COURT OF APPEALS OF VIRGINIA
Present: Senior Judges Annunziata, Clements and Haley UNPUBLISHED
DEVRICK RAQUAN GAIL MEMORANDUM OPINION * v. Record No. 1327-21-2 PER CURIAM OCTOBER 11, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenkins, Jr., Judge
(Maureen L. White, on brief), for appellant. Appellant submitting on briefs.
(Jason S. Miyares, Attorney General; Matthew P. Dullaghan, Senior Assistant Attorney General, on briefs), for appellee. Appellee submitting on briefs.
A jury convicted Devrick Raquan Gail of first-degree murder and use of a firearm in the
commission of a felony. Counsel for Gail filed a brief on his behalf accompanied by a motion for
leave to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967). A copy of
that brief has been furnished to Gail with sufficient time to raise any matter that he chooses. Gail
has filed a pro se supplemental opening brief. After examining the briefs and record in this case, we
affirm the trial court’s judgment. We unanimously hold that oral argument is unnecessary because
“the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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 at trial.” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In so
doing, we discard any of Gail’s conflicting evidence and regard as true all credible evidence
favorable to the Commonwealth and all inferences that may reasonably be drawn from that
evidence. Gerald, 295 Va. at 473.
On the morning of January 2, 2018, Davon Daniels and his girlfriend, Alexus Barbee, were
in their bedroom watching television when they heard “a very loud knock” at their apartment door.
Barbee remained in the bedroom while Daniels answered the door. Barbee overheard Daniels ask,
“Who is it?” She then heard a voice respond, “It’s me, it’s Quan.” Barbee recognized the voice as
Gail’s. She was familiar with Gail’s voice because he had visited Daniels and Barbee in their
apartment “[e]veryday” for the preceding two months. From the bedroom, Barbee heard Daniels
and Gail talking. After a couple of minutes, Barbee heard gunshots, followed by Daniels calling out
to her. Barbee ran into the living room and found Daniels alone, face down on the floor. He told
her he had been shot and to call 911.
1 Portions of the record in this case were sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues Gail has raised. Evidence and factual findings below that are necessary to address the assignment of error are included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). -2- During the recorded 911 call, the 911 dispatcher asked Barbee who had shot Daniels.
Barbee spoke with Daniels and asked him, “Who?” Daniels answered, “Quan,” and Barbee
repeated Quan’s name.2
Barbee placed the 911 call at 11:22 a.m. Officer M. Bryson reached the apartment at
11:24 a.m.; his body-worn camera recorded his entry into the building and his interaction with
Barbee. When Bryson arrived, Daniels was alive and “shaking.” Barbee, who was on the floor next
to Daniels, related that Daniels had told her “Quan” was the shooter. Bryson’s body-worn camera
continued to record Barbee as she spoke on the phone and told a third party that “Quan” had shot
Daniels.
Firefighters reached the apartment shortly after Bryson. Daniels had a “very faint pulse”
when they arrived, but his heart stopped, and by the time he reached a local hospital, he was
pronounced dead. An autopsy revealed that Daniels had been shot in the back multiple times,
perforating his heart and lung.
Surveillance cameras at Barbee’s apartment complex recorded a black Ford Fusion arriving
at the parking lot outside her building at approximately 10:42 a.m. on the morning of the murder.
After approximately fifteen minutes, Gail and Deondre Wilson exited the black car and entered
Barbee’s building at 10:58 a.m.
At trial, Wilson identified himself and Gail in the footage. Wilson testified that they entered
the building together, but Wilson knocked on his grandmother’s first-floor apartment door while
Gail approached the stairs. Wilson testified that Daniels’s apartment was at the top of the stairs.
Wilson saw no one other than Gail in the interior hallway, and the stairwell was open to the first
floor. Upon hearing gunfire, Wilson fled from the building and waited outside until he saw Gail
2 At trial, the 911 call was played for the jury. The record includes a transcript of the 911 call that was not admitted into evidence. -3- exit behind him. Surveillance footage showed Gail and Wilson walking away briskly in opposite
directions; neither man returned to the Ford Fusion. When the police searched the Ford Fusion,
they found mail and a rental agreement bearing Gail’s name.
Four bullet casings were recovered from the murder scene and submitted for forensic
analysis. Subsequent forensic analysis determined that each casing was fired from the same gun,
possibly a Glock. The casings were compared to a Glock recovered the next day from another
apartment building in the same complex following the police pursuit of an individual named Jamie
Phillips, but forensic analysis eliminated that gun as the murder weapon.
At the conclusion of the evidence, the jury convicted Gail of first-degree murder and use of
a firearm in the commission of a felony. Gail appeals.
ANALYSIS
A. Opening Brief
Gail challenges the sufficiency of the evidence supporting his convictions, asserting that the
evidence failed to prove beyond a reasonable doubt he was the perpetrator. He stresses that
Daniels’s last words on the 911 tape are unintelligible and that he was likely incoherent from loss
of blood and diminished brain function. Further, he maintains that he was not in the building
long enough to murder Daniels. Gail emphasizes that Barbee testified that “several minutes
elapsed” between the time Wilson opened the door and gunfire erupted and she “could not say
whether anyone else . . . entered the apartment.” He suggests that, based on the
Commonwealth’s evidence, he lacked sufficient time to murder Daniels. Moreover, based on the
appearance of two men approaching Daniels’s apartment building after Gail’s entry, Gail
theorizes that, “[i]f the two men . . . saw [him], it is a reasonable hypothesis that they used
[Gail]’s name to gain entry to Daniels’s apartment” and murder him. Thus, Gail contends that
-4- the evidence was insufficient to prove he was the perpetrator because it failed to exclude a
reasonable hypothesis that the two men committed the offenses. We disagree.
“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) (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)). “Rather, 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)).
“At trial, the Commonwealth bears the burden of proving the identity of the accused as
the perpetrator beyond a reasonable doubt.” Cuffee v. Commonwealth, 61 Va. App. 353, 364
(2013) (quoting Blevins v. Commonwealth, 40 Va. App. 412, 423 (2003)). As with any element
of an offense, identity may be proved by direct or circumstantial evidence. Crawley v.
Commonwealth, 29 Va. App. 372, 375 (1999). “[C]ircumstantial evidence is competent and is
entitled to as much weight as direct evidence[,] provided that the circumstantial evidence is
sufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Finney v.
Commonwealth, 277 Va. 83, 89 (2009) (second alteration in original) (quoting Dowden v.
Commonwealth, 260 Va. 459, 468 (2000)). “The statement that circumstantial evidence must
exclude every reasonable theory of innocence is simply another way of stating that the
-5- Commonwealth has the burden of proof beyond a reasonable doubt.” Vasquez, 291 Va. at
249-50 (quoting Commonwealth v. Hudson, 265 Va. 505, 513 (2003)).
To satisfy its burden of proof, the Commonwealth must exclude “every reasonable
hypothesis of innocence, that is, those ‘which flow from the evidence itself, and not from the
imagination of defendant’s counsel.’” Tyler v. Commonwealth, 254 Va. 162, 166 (1997)
(quoting Turner v. Commonwealth, 218 Va. 141, 148 (1977)). This “reasonable-hypothesis
principle,” however, “is not a discrete rule unto itself” and “does not add to the burden of proof
placed upon the Commonwealth in a criminal case.” Vasquez, 291 Va. at 249-50. The
Commonwealth need not “negate what ‘could have been’ or what was a ‘possibility.’” Nelson v.
Commonwealth, 281 Va. 212, 218 (2011). Thus, while “a factfinder cannot ‘arbitrarily’ choose,
as between two equally plausible interpretations of a fact, one that incriminates the defendant,”
an arbitrary choice occurs “only when no rational factfinder could believe the incriminating
interpretation of the evidence and disbelieve the exculpatory one.” Vasquez, 291 Va. at 250.
“When examining an alternate hypothesis of innocence, the question is not whether ‘some
evidence’ supports the hypothesis, but whether a rational factfinder could have found that the
incriminating evidence renders the hypothesis of innocence unreasonable.” Id. (quoting Hudson,
265 Va. at 513).
Here, Daniels remained conscious after he was shot and was sufficiently coherent to tell
Barbee to call 911. As Barbee spoke with the 911 operator, she asked Daniels who had shot him,
and Daniels answered, “Quan.” The jury listened to the 911 call and was able to assess Daniels’s
response. An “appellate court does not ‘retry the facts,’ reweigh the evidence, or make its own
determination of the ‘credibility of [the] witnesses.’” Yahner v. Fire-X Corp., 70 Va. App. 265,
273 (2019) (alteration in original) (quoting Jeffreys v. Uninsured Employer’s Fund, 297 Va. 82,
87 (2019)). That deference applies even to factual findings regarding recordings, sometimes
-6- referred to as a “silent witness.” Donati v. Commonwealth, 37 Va. App. 575, 581 (2002)
(Benton, J., dissenting). “[R]ecording[s] . . . provide[] depictions of physical facts that present[]
a . . . question [for the fact finder].” Id. Here, not only did the jury have the opportunity to hear
Daniels’s final words identifying Gail, Barbee also testified that he told her Gail was the shooter.
Moreover, she repeated his identification to the 911 operator, Bryson, and a third party
immediately after the shooting.
Although Gail asserts that Daniels’s identification of him was not credible because his
cognitive capacity was compromised by his injuries, Daniels’s identification was corroborated by
other evidence. See Lambert v. Commonwealth, 70 Va. App. 740, 760 (2019) (holding that a
witness’s testimony was not inherently incredible as a matter of law when it was corroborated by
other evidence). Barbee recognized Gail’s voice, heard him identify himself by name, and heard
him talking to Daniels immediately before the shooting. Surveillance footage depicted Gail and
Wilson arriving in a black Ford Fusion before the murder and then approaching Daniels’s
apartment building shortly before the shooting. Wilson confirmed that he and Gail entered the
building minutes before the murder and that Gail approached the stairs to Daniels’s apartment in
the interior hallway. Although the entrance to Daniels’s apartment was visible from the first
floor, Wilson saw no one else in the interior hallway before he heard gunfire. Upon hearing
gunfire, Wilson fled the building and waited; moments later, Gail emerged and stood next to
Wilson briefly before the two men parted ways and walked in different directions. Documents
linked to Gail were found in the car he and Wilson drove to the scene of the murder.
“The sole responsibility to determine the credibility of witnesses, the weight to be given
to their testimony, and the inferences to be drawn from proven facts lies with the fact finder.”
Blankenship v. Commonwealth, 71 Va. App. 608, 619 (2020) (quoting Ragland v.
Commonwealth, 67 Va. App. 519, 529-30 (2017)). Wilson’s testimony and the surveillance
-7- footage demonstrated that no one else entered the building before Daniels was shot. Although
Gail suggests that other individuals depicted in surveillance footage near Daniels’s building
could have committed the murder, the apartment surveillance footage showed the two men
suddenly retreating to the parking lot shortly before Gail and Wilson exited the building,
permitting a rational inference that the two men retreated when they heard gunfire and played no
role in Daniels’s murder. Viewed as a whole, the evidence supported a rational finding that
Daniels’s identification of Gail was credible and that Gail was the perpetrator. Accordingly, the
evidence was competent, credible, and sufficient to prove beyond a reasonable doubt that Gail was
guilty of first-degree murder and use of a firearm in the commission of a felony.
B. Pro Se Supplemental Opening Brief
In his pro se supplemental opening brief, Gail presents eighteen assignments of error. 3
Generally, he challenges certain evidentiary rulings and the jury selection process. He also
asserts that his court-appointed counsel had a conflict of interest, depriving him of due process
and effective assistance of counsel. Finally, he maintains that the Commonwealth failed to
disclose certain potentially exculpatory emails linking the murder to a third party, thereby
violating his rights under Brady v. Maryland, 373 U.S. 83 (1963). We disagree.
In reciting the facts pertinent to Gail’s pro se supplemental opening brief, we continue to
“recite the [facts] ‘in the “light most favorable” to the Commonwealth, the prevailing party in the
trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v.
Cady, 300 Va. 325, 329 (2021)). At trial, Gail called Detective Sleem, the lead detective
investigating Daniels’s murder, to testify as a defense witness. Before Sleem took the stand,
however, the Commonwealth requested that Gail proffer Sleem’s testimony to avoid testimony
3 Gail also includes two additional arguments under headings 19 and 20 that are not encompassed by his assignments of error. -8- “that m[ight] cause a mistrial.” The Commonwealth anticipated that Gail might intend to
explore the “recovery of th[e] weapon” in the neighboring apartment the day after the shooting.
Although forensic analysis had excluded that gun as the weapon involved in Daniels’s murder, it
had led to firearm charges against an individual named Jamie Phillips, and Gail’s co-defense
counsel, Mr. Barbour, who was a former Commonwealth’s attorney, had investigated and nolle
prosequied the charges against Phillips. Before Sleem testified, the Commonwealth stated for
the record that Barbour had emailed Sleem about Phillips during his tenure as a
Commonwealth’s attorney and “actually ha[d] knowledge of that file.”
Barbour’s co-counsel responded that the Commonwealth had apprised him of “this issue”
before trial 4 and defense counsel “did a thorough analysis to determine whether or not there
might be any potential conflict of interest under the Rules of Professional Responsibility, and
essentially there is none, whatsoever.” Defense counsel emphasized that the Commonwealth had
confirmed that Gail had been provided all exculpatory evidence and that Barbour’s only role in
the Phillips weapon investigation was to nolle prosequi the charges against Phillips. Gail
proffered that the testimony he expected to elicit from Sleem was that “item fourteen,” the gun
tested in the forensic analysis report, was recovered at a nearby apartment building the day after
Daniels’s murder. Further, he proffered that Sleem would testify that, based on police reports,
the gun was recovered from that apartment after the police pursued Phillips to the apartment and
searched it.
The Commonwealth objected that any information Sleem could provide would be
hearsay. Defense counsel responded that Sleem’s testimony “would . . . be relevant to the scope
and thoroughness of her investigation[.]” Defense counsel also stated, “if there is an objection to
4 In fact, Gail had cross-examined Barbee about Phillips, the subject of Barbour’s and Sleem’s communications. -9- a potential conflict, I am happy to have a candid conversation with Detective Sleem, but I can’t
fathom what potential conflict could exist.” Defense counsel continued, “If there are emails the
Commonwealth is referencing between [Barbour] and Detective Sleem concerning the case that
are substantive in nature, I don’t know what those are. [Barbour] has no recollection of it,
whatsoever.” Gail did not ask that the Commonwealth produce the emails or seek a continuance
to review them.
At the Commonwealth’s behest, defense counsel confirmed in open court that Gail had
been apprised of Barbour’s involvement in the Phillips firearm investigation. Barbour’s
co-counsel stated, “In the presence of all parties, I have advised Mr. Gail as to all facets of the
situation that have been made aware [sic] to me. He doesn’t have any objection with proceeding
[sic] to trial as his counsel.” The trial proceeded, and Gail called Sleem as a witness. Sleem’s
testimony was hampered by hearsay issues, but he did testify that he attempted to interview
Phillips the day after Daniels’s murder in connection with a firearm that was recovered from a
building in Daniels’s apartment complex.
After the jury convicted Gail, he moved to set aside the verdict, claiming that Barbour’s
involvement in Phillips’s prosecution created a conflict of interest that interfered with his ability
to call Phillips, “a potentially relevant” defense witness. Gail maintained that he had directed
Barbour to subpoena Phillips and call him as a witness, but Phillips was not subpoenaed and did
not testify. Gail asserted that, due to Barbour’s conflict of interest, he had been denied his Sixth
Amendment right to effective assistance of counsel and his Fourteenth Amendment right to due
process. Gail proffered that, “[u]pon information and belief, Mr. Phillips’s testimony would
have cast doubt on whether Defendant possessed a firearm and/or whether Defendant shot the
victim[.]” He asserted in his motion that the trial court should have declared a mistrial upon
learning of Barbour’s conflict of interest. In the same motion, Gail argued that the
- 10 - Commonwealth had withheld exculpatory evidence, i.e., a recorded jailhouse visit between Gail
and Wilson in which Wilson allegedly admitted he had lied to the police about Gail’s
involvement in the murder.
The trial court held two hearings on Gail’s motion. During the first hearing, Gail asserted
that he never consented to Barbour continuing to represent him after he learned of the conflict.
He also maintained that he was entitled to a new trial because the Commonwealth did not
disclose the Barbour email exchange with Sleem until after trial. In support of his motion, Gail
presented a February 6, 2018 email from then Assistant Commonwealth’s attorney Barbour to
Sleem forwarding an email chain between Barbour and a police officer pertaining to the Phillips
investigation, including forensic analysis of the recovered gun. The emails did not refer to
Daniels’s murder.
The Commonwealth agreed that the email chain had not been provided to Gail before
trial but stressed that his attorneys had been informed of its existence. The Commonwealth
emphasized Gail’s attorneys had been informed during discovery of “the other weapon found
related to Mr. Phillips arrest” and had received “a disc of photos” from the scene where the
weapon was recovered. It had also provided Gail’s counsel in “May of 2018, the actual written
statement from the leaseholder describing what happened when Mr. Phillips came to the house.”
The Commonwealth stated that Gail’s attorney had been advised before trial “that [the Phillips]
weapon was not the murder weapon.” In its written response to Gail’s motion, the
Commonwealth also noted that Phillips was, in fact, present at trial and available to testify.
Finally, the Commonwealth emphasized that Wilson’s “jail visit” was not recorded because the
jail recording system had malfunctioned on the day in question, that no recordings of visits with
any inmates existed, and that one of Gail’s former attorneys had even been provided funds to
verify the malfunction.
- 11 - Gail, who was represented by new counsel at the hearing on his motion to set aside the
verdict, never proffered Phillips’s expected testimony, but he did proffer erroneously that “there
[wa]s a good faith question as to whether or not that was the firearm that resulted in the
decedent’s death.” He asserted that “[t]hat [wa]s something . . . that could have been . . .
introduced during the trial. [But] Mr. Barber [sic] could not have done that.” After the
Commonwealth reiterated that the gun had been excluded forensically as the murder weapon,
Gail asserted that he was nevertheless entitled to argue that issue to the fact finder as a
hypothesis of innocence. The Commonwealth responded that the evidence about Phillips was
available to Gail before trial, that Phillips was present during trial, and that Gail had expressly
waived any conflict of interest regarding Barbour. At the conclusion of the hearings, the trial
court denied the motion to set aside the verdict. 5
1. Rule 5A:20 (Pro se Assignments of Error 7, 8, 9, 10, 11, 12, 14, 15, 18 and Arguments 19 and 20)
With respect to assignments of error 7 through 12, 14, 15, and 18, Gail’s pro se brief does
not comply with Rule 5A:20(e) because it cites no legal authority other than general references
to his constitutional rights and offers no supporting argument. “Rule 5A:20(e) requires that an
appellant’s opening brief contain ‘[t]he principles of law, the argument, and the authorities
relating to each question presented.’” Fadness v. Fadness, 52 Va. App. 833, 850 (2008)
(alteration in original) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734 (2008)).
“Unsupported assertions of error ‘do not merit appellate consideration.’” Id. “A court of review
is entitled to have the issues clearly defined and to be cited pertinent authority. The appellate
court is not a depository in which [Gail] may dump the burden of argument and research.” Id.
5 Gail filed several pro se post-verdict motions that the trial court did not address. Accordingly, we do not include them in our analysis. - 12 - “[W]hen a party’s ‘failure to strictly adhere to the requirements of Rule 5A:20(e)’ is
significant, ‘the Court of Appeals may . . . treat a[n assignment of error] as waived.’” Atkins v.
Commonwealth, 57 Va. App. 2, 20 (2010) (quoting Parks v. Parks, 52 Va. App. 663, 664
(2008)). A pro se litigant “is no less bound by the rules of procedure and substantive law than a
defendant represented by counsel.” Townes v. Commonwealth, 234 Va. 307, 319 (1987); see
also Francis v. Francis, 30 Va. App. 584, 591 (1999) (“Even pro se litigants must comply with
the rules of court.”).
Gail utilized the “‘throw everything at the wall and hope something sticks’ approach to
appellate advocacy” that this Court has previously condemned. Coe v. Coe, 66 Va. App. 457,
470 (2016) (quoting Fadness, 52 Va. App. at 850-51). This “tactic ‘is as unappreciated as it is
ineffective.’” Id. (quoting Fadness, 52 Va. App. at 851). “When a party believes the circuit
court erred, it is the duty of that party ‘to present that error to us with legal authority to support
their contention.’” Id. (quoting Fadness, 52 Va. App. at 851). With respect to assignments of
error 7 through 12, 14, 15, and 18, Gail did not do so. Because Gail’s failure to comply strictly
with the requirements of Rule 5A:20 is significant, he has waived these assignments of error.
See Parks, 52 Va. App. at 664 (“[W]hen a party’s ‘failure to strictly adhere to the requirements
of Rule 5A:20(e)’ is significant, ‘the Court of Appeals may . . . treat a question presented as
waived.’”) (quoting Jay v. Commonwealth, 275 Va. 510, 520 (2008)).
Further, with respect to assignments of error 12, 15, and 18, Gail’s pro se brief does not
comply with Rule 5A:20(c). Rule 5A:20(c) requires that “[a]n exact reference to the page(s) of
the transcript, written statement of facts, record, or appendix where the alleged error has been
preserved in the trial court or other tribunal from which the appeal is taken[.]” It also provides
that,
[i]f the error relates to failure of the . . . court below to rule on any issue, error must be assigned to such failure to rule, providing an - 13 - exact reference to the page(s) of the transcript . . . [or] . . . record . . . where the alleged error has been preserved in the tribunal below, and specifying the opportunity that was provided to the tribunal or court to rule on the issue(s).
Rule 5A:20(c).
Finally, Gail’s pro se opening brief violates Rule 5A:20(c) because it presents arguments
that are not related to an assignment of error. Under the heading “Assignments of Error,” Gail
presents eighteen assignments of error; however, despite the lack of assignments of error
numbered 19 and 20, he includes additional arguments numbered 19 and 20. 6 “An assignment of
error is not a mere procedural hurdle an appellant must clear in order to proceed with the merits
of an appeal. Assignments of error are the core of the appeal.” Forest Lakes Cmty. Ass’n v.
United Land Corp. of Am., 293 Va. 113, 122 (2017). We are “limited to reviewing the
assignments of error presented by the litigant.” Banks v. Commonwealth, 67 Va. App. 273, 289
(2017). “Consequently, we do not consider issues touched upon by the appellant’s argument but
6 Under heading 19, Gail asserts that “[t]he Commonwealth withheld exculpatory video taken by someone play [sic] while Deondre [Wilson] testified.” Under heading 20, Gail contends that “[t]he trial court erred in not striking multiple jurors for cause who all expressed an inherent bias.” - 14 - not encompassed by his assignment of error.” Id. at 290. Because Gail’s arguments in headings
19 and 20 are not encompassed within his assignments of error, we do not address them. 7
Accordingly, based on Gail’s significant failures to comply with Rule 5A:20, he has
waived the issues in assignments of error 7 through 12, 14 through 15, and 18, as well the
arguments in headings 19 and 20. We therefore decline to consider these arguments.
2. Conflict of Interest (Assignments of Error 1, 2, 3)
Gail asserts that the trial court erred by appointing Barbour as one of his attorneys
because he was “disqualified by an actual conflict of interest to represent him at trial.” In related
arguments, Gail contends that the trial court erred by failing to conduct “a formal inquiry into . . .
Barbour[’s] . . . actual conflict,” as “the trial court knew or reasonably should have known [of the
conflict] from the record,” and further, that the trial court should have inquired whether Gail had
“in fact waived” Barbour’s conflict “knowingly and intelligently after full disclosure.” Gail
7 We also conclude that Gail failed to preserve the issue presented under heading 20. Gail asserts that the trial court erred by not striking multiple jurors for cause after they “expressed an inherent bias.” Specifically, he identifies four jurors by name whom he alleges should have been struck for cause. He cites “voir dire” as the place in the record where he preserved this assignment of error, but nothing in the record demonstrates that Gail moved to strike the four jurors in question or that he objected to the trial court’s decision to seat them. “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. Under the rule, “a specific argument must be made to the trial court at the appropriate time, or allegation of error will not be considered on appeal.” Edwards v. Commonwealth, 41 Va. App. 752, 760 (2003) (en banc). “One of the tenets of Virginia’s jurisprudence is that trial counsel must timely object with sufficient specificity to an alleged error at trial to preserve that error for appellate review.” Perry v. Commonwealth, 58 Va. App. 655, 666 (2011). Gail does not invoke the good cause or ends of justice exceptions to Rule 5A:18, and the Court will not apply the exceptions sua sponte. Edwards, 41 Va. App. at 761. Because the requirements of Rule 5A:18 have not been met, Gail has waived this argument. - 15 - maintains that, by appointing and allowing Barbour to represent him, he was deprived of his
Sixth Amendment right to counsel and his Fourteenth Amendment right to due process. 8
The Sixth Amendment of the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. “A defendant’s right to counsel under the Sixth Amendment
is violated by ‘an actual conflict of interest [that] adversely affected his lawyer’s performance.’”
Kenner v. Commonwealth, 71 Va. App. 279, 297 (2019) (alteration in original) (quoting Cuyler
v. Sullivan, 446 U.S. 335, 350 (1980)), aff’d, 299 Va. 414 (2021). “[I]f the possibility of a
conflict of interest is apparent, a trial court has a duty to conduct further inquiry to determine if
an actual conflict exists.” Dowell v. Commonwealth, 3 Va. App. 555, 559 (1987). Yet “[t]he
mere possibility of a conflict of interest, which is not apparent or to which no objection is made,
prompts no need for a trial court to conduct further inquiry.” Id. A trial court must conduct
further inquiry into an alleged conflict of interest “only when ‘the trial court knows or reasonably
should know that a particular conflict exists’—which is not to be confused with when the trial
court is aware of a vague, unspecified possibility of conflict.” Mickens v. Taylor, 535 U.S. 162,
168-69 (2002) (citation omitted) (quoting Sullivan, 446 U.S. at 347). A conflict of interest
implicates a circumstance that “affect[s] counsel’s performance” and does not raise “a mere
theoretical division of loyalties.” Id. at 171.
Here, the mere fact that Barbour represented the Commonwealth in a limited manner in
an unrelated criminal investigation does not rise to the level of an apparent conflict of interest.
Cf. Cantrell v Commonwealth, 229 Va. 387, 393-94 (1985) (holding that an attorney “necessarily
8 To the extent that Gail asserts that he was deprived of effective assistance of counsel due to Barbour’s conflict of interest, we do not address that argument. “Claims of ineffective assistance are not cognizable on direct appeal.” Vay v. Commonwealth, 67 Va. App. 236, 260 (2017); Lenz v. Commonwealth, 261 Va. 451, 460 (2001) (“Claims raising ineffective assistance of counsel must be asserted in a habeas corpus proceeding.”). - 16 - incurs a conflict of interest” to “the level of an overwhelming probability” where the attorney
“undertake[s] the civil representation of a victim, or the family of a victim, of a crime whose
perpetrator he must [also] prosecute” as a special prosecutor). Barbour did not continue to
represent the Commonwealth through the time of Gail’s arraignment, nor does Gail allege as
much. Phillips was not a co-defendant at Gail’s trial, and the Commonwealth did not call him as
a witness to testify against Gail. See Dowell, 3 Va. App. at 561 (holding that the
Commonwealth’s elicitation of testimony from two witnesses whom defense counsel was also
representing in connection with the defendant’s same offense “was sufficient to bring to the
court’s attention a conflict of interest and to trigger an appropriate inquiry”). Gail never
proffered any exculpatory evidence that Phillips could have provided in the event he had
testified. Thus, he did not demonstrate that Barbour’s prior representation of the Commonwealth
placed him in the position of having to “serve two masters” at the same time and be thus
“infect[ed] . . . with the possibility [of] private vengeance” against Gail. Cantrell, 229 Va. at
393-94.
Moreover, Barbour and his co-counsel were in the best position to determine whether
Barbour’s prior employment with the Commonwealth’s attorney posed a significant risk of
materially limiting his ability to represent Gail, and Barbour represented through co-counsel that
he had no recollection of the Phillips investigation and both defense attorneys proffered that they
had researched whether a potential conflict of interest existed and had determined that “there
- 17 - [wa]s none.” 9 Cf. Carter v. Commonwealth, 11 Va. App. 569, 574 (1991) (holding that the trial
court knew or should have known “a potential conflict of interest clearly existed” after defense
counsel represented that his ability to represent the defendant had been seriously compromised).
Thus, we decline to impose a duty on the trial court to conduct further inquiry based on
Gail’s speculative allegation that Barbour deliberately withheld exculpatory information about
Phillips due to a bias in favor of the Commonwealth, where defense counsel reassured the trial
court that no such conflict existed and Gail agreed to Barbour’s continued representation after his
role in Phillips’s investigation was disclosed. Accordingly, we hold that the trial court did not
commit reversible error by appointing Barbour to represent Gail, by failing to inquire further into
any potential conflict of interest, or by failing to engage in a colloquy with Gail to ascertain
whether he had “in fact” waived any conflict of interest.
3. Brady 10 Violation (Assignments of Errors 1, 13)
In support of his conflict-of-interest argument in the first assignment of error, Gail
suggests that Barbour’s former employment as a Commonwealth’s attorney played a role in the
Commonwealth’s failure to disclose the email chain between Barbour and Sleem until after trial,
violating his right to exculpatory evidence under Brady, 373 U.S. 83. In his thirteenth
9 “Trial courts must rely in the first instance upon the good faith and good judgment of defense counsel who have an ethical obligation to avoid conflicting representation and to advise the court promptly when a conflict of interest arises.” Dowell, 3 Va. App. at 559. Further, Gail cites nothing in the record demonstrating he timely objected to Barbour’s continued representation of him. Rule 5A:18. To the contrary, after the matter was brought to the trial court’s attention, defense counsel consulted Gail and, through counsel, Gail affirmatively represented that he had no objection to proceeding with Barbour as counsel. “A party may not approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.” Cangiano v. LSH Bldg. Co., 271 Va. 171, 181 (2006). “The doctrine protects a basic tenet of fair play: No one should be permitted, in the language of the vernacular, to talk through both sides of his mouth.” W. Ref. Yorktown, Inc. v. Cty. of York, 292 Va. 804, 826 (2016) (quoting Wooten v. Bank of Am., N.A., 290 Va. 306, 310 (2015)). 10 Brady, 373 U.S. 83. - 18 - assignment of error, he expressly asserts that the Commonwealth “suppressed exculpatory Brady
material” in the form of “sensitive emails” between Barbour and the police and other
Commonwealth’s attorneys.
“In reviewing the denial of a Brady motion, the trial court’s factual findings will not be
disturbed absent clear error. In contrast, we review the trial court’s legal conclusions de novo.”
Church v. Commonwealth, 71 Va. App. 107, 116 (2019). “Under Brady, due process requires
that the prosecution disclose evidence favorable to the accused that is material to guilt or
punishment.” Id. at 117. “[T]o establish a Brady right to the disclosure of evidence, the
defendant must show that the items in question are (1) exculpatory, (2) not disclosed, and
(3) prejudicial as a result of the failure to disclose.” Garnett v. Commonwealth, 275 Va. 397,
410 (2008). “Brady does not provide a general right to discovery in criminal cases.” Church, 71
Va. App. at 116. Thus, the Commonwealth may summarize any potentially exculpatory
evidence to a defendant without running afoul of Brady, so long as its summary is “complete and
accurate.” Garnett, 275 Va. at 409.
Here, forensic examination of Phillips’s gun determined conclusively that it did not fire
the casings found in Daniels’s apartment. The Commonwealth disclosed the investigation into
that weapon and Phillips to Gail before trial, and based on that disclosure, Gail called Sleem as a
defense witness. Before trial, Gail never sought a continuance or claimed that the
Commonwealth had withheld exculpatory evidence about the Phillips’s investigation. Instead,
Gail elected to call Sleem as a defense witness and to imply, through his examination, that
Phillips was the perpetrator. The record does not support Gail’s Brady argument because the
Commonwealth disclosed the general parameters of the Phillips firearm investigation to him
before trial and because the specific email evidence relating to that investigation was not
- 19 - exculpatory. Accordingly, the trial court did not err by denying Gail’s motion to set aside the
verdict based on an alleged Brady violation.
4. Dying Declaration (Assignment of Error 5)
In the fifth assignment of error, Gail asserts that the trial court erred by admitting
“Daniels[’s] statement on an altered and digitally modified 911 call.” He asserts that Daniels’s
hearsay identification of him as the shooter should not have been admitted because it did not
qualify as a dying declaration and, even if it did, it was not reliable. Gail contends that Daniels’s
statement was not a dying declaration because Daniels never expressly stated he thought he was
dying when he made the statement. He also maintains that, even if Daniels believed he was
dying, he was not lucid when he identified Gail because Daniels mistakenly believed he had been
shot in the head.
An appellate court reviews a trial court’s decision regarding the admissibility of evidence
for abuse of discretion. Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 92 (2021). Although the
trial court has discretion, it is not “free to simply act in any way it may deem desirable under the
circumstances.” Id. Rather, “the court ‘has a range of choice, and that its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake of law.’” Id.
at 93 (quoting Landrum v. Chippenham and Johnston-Willis Hosps., Inc., 282 Va. 346, 352
(2011)). A deferential standard of review “applies to a trial court’s decision to admit statements
under the dying declarations exception to the hearsay rule[.]” Satterwhite v. Commonwealth, 56
Va. App. 557, 563 (2010). The trial court determines, “not only from the proofs, but from all the
circumstances of the case, whether the declarations are admissible.” Id. (quoting Swisher v.
Commonwealth, 67 Va. (26 Gratt.) 963, 974 (1875)).
To qualify as a dying declaration, the victim’s statement must be made “under a sense of
impending death” without any “expectation or hope of recovery” from his mortal wounds. Id. at
- 20 - 562 (quoting Clark v. Commonwealth, 235 Va. 287, 291 (1988)). “But the victim need not
verbalize his sense of impending death.” Id. The victim’s “consciousness [of impending death]
may be established . . . by the character and nature of the wound, his appearance and conduct
. . . .” Id. (quoting Hill v. Commonwealth, 43 Va. (2 Gratt.) 594, 608 (1845)).
Applying these principles, we hold that the trial court did not abuse its discretion by
admitting Daniels’s statement under the dying declaration exception to the hearsay rule. When
Daniels made the statement, he had sustained multiple gunshots, perforating his lung and heart.
By the time Bryson arrived at the apartment, Daniels could barely move his head. The severity
of Daniels’s wounds constituted circumstantial evidence from which the trial court could
conclude that Daniels “realized that there was no hope” and that his death was impending. Id. at
564. Accordingly, the trial court did not abuse its discretion by admitting his statement
identifying Gail as his killer.
5. Digital Modification of 911 Call (Assignments of Error 4, 5, 6)
Gail asserts that the trial court erred by allowing “an altered and digitally modified 911
call” into evidence, by admitting Daniels’s statements on the “altered” recorded call, and by
allowing Barbee to “interpret” what Daniels said during the “altered” call. Without any factual
or legal support, Gail maintains that “[t]he Commonwealth altered the recording to their benefit
and to [Gail’s] prejudice.” He claims that the trial court’s reliance on Ramseur v.
Commonwealth, Record No. 1122-16-4 (Va. Ct. App. Dec. 12, 2017), was misplaced because
Ramseur involved only amplification, while Donald Miller, an IT specialist, testified that he used
an editing program that altered the “binary code” of the 911 call recording. The record does not
support Gail’s assertion.
Miller expressly testified that he merely “boost[ed] the volume” on the segment of the
recording containing Daniels’s statement without “delet[ing] or chang[ing] any of the content of
- 21 - th[e] recording.” He denied altering the binary code of the recording. After considering Miller’s
testimony, the trial court found that the recording had not been altered. Accordingly, Gail’s
argument lacks merit.
Further, we find no merit in Gail’s argument that the trial court erred by allowing Barbee
to “interpret” Daniels’s statement on the 911 call. As the trial court correctly ruled, Barbee could
testify regarding what Daniels said to her because his statement was admissible under the
hearsay exception for dying declarations.
6. Failure to Preserve Jailhouse Recording (Assignment of Error 16)
Gail asserts that the Commonwealth’s attorneys “failed to preserve [Wilson’s]
exculpatory recorded video visit” with Gail during Gail’s incarceration in the Richmond City
Jail. He maintains that Wilson admitted during the visit that he had lied to the police “about
[Gail’s] involvement” in the murder.
Gail’s assignment of error does not challenge a ruling by the trial court. Our review is
limited to issues raised in the assignment of error. Banks, 67 Va. App. at 289. An issue that is
not encompassed by an assignment of error is waived. Simmons v. Commonwealth, 63 Va. App.
69, 75 n.4 (2014). Accordingly, as Gail does not contest a ruling by the trial court, there is
nothing for us to review. Williams v. Commonwealth, 57 Va. App. 341, 347 (2010).
7. Admission of Jailhouse Calls 45 and 561 (Assignment of Error 17)
Gail asserts that the trial court erred by admitting two recorded jailhouse phone calls into
evidence. With respect to jailhouse call “45,” he contends that the evidence established that the
call originated from another inmate’s “PIN num[b]er.” Although he concedes that Lieutenant
Miracle identified his voice on the call, Gail challenges the identification, asserting that “Miracle
is not a voice expert.” Gail argued below that Miracle’s testimony identifying Gail’s voice on
jailhouse calls from other inmates’ PIN numbers was insufficient to authenticate the recordings,
- 22 - but he never objected that Miracle could not identify his voice unless he was qualified as a
“voice expert.” 11
“Procedural-default principles require that the argument asserted on appeal be the same
as the contemporaneous argument at trial.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019).
“[N]either an appellant nor an appellate court should ‘put a different twist on a question that is at
odds with the question presented to the trial court.’” Id. (quoting Commonwealth v. Shifflett, 257
Va. 34, 44 (1999)). “Of critical importance in this case is the principle that ‘[n]ot just any
objection will do.’” Jones v. Commonwealth, 71 Va. App. 597, 606 (2020) (alteration in
original) (quoting Bethea, 297 Va. at 743). Instead, a trial court must be alerted to the precise
issue to which a party objects. Kelly v. Commonwealth, 42 Va. App. 347, 354 (2004). Here,
Gail presents different arguments on appeal than he did to the trial court. He does not invoke the
good cause or ends of justice exceptions to Rule 5A:18, and the Court will not apply the
exceptions sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761 (2003) (en banc).
Accordingly, as Gail raises a different argument on appeal than he did below, he has failed to
preserve this issue. Rule 5A:18.
Gail also asserts that he had never heard call 45 previously and that the Commonwealth
had not produced it during discovery. With regard to call 561, he asserts that it was “taken out of
context” and that he “did not ever hear the telephone call played.” Gail does not develop these
arguments further or provide any supporting legal authorities. Accordingly, he has failed to
comply with Rule 5A:20(e). We conclude that the defect in his brief is significant and therefore,
we decline to consider this argument. Parks, 52 Va. App. at 664.
11 Gail objected to Miracle’s characterization of Gail’s voice as “unique” on the basis that Miracle was not an expert, but he did not object generally to Miracle’s testimony identifying Gail’s voice in the jailhouse calls. - 23 - CONCLUSION
Accordingly, we affirm the trial court’s judgment and grant the motion for leave to
withdraw. See Anders, 386 U.S. at 744. Gail’s motion for the appointment of new counsel is
denied. This Court’s records shall reflect that Devrick Raquan Gail is now proceeding without
the assistance of counsel in this matter and is representing himself on any further proceedings or
appeal.
Affirmed.
- 24 -