Dozier v. Com.

• Decision Date: 20 April 1979
• Docket Number: No. 781132,781132
• Citation: 253 S.E.2d 655,219 Va. 1113
• Parties: Mark Anthony DOZIER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 655

253 S.E.2d 655

219 Va. 1113

Mark Anthony DOZIER v. COMMONWEALTH of Virginia.

Record No. 781132.

Supreme Court of Virginia.

April 20, 1979.

Thomas J. Harrigan, Arlington (Neil I. Title, Arlington, on brief), for appellant.

Vera S. Warthen, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.

POFF, Justice.

We granted this writ to consider whether the Commonwealth's failure to disclose certain evidence in its possession denied defendant Mark Anthony Dozier a fair trial.

Under two indictments tried jointly, one charging statutory rape and the other abduction of a female under the age of 16 for purposes of prostitution, defendant was convicted by a jury of both offenses. Cindy Floyd was the principal witness for the Commonwealth. According to her testimony at trial, she and a girl friend ran away from their homes in Virginia on January 17, 1977. Three days later in Washington, D. C., she met defendant who offered to take her to see a mutual acquaintance named Bunny. Instead, he drove her, she testified, to the Arna Valley Apartments in Arlington where he raped her and told her he wanted her to work for him as a prostitute. During the two days she stayed in the apartment, the doors were locked and she did not feel free to leave. In the five-day period before she was found by the police and returned to her father, defendant required her "to work on the streets" and she engaged in sexual relations for money with a number of men.

The jury returned the guilty verdicts December 9, 1977. On April 5, 1978, defendant filed a motion for new trials on both convictions. The motion was based upon the ground that defendant had been denied a fair trial because the Commonwealth had failed to disclose a hand-written statement Cindy had given the police when she was apprehended. The statement was an account of the events of the previous five days. Never identifying defendant by name, Cindy wrote that "some guy started talking to me and said he would take me where Bunny was but instead he took me to the apartments at Arnu (sic) Valley and wanted me to work on the streets, so he got me an I D card so if a police stops me I just show them it." She mentioned nothing in her statement about sexual relations with defendant at the Arna Valley Apartments and nothing about being held there against her will.

At a hearing on April 12, 1978, defendant argued that Cindy's extra-judicial statement tended to contradict her testimony at trial and that the Commonwealth had a duty to make it available to him for impeachment purposes. The trial court filed a memorandum opinion finding that defendant "learned of the existence" of the statement on March 22, 1978; that the Commonwealth had the statement in its possession prior to commencement of trial; and that defendant had never made any request "for the specific statement (such being unknown to the Defendant) or for any exculpatory material in the Commonwealth's file". Upon these findings, the trial court ruled that, with respect to the rape conviction, "the absence of any mention (in the statement) of sex with Defendant . . . creates a reasonable likelihood of affecting the trier of fact" and makes the statement "material in the constitutional sense and as such exculpatory and requires the granting of the Motion for a New Trial." The trial court concluded further, however, that the written account of the abduction for purposes of prostitution was "consistent with her version . . . at trial" and, holding that the statement was not constitutionally material to that charge, denied the motion for a new trial. By judgment entered May 5, 1978, defendant was sentenced to 20 years in the penitentiary, with five years suspended.

The standards and rules governing non-disclosure of exculpatory evidence in the hands of the prosecution differ in "three quite different situations." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). For the sake of convenience, we will refer to these three as the Mooney situation, Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); the Brady situation, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and the Agurs situation, Agurs.

The Mooney situation is one where the prosecution knowingly uses perjured testimony. The rule in such case is that "a conviction . . . must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury". Agurs, 427 U.S. at 103, 96 S.Ct. at 2397.

The Brady situation is one where the defendant has made an express request for specific evidence which is "material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1197. "(I)mplicit in the requirement of materiality (in the Brady situation) is a concern that the suppressed evidence might have affected the outcome of the trial." Agurs, 427 U.S. at 104, 96 S.Ct. at 2398.

In the Agurs situation, the defendant, having no knowledge that any favorable evidence exists, either makes no request at all or makes only a general request for whatever exculpatory evidence the prosecution might have. "(T)here are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request." Agurs, 427 U.S. at 110, 96 S.Ct. at 2401. In such situations, the prosecution's failure to Volunteer the evidence constitutes constitutional error "if the omitted evidence creates a reasonable doubt that did not otherwise exist". Id. at 112, 96 S.Ct. at 2402.

In summary, the Supreme Court has defined three situations requiring disclosure, each with its own standard of constitutional materiality. From a defendant's viewpoint, the lest onerous is the "might have affected" standard in the Brady situation, followed progressively by the "reasonable likelihood" standard in the Mooney situation and the "reasonable doubt" standard in the Agurs situation. ^*

From the findings upon which the trial judge based his ruling setting aside the rape conviction, it seems he considered the situation at bar an Agurs situation. Finding as a fact that the existence of the written statement was...