Conway v. Com.

• Decision Date: 01 July 1991
• Docket Number: No. 0482-88-2,0482-88-2
• Citation: 407 S.E.2d 310,12 Va.App. 711
• Parties: Daniel Clayton CONWAY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 310

407 S.E.2d 310

12 Va.App. 711

Daniel Clayton CONWAY v. COMMONWEALTH of Virginia.

Record No. 0482-88-2.

Court of Appeals of Virginia.

July 1, 1991.

[12 Va.App. 712] Daniel L. Metzger (David J. Johnson, Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on briefs), for appellee.

Present: KOONTZ, C.J., and BARROW, BENTON, COLEMAN, DUFF, KEENAN, MOON, COLE ^* and WILLIS, JJ.

ON REHEARING EN BANC

KEENAN, Judge.

Daniel Conway was convicted in a jury trial of second degree murder. He argues: (1) that the trial court erred in admitting into evidence a recorded statement he made which was not provided to him prior to its admission at trial; (2) that the seizure of a shirt and pants from his bedroom violated his fourth amendment rights; and (3) that the trial court erred in failing to inquire into the mental state of a juror after being notified of a problem by the jury foreman. ¹ We hold that the Commonwealth's failure to disclose the recording of Conway's statement was error and therefore reverse his conviction. We hold that Conway's shirt and pants were in plain view when Detective Harding obtained them, and, thus, that their seizure did not violate Conway's fourth amendment rights. Since we reverse Conway's conviction, we do not reach the issue of the juror's mental state.

On November 9, 1987, Keith Madison found his girlfriend, Tina Harper, dead in her room at the Chamberlayne Motel. Harper had red marks around her neck and the police considered her death to be suspicious. Madison told Detective Harding that at the time he discovered Tina's body he saw a man leaving the motel in a red car. The man was wearing a red shirt with a confederate flag on it and a pair of blue pants. Detective Harding determined that the person in the car was the last person to have been with the victim before she died. The car was registered to the defendant, Daniel Conway.

Approximately five hours later, Detective Harding and two other officers went to Conway's home and spoke first to his father. Upon learning that Conway was in the home, they entered the living room when Conway's father opened the door. Conway's mother called Conway into the living room. In front of Conway's parents, Detective Harding asked Conway whether he had been at the Chamberlayne Motel that day. Conway responded that he had not. Without Conway's knowledge, Detective Harding recorded the entire conversation.

Harding later testified that he did not believe that Conway was telling the truth when he denied having been at the motel. Detective Harding also testified that he believed he had probable cause to arrest Conway, although he did not do so at that time. Instead, Harding asked Conway to accompany him to the police station for an interview relating to the death of Tina Harper.

Conway left the living room and walked down a hall toward the back of the home. Detective Harding followed him. After using the bathroom, Conway asked Harding if he could change his clothes. Harding told him that he could get a coat. Conway walked to his bedroom, again followed by Harding. When Conway opened the door to the bedroom, Harding saw a red shirt lying beside the door. Harding picked up the shirt and saw that it had a confederate flag on the back. Harding also observed a pair of blue pants lying on the floor under the shirt. Harding seized the shirt and pants.

Conway was advised of his Miranda rights in the police car on the way to the station. Conway later admitted to Detective Harding that he had been at the motel earlier that day. He was placed under arrest at that time.

At Conway's trial, the Commonwealth introduced the red shirt and the pants into evidence. In addition, on rebuttal, the Commonwealth introduced the tape recording of Conway's conversation with Harding in the home. Although there was a written discovery order entered in this case, the recording was not provided to Conway prior to its use at trial.

The Commonwealth argues that Conway was aware of the substance of the statement and that the recording of Conway's statement was provided to him as soon as the Commonwealth learned of its existence. Thus, the Commonwealth argues that it should not be penalized for its failure to make the tape available earlier. We disagree.

In the case before us, the trial court entered a written discovery order specifically requiring the Commonwealth to provide without restriction all written or recorded statements made by Conway. ² The police possessed the tape recording of Conway's statement and the prosecutor could have discovered its existence through the exercise of due diligence. The Commonwealth did not seek a protective order, as authorized by Rule 3A:11(f). Thus, the Commonwealth's introduction of the tape into evidence without first making it available to Conway violated the discovery order entered in this case.

Furthermore, Rule 3A:11(b)(1) provides in pertinent part:

Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph any relevant (i) written or recorded statements or confessions made by the accused, or copies thereof, or the substance of any oral statements or confessions made by the accused to any law enforcement officer, the existence of which is known to the attorney for the Commonwealth.

Unlike the discovery order entered in this case, Rule 3A:11 treats written and oral statements equally. We nevertheless find that the Commonwealth's failure to disclose the tape recording also violated Rule 3A:11.

Rule 3A:11 requires the Commonwealth to allow an accused to inspect and copy or photograph any written or recorded statements, the existence of which is known to the attorney for the Commonwealth. In Fitzgerald v. Bass, 4 Va.App. 371, 358 S.E.2d 576 (1987), we held that constructive knowledge is attributed to the prosecutor where information is in the possession of the police, so long as the officer is not a law enforcement official of a different jurisdiction. Id. at 382-83, 358 S.E.2d at 576. Here, one of the investigating officers of the Richmond Bureau of Police had possession of the tape. Therefore, constructive knowledge of the existence of the tape is attributable to the attorney for the Commonwealth and disclosure was required under Rule 3A:11.

Admission of relevant and material evidence at trial which was not previously disclosed as required by a discovery order, however, is not reversible error absent a showing of prejudice. Davis v. Commonwealth, 230 Va. 201, 204, 335 S.E.2d 375, 377-78 (1985); Stotler v. Commonwealth Va.App. 481, 484, 346 S.E.2d 39, 40 (1986). In this case, we find that the Commonwealth's failure to produce the tape did prejudice Conway's case. Conway had no opportunity to review the recording and refresh his own recollection of the conversation with Detective Harding prior to testifying at trial. He was impeached by the recording after his testimony was before the jury. While the credibility of both Conway and Detective Harding were before the jury, only Harding had the opportunity to listen to a recording of the conversation prior to testifying about its content.

Prior to trial, the Commonwealth informed Conway of the substance of his statement and Detective Harding's proposed testimony regarding that conversation. However, Conway was not told until after he testified that a recording existed which directly supported Harding's recollection of the conversation and contradicted his own. Therefore, we find that the Commonwealth's failure to disclose the existence of the tape prior to Conway's testimony prejudiced Conway's defense.

Furthermore, we find that the prejudice suffered by Conway was not so slight as to make admission of the tape recording harmless error. The evidence presented at trial was circumstantial and the Commonwealth's case rested to a large extent on the credibility of witnesses. Use of the tape recording during rebuttal without prior disclosure undercut Conway's credibility without the opportunity for explanation or rehabilitation. In closing argument, the Commonwealth repeatedly emphasized that the recording showed that Conway's entire testimony was untruthful and the correct version of events was that presented by the Commonwealth's witnesses. On this record, we cannot say that Conway had a fair trial on the merits of the case. Consequently, the admission of the tape recording was not harmless error and the conviction must be reversed. Code § 8.01-678.

Judge Coleman's dissenting panel opinion argues that the trial court did not err by allowing the Commonwealth to use the tape at trial since it was used only in rebuttal and for impeachment purposes. While we recognize that the United States Supreme Court has sanctioned the impeachment use of evidence obtained in violation of an accused's fourth and fifth amendment rights, see, e.g., Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980); Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); and other courts have sanctioned the impeachment use of evidence obtained in violation of a defendant's sixth amendment rights, see, e.g., Martinez v. United States, 566 A.2d 1049 (D.C.App.1989), cert. denied, 498 U.S. 1030, 111 S.Ct. 685, 112 L.Ed.2d 677 (1991), we nevertheless find that the impeachment use of the tape constitutes reversible error.

This case is distinguished from the cases relied on by the dissent. In those cases, the court determined that the need to protect the truth-finding process outweighed any possible deterrent on police misconduct. In each of those cases, illegally obtained evidence was admitted for impeachment purposes, but was evidence the existence of which was known to the defendant. Here, however, the defendant learned of the tape recording only after he had...