Lemons v. Com., 2488-92-3

• Decision Date: 05 July 1994
• Docket Number: No. 2488-92-3,2488-92-3
• Parties: Warren Edward LEMONS, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 158

446 S.E.2d 158

18 Va.App. 617

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

Record No. 2488-92-3.

Court of Appeals of Virginia.

July 5, 1994.

Wayne D. Inge, Roanoke, for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BARROW, COLEMAN and KOONTZ, JJ.

BARROW, Judge.

In this appeal, we examine the futile and costly result of a prosecutor's refusal to disclose an exculpatory statement to a criminal defendant. Being unable to conclude, to a reasonable degree of probability, that had the exculpatory statement "been disclosed to the defense, the result of the proceeding would have been different," we must affirm. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). This conclusion, however, follows five separate judicial reviews of the prosecutor's refusal to disclose the statement, a refusal which persisted even after the prosecutor implicitly recognized that the statement was exculpatory.

The defendant was convicted of murder and malicious wounding. A jury found that he shot and killed one victim and shot and wounded another. The defendant initially confessed to the shootings, but the next day, recanted, explaining that he had been "covering for" another person.

Before trial, the defendant sought to discover any exculpatory materials possessed by the prosecution. The prosecution initially responded that she was unaware of any; however, she later discovered and revealed that she had a statement of a witness who had said that someone other than the defendant had shot the victims.

The prosecution summarized the exculpatory portions of the witness's statement but refused to give the statement to defense counsel. The trial court did not require the prosecution to produce the statement, did not review the statement in camera, and did not make it a part of the record.

On appeal, a panel of this Court held that the statement was exculpatory. Lemons v. Commonwealth, 13 Va.App. 668, 673, 414 S.E.2d 842, 845 (1992). After a rehearing en banc, we vacated the convictions and remanded the case to the trial court. See Lemons v. Commonwealth, 14 Va.App. 1009, 1009, 420 S.E.2d 525, 526 (1992). We directed the trial court to require production of the statement and to review it in camera to determine if it was material. Id. The trial court inspected the statement and concluded that the statement was not material. This determination is now before us on appeal.

Before trial, although the prosecution did not disclose the witness's statement to the defendant, it did reveal that the eyewitness had told an officer that "two black males known as 'Munch' and 'Chipper'--not Warren Lemons--fired the shot that killed Bobby Watson and wounded David Farmer." When the witness testified at trial, he denied identifying the shooter by name, giving only a physical description. However, during cross-examination, the prosecution elicited from him that he remembered telling a policeman "[s]omething like" he "saw Chipper pull the trigger three times," and "then either Muncher or a third person ... grabbed the gun, shot a guy, he fell to the ground and finished unloading the shells in him."

The undisclosed statement recited essentially that which the prosecution elicited from the witness on cross-examination but in more detail. ¹ No new information concerning how the homicide occurred appeared in the witness's statement. Although in his pretrial statement, the witness identified someone other than the defendant as the assailant, he also explained that someone else had told him the assailant's name. At trial, he explained that he gave the statement while "confused, dazed, and very upset."

The defendant contends that, had this statement been given to his attorney before trial, it would have assisted in his trial preparation and would have assisted in developing his theory of the case. Primarily, he suggests that he would have used the statement to confront the witness before trial and attempt to determine why he was deviating from his statement.

We agree that disclosure of the statement before trial would have aided the defendant's attorney in his preparation. Furthermore, the absence of such aid lessens our confidence in the outcome of the case. However, the defendant must show more. The defendant must show that a reasonable probability exists that the statement's disclosure would have resulted in a different outcome. See Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; Bowman v. Commonwealth, 248 Va. 130, ----, 445 S.E.2d 110, ---- (1994). A review of all of the evidence presented at trial reveals that the defendant has not met his burden.

Several Commonwealth witnesses testified that the defendant was the shooter. The wounded victim testified that he saw the defendant shoot the decedent in the chest and then shoot the witness, himself, repeatedly as he lay on the ground. Another prosecution witness testified that he saw the defendant operate the slide on his semi-automatic pistol and fire the gun eight times at two white men twenty feet away.

A defense witness claimed to have seen the shooting and gave a physical description of the shooter, whom he did not recognize and whose face he did not see. He was acquainted with the defendant, "Munch" Dungee, and "Chipper" Gunn. He testified that Gunn had earlier threatened to kill a bouncer and had displayed a nine millimeter semi-automatic pistol. Another defense witness, who also knew the defendant, testified that he had seen the shooting, but could not identify the shooter. At trial, his physical description of the shooter was impeached by a police officer who testified that the witness had given a different description on the night of the shooting. In light of all of the evidence presented, we cannot find to a reasonable degree of probability that the disclosure of the verbatim statement would have produced a different outcome.

We can find no reason for the prosecution's refusal to disclose the statement to the defense. The statement does not contain any information regarding any other criminal prosecution, any private information concerning any person, or any reason to protect the identity of any person mentioned in it. The witness's identity was revealed to the defendant's attorney before trial.

We have previously emphasized the importance of the prosecutor's ethical duty to "make [a] timely disclosure" of exculpatory material. Humes v. Commonwealth, 12 Va.App. 1140, 1144 n. 2, 408 S.E.2d 553, 555 n. 2 (1991) (citing DR 8-102(A)(4)); Stotler v. Commonwealth, 2 Va.App. 481, 484, 346 S.E.2d 39, 41 (1986). The failure to carry out this duty reduces "the fact finding process ... to an exercise in brinksmanship." Stotler, 2 Va.App. at 484, 346 S.E.2d at 41. The duty springs from a public prosecutor's broader obligation to "seek justice, not merely convict." Virginia Code of Professional Responsibility, EC 8-10.

A prosecutor does not meet his or her ethical and constitutional duty simply by making a pretrial determination that the information, if disclosed, would not likely change the outcome of the trial. Humes, 12 Va.App. at 1144 n. 2, 408 S.E.2d at 555 n. 2. A prosecutor is unable to determine the ultimate "materiality" of evidence in a trial which has not yet occurred. See id. (noting that it would be unacceptable if the prosecutor's duty to disclose lessened as his case grew stronger). If in doubt about the exculpatory nature of the material, a prosecutor should submit it to the trial court for an in camera review to determine if it is exculpatory and should be disclosed. See Lemons v. Commonwealth, 13 Va.App. 668, 671, 414 S.E.2d 842, 844 (1992).

If a prosecutor violates a discovery order, a trial court has the authority to levy sanctions. Conway v. Commonwealth, 11 Va.App. 103, 113, 397 S.E.2d 263, 269-70 (1990); Stotler, 2 Va.App. at 484, 346 S.E.2d at 41. As suggested by our previous opinions, a trial court should consider imposing significant sanctions, which deter unreasonable refusal to comply with...