Larry Marvin Diggs v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 3, 1997
• Docket: 1894964
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Fitzpatrick, Overton and Senior Judge Duff Argued at Alexandria, Virginia

LARRY MARVIN DIGGS MEMORANDUM OPINION * BY v. Record No. 1894-96-4 JUDGE JOHANNA L. FITZPATRICK JUNE 3, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Thomas S. Kenny, Judge

Thomas F. Koerner, Jr., for appellant. Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

On April 2, 1996, Larry Marvin Diggs (appellant) was

convicted in a jury trial of two counts of distribution of

cocaine. On appeal, he argues that the trial court erred in

refusing to compel his brother, Stanley Diggs, to pull up his top

lip in order to show the jury his teeth. For the reasons that

follow, we affirm the judgment of the trial court.

I.

On April 25, 1995, Officer Richard Duranko, Jr. (Duranko)

was working undercover investigating drug transactions for the

Fairfax County Police Department. With the assistance of an

informant, a "buy" was arranged for approximately 9:00 p.m. at a

well-lit 7-Eleven store parking lot located on Richmond Highway

in Fairfax County.

At the appointed time, appellant and approximately five * Pursuant to Code § 17-116.010 this opinion is not designated for publication. other African-American males met Duranko and the informant in the

parking lot. Appellant got out of his vehicle and approached the

passenger side of Duranko's car where the informant was seated.

He "cussed [the informant] out" for bringing a "white man" to the

area to buy drugs. Appellant then called his brother, Stanley

Diggs (Stanley), over to the car. Stanley gave appellant the

amount of cocaine Duranko had requested previously, and appellant

passed the cocaine to the informant, who then gave it to Duranko.

Duranko paid $175 directly to appellant for the cocaine. The

time to conduct this transaction was approximately five minutes.

During his investigation, Duranko examined photographs of

both appellant and his brother, Stanley. Duranko obtained the

license tag number of the car used by appellant in the

transaction and identified appellant as the person from whom he

purchased the cocaine. He confirmed appellant's identity by

matching the registered owner of the car with appellant's

photograph and driver information. Another drug buy involving appellant was arranged for May 1,

1995. However, when Duranko arrived at the meeting place, he

suspected that appellant was going to rob him, so he left without

purchasing any cocaine. On May 2, 1995, at approximately 10:50

p.m., Duranko again met with appellant at a well-lit convenience

store parking lot also located on Richmond Highway, negotiated a

price of $180, and purchased crack cocaine directly from

appellant. The time to conduct this transaction was

- 2 - approximately three minutes.

The informant arranged for yet another exchange to occur on

May 9, 1995. Duranko met appellant at the same convenience store

at approximately 9:00 p.m. Appellant got into Duranko's vehicle

for the exchange, and, after negotiating, Duranko paid him $175

for the drugs. The time to conduct this transaction was

approximately five minutes.

On May 19, 1995, police executed a search warrant at

appellant's residence. Appellant and his brother Stanley both

lived at this address. When the search warrant was executed,

appellant fled upon seeing the police officers. He turned

himself in four days later. At trial, Duranko was the Commonwealth's sole witness, and

he testified that he had no doubt that appellant was the man who

sold him cocaine on all three occasions. However, on

cross-examination, Duranko admitted that, at appellant's

preliminary hearing, he mentioned having noticed the person who

sold him cocaine had a "gap tooth."

Appellant testified that he was present at the 7-Eleven

store on April 25, 1995, but denied selling the cocaine. He

stated that his cousin was the one who actually sold the drugs.

Additionally, he testified that on May 2 and May 9, he was at

home with his brother, Stanley Diggs. He admitted that he ran

out of the apartment building at the time the search warrant was

executed, but denied knowing that the men he ran from were police

- 3 - officers.

Appellant called Stanley to testify. However, Stanley

asserted his Fifth Amendment right against self-incrimination.

Because appellant had no "gap" in his teeth, he requested the

trial court to compel Stanley to show his teeth to the jury. The

court granted the request, and appellant instructed Stanley to

"smile" for the jury, and to "open your mouth a little bit

wider." Stanley complied. However, when appellant additionally

proposed that Stanley raise his upper lip to further exhibit his

teeth to the jury, the trial court refused, stating, "Then that's

as much as I'm going to require him to do. He's opened his

mouth. That's as much as I'm going to require." II.

Appellant argues that the trial court erred in limiting his

presentation of relevant evidence, because the "gap" evidence

tended to prove that someone other than appellant committed the

crimes. Thus, appellant contends that the court erred in

refusing to compel the witness to lift his lip to further show

his teeth to the jury. Appellant's argument is without merit.

An accused has the guaranteed right to present evidence

pursuant to the Virginia Constitution, Article I, Section 8 ("in

criminal prosecutions a man hath a right to . . . call for

evidence in his favor"). "The right of an accused 'to call for

evidence in his favor' includes the right to procure

demonstrative evidence." Gibbs v. Commonwealth, 16 Va. App. 697,

- 4 - 699, 432 S.E.2d 514, 515 (1993) (quoting Cox v. Commonwealth, 227

Va. 324, 328, 315 S.E.2d 228, 230 (1984)). However, the

admission of demonstrative evidence lies within the sound

discretion of the trial court, and will not be disturbed on

appeal absent a showing of abuse. Mackall v. Commonwealth, 236

Va. 240, 372 S.E.2d 759 (1988), cert. denied, 492 U.S. 925

(1989); Kehinde v. Commonwealth, 1 Va. App. 342, 338 S.E.2d 356

(1986). "An appellant must demonstrate that the excluded

evidence is relevant and material and that the party was entitled

to have it introduced in order to establish on appeal that the

trial court erred by excluding it." Toro v. City of Norfolk, 14

Va. App. 244, 254, 416 S.E.2d 29, 35 (1992). The evidence is

material only if there is a reasonable probability that the

result of the proceeding would have been different. See, e.g.,

Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164

(1986).

The evidence in dispute, Stanley's "gap tooth," was not

material, because there was no reasonable probability that it

would have affected the end result of the proceeding. The trial

court directed Stanley to "smile" for the jury and the record

reflects that he did. Stanley was asked to open his mouth

"wider" and he did. The court commented to counsel that the

witness had, in fact, "opened his mouth." The trial court did

not abuse its discretion by refusing to compel Stanley to further

demonstrate his teeth to the jury.

- 5 - Additionally, to require Stanley to contort his mouth would

have presented an unrealistic scenario of what Duranko would have

observed during the drug transactions. See, e.g., Duncan v.

Commonwealth, 2 Va. App. 717, 347 S.E.2d 539 (1986). Moreover,

at trial, Duranko did not describe Stanley as having a "gap

tooth," and no evidence suggested that appellant and Stanley look

alike. Duranko repeatedly testified that he had no doubt

"whatsoever" that he purchased cocaine from appellant. Appellant

himself testified that Stanley was "nowhere" near the drug

transaction on April 25 and that Stanley was home on May 2 and

May 9. For the foregoing reasons, we hold that the trial court did

not abuse its discretion in limiting appellant's demonstrative

evidence. Accordingly, the judgment of the trial court is

affirmed.

- 6 -