Roberts v. Commonwealth2/6/2001
Argued at Alexandria, Virginia
FROM THE CIRCUIT COURT OF FREDERICK COUNTY James L. Berry, Judge
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.
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 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
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