Lemons v. Com.

• Decision Date: 11 August 1992
• Docket Number: No. 0327-90-3,0327-90-3
• Citation: 420 S.E.2d 525,14 Va.App. 1009
• Parties: Warren Edward LEMONS, Jr., Appellant, v. COMMONWEALTH of Virginia, Appellee. Record
• Court: Virginia Court of Appeals

Page 525

420 S.E.2d 525

14 Va.App. 1009

Warren Edward LEMONS, Jr., Appellant, v. COMMONWEALTH of Virginia, Appellee.

Record No. 0327-90-3.

Court of Appeals of Virginia.

Aug. 11, 1992.

John Gregory, Jr., for appellant.

John H. McLees, Jr., Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Before KOONTZ, C.J., and BAKER, BARROW, BENTON, COLEMAN, DUFF, MOON, WILLIS, ELDER and BRAY, JJ.

UPON REHEARING EN BANC

On February 25, 1992, a panel of this Court affirmed the conviction of Warren Edward Lemons, Jr. See 13 Va.App. 668, 414 S.E.2d 842 (1992). A dissenting opinion was filed in the panel decision. Lemons' petition for rehearing en banc was granted and was argued on June 17, 1992.

We hold that the issues presented in this case are controlled by our opinion in White v. Commonwealth, 12 Va.App. 99, 402 S.E.2d 692, aff'd en banc, 13 Va.App. 284, 410 S.E.2d 412 (1991). Accordingly, we vacate the convictions and remand the case to the trial court for it to order the production of the verbatim statement of Randall Murray for an in-camera inspection and inclusion in the record. The trial court shall determine the statement's "materiality" as that term is defined in United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). If it is found to be "material," in that there is a reasonable probability that its full disclosure would have resulted in a different outcome, Lemons should be granted a new trial. If not, the trial court shall reinstate the convictions.

In accordance with these directives, the opinion previously rendered by a panel of this Court on February 25, 1992 is withdrawn and the mandate entered on that date is vacated.

The trial court shall allow court-appointed counsel a total fee of $600 for services rendered the appellant, in addition to counsel's costs and necessary direct out-of-pocket expenses.

BENTON, Judge, concurring in part and dissenting in part.

For the reasons stated in the dissenting opinions in Lemons v. Commonwealth, 13 Va.App. 668, 674-76, 414 S.E.2d 842, 846-47 (1992) (Duff, J., dissenting) and Clodfelter v. Commonwealth, Record No. 1831-89-2 (Unpublished, April 18, 1992) (en banc) (Benton, J., dissenting), I would vacate the conviction and grant a new trial. ¹ The record clearly establishes that the evidence the Commonwealth withheld was exculpatory.

It bears repeating that this Court has an obligation to thwart efforts to trivialize the clear mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

MOON, Judge, with whom COLEMAN, Judge, joins, dissenting.

I respectfully dissent from the majority's action in this case because, notwithstanding the decision in White v. Commonwealth, 12 Va.App. 99, 402 S.E.2d 692 (1991), for the reasons stated in the majority panel decision, Lemons v. Commonwealth, 13 Va.App. 668, 414 S.E.2d 842 (1992), I do not believe the facts of this case warrant remand.

I would affirm.

This order shall be published and certified to the trial court.

1 Following this Court's decision in White v. Commonwealth, 12 Va.App. 99, 402 S.E.2d 692, aff'd en banc 13 Va.App. 284, 410 S.E.2d 412 (1991), we convened en banc in Clodfelter to consider again the Commonwealth's refusal to disclose exculpatory material to a defendant. The Court issued an unpublished order which did not address the repetitive nature of the problem. At that time I wrote the following dissenting opinion:

Donald M. Clodfelter was denied a fair trial when the Commonwealth failed to disclose, in response to a specific request, material that would have allowed impeachment of the Commonwealth's major witness. The Commonwealth is obliged to disclose to a defendant all evidence in its possession that is favorable to the defendant and material to guilt or punishment. United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). The duty of disclosure includes information that has impeachment value. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Robinson v. Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986). Because the Commonwealth erred in failing to disclose the impeachment evidence, I would reverse the conviction, and remand for a new trial.

At trial, the Commonwealth relied primarily upon the testimony of Terri Spence, a convicted felon and informer, to implicate Clodfelter in the distribution of a controlled substance. Spence testified, however, that she was unable to specify the type and number of all the offenses for which she had been granted immunity through her cooperation with the prosecution. A police officer who had interviewed Spence prior to trial testified that he had written notes reflecting all of the crimes to which Spence had confessed and to which Spence was granted immunity. Despite a pretrial discovery request for exculpatory information, the prosecution failed to deliver the information to Clodfelter. Moreover, at trial, when the officer disclosed the existence of the notes, the trial judge, without explanation, denied Clodfelter's request for those notes.

Where "[t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence," evidence relevant to truthfulness, reliability, and credibility is as constitutionally material as evidence which goes directly to the question of guilt. Fitzgerald v. Bass, 4 Va.App. 371, 385, 358 S.E.2d 576, 584 (1987) (quoting Dozier v. Commonwealth, 219 Va. 1113, 1118, 253 S.E.2d 655, 658 (1979), aff'd en banc, 6 Va.App. 38, 366 S.E.2d 615 (1988), cert. denied sub nom. Fitzgerald v. Thompson, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989)). "[I]t is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). The information the Commonwealth failed to disclose was exculpatory and should have been disclosed. See Robinson, 231 Va. at 150, 341 S.E.2d at 164.

Moreover, where, as here, an accused has made an express request for specific exculpatory evidence, there can "seldom, if ever" be an excuse for not complying with the request. Agurs, 427 U.S. at 106, 96 S.Ct. at 2398. The conviction must be reversed by this Court if the undisclosed impeachment evidence "undermines confidence in the outcome" of the trial. Robinson, 231 Va. at 151, 341 S.E.2d at 164 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381).

The majority correctly asserts that Bagley requires reversal only if "a reasonable probability" exists that the results of the trial would have been different if the evidence had been included, but it errs in remanding this case to allow the trial judge to determine the materiality of the evidence. See People v. Morris, 46 Cal.3d 1, 30 n. 14, 249 Cal.Rptr. 119, 137 n. 14, 756 P.2d 843, 861 n. 14 (1988). When the informant testified that she did not know the extent of her confessed crimes and was unable to relate the crimes for which she has been granted immunity, Clodfelter was denied a meaningful opportunity to cross-examine and impeach the informant. A fair trial is not a mere abstraction satisfied by a trial ritual. Under the circumstances of this case, it is clear that "the [undisclosed] evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

Further, by failing to submit the officer's notes for inclusion in the...