Deeds, 255
Va. 457, 464, 499 S.E.2d 514, 517 (1998) (quoting Bagley, 473 U.S.
at 682). Therefore, 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. Id. "The mere possibility that
an item of undisclosed information might have helped the defense
. . . does not establish 'materiality' in the constitutional
sense." United States v. Agurs, 427 U.S. 97, 109-10 (1976).
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
So viewed, the evidence proved that, around 6:30 p.m. on September
12, 1996, Willie Burns was driving a Ford Escort in which Hartley
- 3 - was shot and killed while a front seat passenger. Chansey Fasano
was a rear seat passenger in the car.
Burns testified that he started dating Hartley about a month
before her death. Prior thereto, she dated and lived with
appellant. About two weeks before the murder, Burns was present
when Hartley told appellant she no longer wanted to be with him,
she wanted to be with Burns. Burns explained how, on September
12, 1996, appellant recognized him driving Hartley and Fasano
through town and followed them in his white Mitsubishi 3000GT.
Burns tried to elude appellant, but was unable to do so.
Appellant followed Burns onto an entrance ramp to Interstate 81.
When appellant's car approached Burns' car from the right side,
Hartley yelled out that appellant had a gun. Seconds later, Burns
heard a gunshot, and Hartley fell over beside him.
Fasano corroborated Burns' account of how appellant followed
and chased them. Fasano heard the fatal gunshot and saw Hartley
slump over onto Burns' shoulder.
Carey Davis met and spoke with appellant in the afternoon on
the day of the murder. Davis and Hartley conversed for a short
time. When Davis indicated she had to go, appellant said, "'I
have got to find that crazy-ass Kathy.'" Appellant also told
Davis, "'One of the these days I am going to kill that girl.'"
A few days before the murder, appellant visited Susan French,
a special prosecutor for the City of Winchester. French testified
that appellant was concerned that Hartley had become associated
- 4 - with persons dealing in illegal drugs and had again become
addicted to crack cocaine. Appellant offered to work undercover.
French wrote down the information and said she would contact local
authorities. French testified that appellant told her that
"[s]omebody had better get it under control" and that, "if
somebody didn't get it under control," and if "Kathy didn't get
off the drugs," appellant "was going to have to kill Kathy."
Two days before the murder, James Jackson visited Hartley, a
former co-worker. Appellant was present. Jackson testified that
appellant "had a gun." When Hartley walked Jackson to the door so
he could leave, appellant "[t]urned the gun" at Hartley.
Douglas Delagaetano, a forensic scientist, tested evidence
collected from appellant's car by police. He found gunshot
residue from samples taken from the steering wheel and on the
driver's side doorpost.
Sometime before 10:00 p.m. on the day of the murder,
appellant left a note for his son at Melissa Thomas' house. The
note read, in pertinent part,
I leave you all my worldly belongings. Please be good and always remember not to be bad like me.
The day after the murder, Robert Moore recognized a newspaper
photograph of the Escort driven by Burns, so he contacted
authorities to report an incident he witnessed the previous day
while driving. He testified that, around 6:40 p.m. on September
12, 1996, a sports car resembling appellant's passed him on the
- 5 - right shoulder of an interstate entrance ramp. Moore described
the driver as a fair-skinned African-American man. Once on the
highway, the car pulled behind a car resembling the one driven by
Burns. Moore looked down at his dashboard, then "heard a pop."
Moore then saw the Escort swerve from the travel lane to the
shoulder and back while the car resembling appellant's car sped
away.
Appellant has failed to prove there is a reasonable
probability that, had the evidence of the criminal charges against
Moore been disclosed to the defense, the result of the proceeding
would have been different. See Bagley, 473 U.S. at 682. Moore's
testimony was merely cumulative of the testimony of Burns and
Fasano. Thus, absent Moore's testimony, we find the testimony of
Burns and Fasano, in conjunction with other evidence of
appellant's statements and conduct before and after the murder,
more than sufficient to prove beyond a reasonable doubt that
appellant was the murderer. Accordingly, the trial court did not
err in denying appellant's motion for a new trial.
DENIAL OF RIGHT TO PUBLIC TRIAL
After the presentation of evidence by both parties, the trial
court advised the parties that two jurors admitted knowing Eric
Roberts, appellant's brother and a witness for the defense. When
he testified, they recognized him as a bus driver with whom they
were familiar. The trial court agreed with defense counsel that
it should voir dire the two jurors before the jury began
- 6 - deliberating. Appellant, through counsel, initially asserted that
he should be present when the trial court questioned the jurors.
However, the following colloquy then occurred between the trial
court and counsel:
[DEFENSE COUNSEL]: Would the Court want to do it without us here and then tell us on the record what occurred? Do you think the [two] Jurors would be less intimidated by that? Perhaps that might be the best way to do it.
THE COURT: I have no objection, particularly if you propose it, but –
[DEFENSE COUNSEL]: I think I will propose it that way. I certainly trust Your Honor's ability to ask them the right questions and perhaps with nobody in the courtroom, it might be certainly less intimidating.
[PROSECUTOR]: I agree.
[DEFENSE COUNSEL]: I agree with that too.
The trial court advised counsel that it would notify them if it
appeared either juror's familiarity with the defense witness
presented "a problem" with their continuing to sit on the jury.
The two jurors admitted knowing Eric Roberts through his
employment as a bus driver. Both jurors indicated that they had
no personal or social relationships with Roberts, they were not
biased in any way against him, and they could judge his
credibility fairly and impartially. After the in camera meeting
with the jurors, the trial court advised counsel, "Gentlemen, I
investigated the matter we discussed earlier and found no
- 7 - difficulty." Defense counsel thanked the trial court, after
which the trial court instructed the jury.
Assuming that this was a critical stage of the proceedings,
appellant cannot now complain that the trial court erred when it
did as he requested through counsel. "'No litigant, even a
defendant in a criminal case, will be permitted to approbate and
reprobate - to invite error . . . and then to take advantage of
the situation created by his own wrong.'" Manns v.
Commonwealth, 13 Va. App. 677, 680, 414 S.E.2d 613, 615 (1992)
(quoting Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d
46, 54 (1988)). See also Doe v. Simmers, 207 Va. 956, 960, 154
S.E.2d 146, 149 (1967). Accordingly, the trial court did not
commit reversible error.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
- 8 -