Payne v. Com., 781578

• Decision Date: 21 November 1979
• Docket Number: No. 781578,781578
• Parties: Marcus Albert PAYNE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 247

260 S.E.2d 247

220 Va. 601

Marcus Albert PAYNE v. COMMONWEALTH of Virginia.

Record No. 781578.

Supreme Court of Virginia.

Nov. 21, 1979.

Harry Toussaint Alexander, Washington, D.C. (Robert M. Alexander, Arlington, on brief), for appellant.

Alan Katz, Asst. Atty. Gen., Richmond (Marshall Coleman, Atty. Gen., Richmond, on brief), for appellee.

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

COMPTON, Justice.

In this criminal appeal, we shall determine whether defendant was deprived of a fair trial as the result of the prosecution's alleged failure to disclose information claimed to be exculpatory.

This appeal arises from the same series of events which generated our recent decision in Dozier v. Commonwealth, 219 Va. ---, 253 S.E.2d 655 (1979). In fact, the handwritten statement which was the subject of Dozier is involved here.

In a lengthy jury trial held in November of 1977, defendant Marcus Albert Payne was found guilty of rape, sodomy and abduction of a female under sixteen years of age for the purposes of prostitution. The jury fixed the punishment at confinement in the penitentiary for a total of 39 years.

In March of 1978, defendant filed several post-trial motions asserting that new evidence had been discovered which required either that new trials be granted or that the indictments be dismissed. He alleged discovery of the fact that the prosecution had concealed exculpatory evidence from the defendant and referred to: (1) a report written by the victim for the police shortly after the offenses had been committed, and (2) a photograph, part of a display shown to the victim by the police, from which it appears the victim may have identified a person other than defendant as being the perpetrator of the crimes. Following an evidentiary hearing in May of 1978, the court below overruled the motions and confirmed the jury's verdicts in orders entered in July of 1978. We granted this appeal from the judgments of conviction and limited it to consideration of the question whether "the Commonwealth withheld exculpatory evidence."

On Monday, January 17, 1977, the victim, Cindy Floyd, 13 years of age and a resident of Northern Virginia, left school intending to run away from home. She was accompanied by another 13-year-old, Angel Finchum. They rode a bus to the District of Columbia where they remained the rest of that day and all of the next. During that time they met "Bunny," another juvenile. In the early morning hours of Wednesday, January 19, Cindy and Angel were in Eddie Leonard's, a fast food restaurant in the District. While there, defendant and one Leon Robinson entered the establishment and approached them. Defendant initiated a conversation with Cindy and asked her to go to Las Vegas with him. Cindy declined, indicating she wished to return home. During the conversation, Payne grabbed Cindy's arm and later forcibly removed her from the restaurant, assisted by Robinson. In the meantime, Angel had gone to telephone her aunt to ask her to come and pick up the girls.

Defendant and Robinson placed Cindy in an automobile and drove her to the South Gate Motel in Arlington. Defendant registered at the motel and the two men took the victim to the room assigned by the night clerk. After the trio entered the room, Robinson departed to return to Washington to get Angel. Then defendant drew a gun from his pocket, displayed it to Cindy, and placed it under a pillow of one of the beds. He started talking about prostitution and asked Cindy if she would "work for him." Cindy testified she consented to becoming a prostitute in the employ of defendant because, she said, "he was bigger than me and he was black and he had a gun." Shortly thereafter, Robinson returned without Angel. Then the victim was raped and sodomized by defendant.

Later that morning, Cindy was taken by defendant and Robinson to the Arna Valley Apartments in Arlington. Tracy Scott, a prostitute, was present in the apartment. Defendant then gave Cindy detailed instructions about being a prostitute and how much to charge. As a result, Cindy was taken to a number of places by Scott and by "Peaches," a friend of Scott, so that Cindy could carry out defendant's instructions. Later, Scott returned Cindy to defendant after Cindy refused to solicit for prostitution. Upon learning of her refusal, defendant slapped Cindy, then drove her into Washington and released her near a McDonald's restaurant.

Cindy entered the restaurant to use a telephone so she could try to locate Angel and Bunny. While there, Cindy was introduced to "Tony," the defendant in Dozier, supra. Dozier promised to help Cindy locate her friends but, instead, took her back to the Arna Valley Apartments. Eventually, on Friday, January 21, Cindy was able to get away from Dozier in Washington where she was picked up by the D.C. police as a "runaway."

Cindy was then taken to a Washington police facility. After her father arrived and upon request of the police, she prepared the following handwritten report, quoted below complete with errors in spelling, punctuation and syntax:

got in D.C. at ____.

rode Metrobus from Mt. Vernon into D.C. went to a restuarant to get something to drink. went walking around. met a girl named bunny smith. went to McDonalds got something to eat. went walking around bunny got a hotel room We stayed there Monday Night. Then went to McDonalds to eat Breakfast. bunny was sick so we stayed in McDonalds for about 5 hours 7-1:00. Bunny was trying to get some money to get the bus so me and angel could go home. Bunny's Boy friend offered us a ride home. a friend of his told us to run when we get outside Because he wasn't going to take us home. So when we got outside me angel and Bunny ran. we went to Eddie leanord's restuarant. Somebody said our parents were coming to pick us up. then some guy by the name of Markus was talking to me and made me get in the car and drove to the wagon wheel motel and made me have sex with him. He pulled out a gun and put it under his pillow. The next morning he took me to some apartment named arnu valley in arlington. and wanted me to make some money for him but I wouldn't do it. So he hit me with his hand twice and dropped me off at McDonalds. then I went to find Bunny. to see where angel was But I didn't see bunny. I heard the police picked her up. and 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 valley and wanted me to work on the streets. So he got me an id card. So if a police stops me I Just show them it. so friday night I went to find Bunny. So I could go home, but I didn't find her. the police picked me up and took me to the police station.

Cindy Floyd

Subsequently on March 10, 1977, during the investigation being conducted by the Arlington police, Detective Kenneth John Madden was present when a series of photographs was exhibited to Cindy in an effort to identify "Marcus." During that interview which was recorded on tape, Cindy was shown pictures of eight individuals, none of which was of defendant Marcus Payne. Holding one of the photos, Madden asked, "Is that the one that is Marcus?" Cindy responded, "That looks like him, but I am not sure." Madden thereupon wrote with red ink on the reverse side of the picture, "This is marcus," signed his name and had Cindy write her initials there.

During the proceedings prior to trial, the court below ordered the prosecution to furnish defendant, "to the extent required by the Brady case," with the material requested in the following portion of a motion for discovery filed by defendant:

All information of whatever form or nature and from any source whatsoever that tends to exculpate the defendant either through an indication of his innocence or through the potential impeachment of...