COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank Argued at Chesapeake, Virginia
JEROME MOSES THORNTON MEMORANDUM OPINION * BY v. Record No. 2579-99-1 JUDGE LARRY G. ELDER DECEMBER 5, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Johnny E. Morrison, Judge
S. Jane Chittom, Appellate Counsel (Public Defender Commission, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Jerome Moses Thornton (appellant) appeals from his bench
trial conviction for the unlawful wounding of James Cary in
violation of Code § 18.2-51. 1 On appeal, he contends the trial
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant originally was indicted for malicious wounding in violation of Code § 18.2-51. The order of conviction recites that the court found him guilty of the lesser-included offense of unlawful wounding in violation of Code § 18.2-51. The sentencing order, however, purports to indicate that appellant was convicted for malicious wounding and cites an unrelated code section, § 18.2-250, which proscribes the possession of certain controlled substances. The trial transcript makes clear that the trial court "[found] [appellant] guilty of unlawful wounding," as confirmed by the conviction order and agreed upon by the parties. Therefore, we remand the matter to the trial court erroneously (1) denied his mistrial motion based on the
Commonwealth's failure to disclose the existence of a knife,
which he contends was material, exculpatory evidence; (2) denied
his motion for a continuance to secure testimony concerning the
previously undisclosed exculpatory evidence; and (3) held the
evidence sufficient to support his conviction given impeachment
of victim Cary and appellant's claim of self-defense. We hold
the evidence did not establish the Commonwealth should have
known the existence of the knife or the location from which it
was seized was exculpatory evidence. Further, the evidence
established that a diligent defense attorney would have been
aware of the existence and seizure of the knife prior to trial.
Because no discovery or due process violation occurred, the
trial court did not abuse its discretion in denying the mistrial
and continuance motions. Finally, Cary's testimony was not
inherently incredible, and that testimony, along with the
physical evidence, was sufficient to support appellant's
unlawful wounding conviction. Therefore, we affirm the
conviction.
court for the sole purpose of correcting the clerical errors in the sentencing order. See Tatum v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 138 (1994); see also Code § 8.01-428(B).
- 2 - A.
MISTRIAL AND CONTINUANCE MOTIONS
Whether to grant a motion for a mistrial or for a
continuance rests within the discretion of the trial court.
See, e.g., Novak v. Commonwealth, 20 Va. App. 373, 391-92, 457
S.E.2d 402, 410-11 (1995). Denial of either motion will be
reversed on appeal only upon a showing that the trial court
abused its discretion and that the party was prejudiced as a
result. See id. at 391-92, 457 S.E.2d at 411. "A court must
not exercise its discretion in a manner which would deny an
accused . . . sufficient time to investigate and evaluate the
evidence in preparation for trial." Lomax v. Commonwealth, 228
Va. 168, 172, 319 S.E.2d 763, 765 (1984).
"[T]he suppression by the prosecution of evidence favorable
to an accused upon request 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."
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10
L. Ed. 2d 215 (1963). "[I]nformation known to the police is
information within the Commonwealth's knowledge[,] and the
prosecutor is obliged to disclose [it] regardless of the state
of his actual knowledge." Moreno v. Commonwealth, 10 Va. App.
408, 418, 392 S.E.2d 836, 842-43 (1990). A Brady violation
occurs when the prosecution fails to disclose material
- 3 - exculpatory evidence within its exclusive control. See Lugo v.
Munoz, 682 F.2d 7, 9 (1st Cir. 1982), cited with approval in
United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990).
However, Brady is not violated "'if the evidence in question is
available to the defendant from . . . sources [other than the
government],'" Wilson, 901 F.2d at 380 (quoting United States v.
Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)), and would have
been "readily available to a diligent defense attorney" through
those other sources, Lugo, 682 F.2d at 9; cf. Coleman v.
Commonwealth, 27 Va. App. 768, 773-76 & n.2, 501 S.E.2d 461,
463-65 & n.2 (1998) (in case not implicating Brady because
evidence was not exculpatory, holding that defendant waived
statutory right to have Commonwealth furnish him with copy of
certificate of analysis it planned to introduce at trial because
defendant requested copy in discovery motion, agreed to appear
in Commonwealth's Attorney's office to receive items requested,
and never appeared in office to complete discovery). "'The
purpose of the Brady rule is . . . to assure that [the
defendant] will not be denied access to exculpatory evidence
known to the government but unknown to him.'" Lugo, 682 F.2d at
10 (quoting United States v. Ruggiero, 472 F.2d 599, 604 (2d
Cir. 1973)).
In appellant's case, the defense requested all exculpatory
material, and the Commonwealth responded that "no exculpatory
- 4 - evidence in this case is known to the Commonwealth." The
Commonwealth's attorney was charged with the knowledge of all
police in the jurisdiction involved in the case, and he admitted
he was unaware, prior to trial, of the existence of the second
knife or what Officer Jones would say about its seizure.
However, the existence of the knife was not inherently
exculpatory, and nothing in the record indicates the
Commonwealth should have been aware prior to trial that
appellant was proceeding on a theory of self-defense. 2 Thus, no
evidence established that the Commonwealth's lack of awareness
led to a discovery or due process violation.
Assuming the second knife was seized by Officer Jones in
connection with this case--a reasonable assumption given its
presence in the evidence bag and the testimony of Officer
Milteer that he did not seize the knife--no evidence either
previously admitted or proffered to the trial court at the time
of appellant's mistrial and continuance motions established that
the existence of the knife or the location from which Jones
seized it was exculpatory. The victim had testified that he was
unarmed during the altercation. If Jones, by way of example,
had told the Commonwealth's attorney he seized the second knife
2 Not until appellant's mistrial motion and case-in-chief did his theory of the case become clear, and no evidence ever established what Officer Jones would have said about his seizure of the knife.
- 5 - from appellant's room along with the meat cleaver or hatchet
appellant used to cut the victim, the Commonwealth would have
had no reason to believe the second knife was exculpatory and,
therefore, no duty to reveal its existence or the location from
which it was seized in response to the request for exculpatory
evidence.
Because appellant failed to establish at the time he moved
for the mistrial and continuance that the existence of the knife
or the location in which it was found was exculpatory or that
the Commonwealth should have known it may have been exculpatory
under appellant's theory of the case, the trial court did not
abuse its discretion in denying the motions.
Further, no reversible error occurred because the substance
of the evidence, if it was exculpatory, was "readily available
to a diligent defense attorney" through sources other than the
government. Lugo, 682 F.2d at 9; Wilson, 901 F.2d at 380.
Appellant himself testified that Cary began the altercation by
threatening appellant with a pocketknife. Defense witness
Barker testified that he told one of the officers at the scene
that Cary threatened appellant with a knife and that Barker
observed one of the officers seize this knife from Cary's pocket
at the scene. 3 A diligent defense attorney would have been aware
3 To the extent this testimony could be considered an informal proffer of Officer Jones' expected testimony, it was
- 6 - of these representations prior to trial, would have taken
advantage of the opportunity under the discovery order to view
the Commonwealth's tangible evidence, cf. Coleman, 27 Va. App.
at 773-76, 501 S.E.2d at 463-65, and, upon discovering the
second knife in the evidence bag, would have taken steps to
obtain further information about it--by questioning the
Commonwealth's attorney about the knife, arranging to speak to
Officer Jones about the knife, or at least refusing to stipulate
to the chain of custody of the evidence or subpoenaing Officer
Jones to assure his availability for trial.
Under these circumstances, a diligent defense attorney
should have had ample time to obtain and use this information in
preparing for trial. Therefore, we hold the trial court did not
abuse its discretion in denying the mistrial or continuance
motions.
B.
SUFFICIENCY OF THE EVIDENCE
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
offered and admitted only after the trial court had denied appellant's mistrial and continuance motions, and appellant did not renew the motions after this informal proffer was made. Therefore, the trial court had no duty to revisit the issue.
- 7 - Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
conclusions of the fact finder on issues of witness credibility
may be disturbed on appeal only if this Court finds that the
witness' testimony was "inherently incredible, or so contrary to
human experience as to render it unworthy of belief." Fisher v.
Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984).
Appellant was charged with malicious wounding and convicted
for the lesser-included offense of unlawful wounding. Code
§ 18.2-51 provides:
If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
If a wounding remains unlawful but results from "heat of
passion," such as rage or fear, rather than malice, it
constitutes unlawful wounding rather than malicious wounding.
See Miller v. Commonwealth, 5 Va. App. 22, 24-25, 359 S.E.2d
841, 842 (1987). Finally, where the accused responds to a
threat of harm from another and "the amount of force [the
accused] use[s] [is] reasonable in relation to the harm
threatened," the accused may be acquitted based on self-defense.
See Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d
24, 25-26 (1989).
- 8 - Although appellant contends he should have been acquitted
based on self-defense, the evidence, viewed in the light most
favorable to the Commonwealth supports the trial court's finding
that appellant committed an unlawful wounding. The undisputed
evidence established that appellant attacked and cut Cary with
an eleven-inch meat cleaver. Cary testified that he did nothing
to provoke the attack and that he did not have a knife in his
possession during the altercation. The trial court was entitled
to reject the testimony of Barker and appellant that it was Cary
who first brandished a knife and that appellant did not injure
Cary until after Cary threatened appellant with the knife. The
mere fact that the police officers responding to the scene
recovered a knife that may have belonged to Cary did not compel
the conclusion, contrary to Cary's testimony, that Cary had the
knife in his possession or that he used it to threaten
appellant. Finally, even if the trial court concluded that Cary
wielded a knife, the undisputed evidence established that Cary's
injuries were severe whereas appellant sustained no injuries.
These facts permitted the trial court to find that the amount of
force appellant used was not reasonable in relation to the harm
threatened, thereby justifying the trial court's rejection of
appellant's self-defense claim.
For these reasons, we hold the trial court's denial of
appellant's mistrial and continuance motions was not erroneous
- 9 - and that the evidence, viewed in the light most favorable to the
Commonwealth, was sufficient to support appellant's conviction
for unlawful wounding. Therefore, we affirm the conviction.
However, due to the clerical errors in the sentencing order
regarding the offense for which appellant was convicted, see
supra footnote 1, we remand this matter to the trial court for
the sole purpose of amending the sentencing order to reflect
that appellant was convicted of unlawful wounding in violation
of Code § 18.2-51.
Affirmed on the merits and remanded with instructions.
- 10 - Benton, J., dissenting.
I would hold that when the prosecutor disclosed for the
first time at trial evidence that had exculpatory value to
Jerome Moses Thornton, the trial judge abused his discretion by
refusing to grant Thornton's motion for a continuance.
I.
In pertinent part, the grand jury indictment reads as
follows:
[T]he accused,
JEROME H. THORNTON
1. Malicious Wounding
On or about March 6, 1999, did unlawfully shoot, stab, cut, or wound, or cause bodily injury to [James] Cary with the intent to maim, disfigure, disable or kill.
A Class 3 felony, in violation of [Code] § 18.2-51.
The trial transcript and conviction order demonstrate that
the trial judge convicted Thornton of the offense of unlawful
wounding, a Class 6 felony. I agree with the majority that the
trial judge's sentencing order erroneously states that the trial
judge convicted Thornton of "malicious wounding." Thus, the
sentencing order contradicts the conviction order and,
furthermore, it erroneously references Code § 18.2-250, which
relates to controlled substances. Unlike the majority, however,
- 11 - I do not believe that these discrepancies are mere clerical
errors because the record does not establish that they are such.
Because these mistakes may well have influenced the sentence
itself, I believe that at a minimum we should vacate the
sentencing order and remand the matter for resentencing.
II.
I believe, however, that the record requires us to reverse
the conviction and remand for a new trial. At trial, the
complaining witness, James Cary, testified that Thornton struck
him without provocation, cutting and scarring the left side of
his face. Cary denied attacking Thornton with a knife during
the incident and denied having a knife during the fray. He
testified that "when [he] went to bed the next day, [he] got up,
felt in [his] pocket for [his] pocket knife, it was not there.
[He] didn't have no weapon on [him] at that time."
Officer Milteer, who investigated the incident with Officer
Jones, testified that Officer Jones recovered a meat cleaver
from Thornton's room. Officer Milteer testified that another
knife was seized during the investigation but he did not seize
it. He said Officer Jones "recovered the evidence." The
prosecutor did not call Officer Jones as a witness and stated
that Thornton's counsel had "stipulated to . . . the chain of
evidence."
- 12 - Thornton's counsel moved for a mistrial because the
prosecutor had affirmatively stated during discovery that "[n]o
exculpatory evidence in this case is known to the Commonwealth"
and had failed to disclose the second knife. Opposing the
motion, the prosecutor informed the judge he was unaware the
knife was in the evidence bag. The record contains a discovery
order requiring the prosecutor to provide to the defense "[a]ll
evidence or information in the possession or control of the
Commonwealth which tends to exculpate the defendant." In
addition, Thornton's counsel informed the judge she had not
inspected the objects in the prosecutor's possession even though
the discovery order permitted her to do so. Without stating a
reason, the trial judge denied Thornton's motion for mistrial.
Thornton's counsel then sought a "continuance, so that [she] at
least can have an opportunity to get Officer Jones here, so that
[she] can question him about this knife." The trial judge
summarily denied that motion. I would hold that the trial judge
abused his discretion in denying Thornton a continuance.
III.
evidence is material . . . to guilt . . . , irrespective of the
good faith or bad faith of the prosecution." Brady v. Maryland,
373 U.S. 83, 87 (1963). Under Brady, "the individual prosecutor
- 13 - has a duty to learn of any favorable evidence known to the
others acting on the government's behalf in the case, including
the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). The
existence of two knives in the evidence bag was more than
sufficient to alert the prosecutor in this case to the
reasonable probability that both men were armed and to make
inquiry of the officers concerning the source of the second
knife.
[T]he Commonwealth is not relieved of the discovery responsibilities because it fails to make reasonable inquiry of the police concerning the evidence it will use to prove the case. The Commonwealth is charged with the responsibility to interview all government personnel involved in a case in order to comply with its discovery obligations.
Harrison v. Commonwealth, 12 Va. App. 581, 585, 405 S.E.2d 854,
857 (1991). The existence of the two knives and the
prosecutor's interview of her witnesses would have reasonably
informed the prosecutor that evidence favorable to Thornton was
in her possession.
As the majority opinion notes, Thornton's trial counsel is
not blameless in the matter. The discovery order required the
prosecutor to "[p]ermit the defendant to inspect . . . tangible
objects . . . in the possession, custody, or control of the
Commonwealth." Thornton's counsel failed to request an
opportunity to view the evidence file. Despite that lapse,
- 14 - however, the prosecutor's affirmative statement in writing prior
to entry of the discovery order that "[n]o exculpatory evidence
in this case is known to the Commonwealth" establishes a Brady
violation.
Faced with these circumstances and the disclosure of this
evidence during the trial, the trial judge abused his discretion
in failing to grant Thornton's request for a continuance. In so
doing, he adversely affected Thornton's opportunity to use this
evidence in his defense at trial.
[A]lthough granting or denying a continuance is within the discretion of the trial court, it must exercise its discretion "with due regard to the provisions of the Bill of Rights, which secure to one accused of crime a fair and impartial trial; and to that end safe-guard his right 'to call for evidence in his favor.'" When a court has no reason to believe that a motion for a continuance is spurious, it should seriously consider whether a failure to grant the continuance may "imperil the just determination of the cause." . . . "An ideal system of laws would be one in which speedy justice is administered, but justice and not speed should be its paramount purpose."
Gilchrist v. Commonwealth, 227 Va. 540, 546, 317 S.E.2d 784, 787
(1984) (citations omitted). "The very integrity of the judicial
system and public confidence in the system depend on full
disclosure of all the facts, within the framework of the rules
of evidence." United States v. Nixon, 418 U.S. 683, 709 (1974).
When the evidence proves, as here, that "[t]he right to explore
- 15 - and develop this evidence was critical to the defendant's case,"
the failure to grant his motion for a continuance is an abuse of
discretion. Lomax v. Commonwealth, 228 Va. 168, 173, 319 S.E.2d
763, 766 (1984).
The record established that the late disclosure of evidence
regarding the existence of the second knife and its seizure by
police from Cary prejudiced Thornton in the preparation of his
defense. In the absence of Officer Jones' testimony concerning
the origin of the knife, the trial judge apparently disbelieved
the defense witness' testimony. A defense witness, who lived in
the boarding house with the two men, testified that Thornton and
Cary "had words" and that Cary then swung at Thornton. During
the ensuing tussle, Cary "took out a knife." The witness
testified that later, when the police arrived, he told them Cary
had a knife. He testified that a police officer removed the
knife from Cary's pocket. The witness identified the knife
Officer Milteer displayed as Cary's knife.
Thornton testified that Cary swung at him after Cary
mistakenly believed Thornton had commented on Cary's body odor.
Thornton testified that after they tussled he got away from Cary
and went outside. When he returned, Cary came toward him with a
knife to stab him. He testified that he cut Cary with a cleaver
while he was defending himself.
- 16 - After both parties presented their evidence, the trial
judge recalled Cary to the courtroom and asked if the knife was
his. Cary said it was. The trial judge expressly ruled,
however, that Cary's identification of the knife as his own was
"not evidence." The judge then convicted Thornton of unlawful
wounding.
Although Cary denied that he had a weapon during the fray,
Officer Milteer's testimony established that Officer Jones
seized this knife during their investigation immediately after
the altercation. Apparently, appellant did not know Officer
Jones seized the knife and agreed to stipulate to the chain of
custody of the Commonwealth's evidence. If Officer Jones had
been present at trial, he could have confirmed that he seized
the second knife from Cary in response to the witness'
contemporaneous report that Cary brandished the knife at
Thornton during their altercation. Such testimony from a
witness with no known motive to fabricate would have
strengthened Thornton's claim of self-defense significantly and
would have given Thornton a much stronger base from which to
cross-examine Cary about his claim that he did not have the
knife in his possession and did nothing to provoke the fight
with Thornton. Officer Jones' absence from the trial, a direct
result of the prosecutor's failure timely to disclose its
- 17 - possession of exculpatory evidence, clearly prejudiced Thornton)
in the presentation of his defense.
The trial judge could have cured this prejudice effectively
by granting Thornton's continuance request. This was not a case
in which Thornton's testimony or trial strategy was at odds with
the undisclosed exculpatory evidence. Moreover, nothing in the
record indicates that Thornton would have presented a different
theory of the case had he received advance notice of the
prosecutor's possession of Cary's knife. Compare Conway v.
Commonwealth, 12 Va. App. 711, 716, 407 S.E.2d 310, 312-13
(1991) (en banc) (holding that late disclosure of taped
statement of accused in response to discovery order prejudiced
accused's defense and required mistrial because it was not
revealed to him until after he had testified at odds with
statement and it was used to impeach him), with Knight v.
Commonwealth, 18 Va. App. 207, 214-15, 443 S.E.2d 165, 169-70
(1994) (holding that late disclosure of accused's statement to
police did not require mistrial because it was not at odds with
his testimony and theory of the case). The prejudice caused by
this late discovery could have been cured by granting Thornton's
request for a continuance to allow him to present testimony from
Officer Jones. If necessary, Thornton's counsel could then also
have recalled Cary or Thornton for further examination prompted
by Officer Jones' testimony.
- 18 - At the conclusion of the evidence the trial judge ruled
"the Court is of the opinion that malicious wounding should be
reduced to unlawful wounding; therefore, the Court finds you
guilty of unlawful wounding." The trial judge's statement that
Thornton was guilty of "unlawful wounding" may well have been
predicated in part upon his doubt whether Cary was completely
truthful when he testified that he "didn't have [a] weapon on
[him] at that time." Thus, the failure to allow Thornton a
continuance to obtain the testimony of Officer Jones deprived
him of evidence that tended directly to establish his
self-defense.
For these reasons, I would hold that the trial judge abused
his discretion in denying Thornton's motion for a continuance to
obtain the material testimony of Officer Jones. I dissent.
- 19 -