Smoot v. Com.

• Citation: 37 Va. App. 495,559 S.E.2d 409
• Decision Date: 12 February 2002
• Docket Number: Record No. 2390-00-4.
• Court: Court of Appeals of Virginia
• Parties: Richard Anthony SMOOT v. COMMONWEALTH of Virginia.

559 S.E.2d 409

37 Va. App. 495

Richard Anthony SMOOT v. COMMONWEALTH of Virginia.

Record No. 2390-00-4.

Court of Appeals of Virginia, Alexandria.

February 12, 2002.

Rex L. Edwards, Jr. (Davies, Barrell, Will, Lewellyn & Edwards, P.C., on brief), Culpeper, for appellant.

Jennifer R. Franklin, Assistant Attorney General (Mark L. Earley, Attorney General; Shelly R. James, Assistant Attorney General, on brief), for appellee.

Present: BENTON and ANNUNZIATA, JJ., and COLEMAN, Senior Judge.

ANNUNZIATA, Judge.

Richard Anthony Smoot appeals his conviction for possession of marijuana while a prisoner, in violation of Code § 53.1-203. Smoot alleges: (1) the Commonwealth violated the provisions of the agreed order of discovery and inspection by not timely disclosing letters written by Smoot; and (2) because of this untimely disclosure, the trial court erred in overruling Smoot's motion to dismiss or continue. For the following reasons, we affirm.

BACKGROUND

Prior to Smoot's trial for possession of marijuana by a prisoner, the trial court entered an agreed order for discovery and inspection requiring the Commonwealth to disclose certain information to the defendant no later than July 14, 2000. The prosecutor delivered several documents pursuant to the order and informed Smoot's attorney that his file could be inspected under his "open file policy."

On September 1, 2000, the Friday before trial, the prosecutor discovered Sergeant Nelson possessed two inculpatory letters written by Smoot to fellow inmates. That same day, the Commonwealth sent defense counsel a supplemental discovery response with copies of the two letters and another report attached.

The trial court heard argument on September 5, 2000, the day before the trial, concerning the "late disclosure" of the letters. Defense counsel argued the letters were covered by the discovery order and, as they were not disclosed promptly, the case should be continued or dismissed. The trial court held that the letters were not covered by the discovery order and denied the continuance.

At trial, the Commonwealth attempted to introduce the two letters during redirect examination of Sergeant Nelson. The trial court again ruled that disclosure of the letters was not encompassed by the discovery order, but refused to admit the letters on the ground that they went beyond the scope of cross-examination. No further mention of the letters or their contents was made. Smoot did not present any evidence in defense.

The jury found Smoot guilty of possession of marijuana by a prisoner, in violation of Code 53.1-203. In accordance with the jury's verdict, the court sentenced Smoot to serve four months in jail.

Smoot appeals on the ground that the Commonwealth violated the discovery order by not timely producing the letters to defense counsel and that the trial court erred in refusing to grant the continuance.

ANALYSIS

Rule 3A:11 governing discovery in criminal cases provides that, upon timely written motion, the accused is entitled to discover any relevant:

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. . . .

(Emphasis added). However, where a discovery order has been entered in a criminal case, it governs discovery in that case. Abunaaj v. Commonwealth, 28 Va.App. 47, 53, 502 S.E.2d 135, 138 (1998). The discovery order entered in this case required the Commonwealth to permit defense counsel to inspect and copy or photograph any:

written or recorded statement or confessions, or copies thereof, or the substance of any oral statements or confessions made by the Defendant to any law enforcement officer. . . .

In short, the order omitted the language from Rule 3A:11 underscored in the above quotation.

The trial court held that the letter was not within the discovery order because it was not written "to any law enforcement officer." Smoot contends that this construction of the discovery order was error and that the Commonwealth was required to turn over to defense counsel inculpatory letters Smoot wrote to a fellow inmate. We agree.

"[W]hen construing a lower court's order, a reviewing court should give deference to the interpretation adopted by the lower court." Fredericksburg Construction v. J.W. Wyne Excavating, 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000) (citing Rusty's Welding Service v. Gibson, 29 Va.App. 119, 129, 510 S.E.2d 255, 260 (1999)). Although trial courts have discretion to interpret their own orders, that discretion must be exercised reasonably and not arbitrarily or capriciously. Rusty's Welding Service,29 Va.App. at 130,510 S.E.2d at 261. Furthermore, an order must be interpreted within its four corners. United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971).

Applying these principles of law, we find that the trial court erred in its construction of the discovery order. It is settled that the language of Rule 3A:11(b)(1)(i) requires the prosecutor to turn over written and recorded statements by the accused whether made to a law enforcement officer or not. Abunaaj, 28 Va.App. at 52-53 n. 1, 502 S.E.2d at 138 n. 1; Conway v. Commonwealth, 12 Va.App. 711, 715, 407 S.E.2d 310, 312 (1991) ("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."); Naulty v. Commonwealth, 2 Va.App. 523, 528, 346 S.E.2d 540, 543 (1986) (Rule 3A:11 places "no limitation" on the defendant's right to his own statements). The discovery order in this case varies from the language of Rule 3A:11 only in its omission of the limiting phrase "made by the accused," in the first clause. The trial court infers that this omission limits the Commonwealth's discovery obligations to statements made by the defendant to law enforcement officers. This interpretation necessarily rests on the view that the defendant purposely deviated from the language of Rule 3A:11 and deliberately narrowed his rights to discovery when he agreed to the order. See id. The Commonwealth offered no compelling reason for the trial court to accept this conclusion. We, therefore, hold that the trial court abused its discretion in finding that Smoot intentionally relinquished his entitlement to discover some of his statements.

In addition, the structure of the challenged sentence in the order, and the grammatical rules that pertain, do not support the trial court's interpretation. Generally, phrases separated by a comma and the disjunctive "or," are independent. See, e.g., Ruben v. Secretary of DHHS, 22 Cl.Ct. 264, 266 (1991) (finding that, the word "or" connects two parts of a sentence, "`but disconnect[s] their meaning'" (quoting G. Curme, A Grammar of the English Language, Syntax 166 (1986))); Quindlen v. Prudential Ins. Co., 482 F.2d 876, 878 (5th Cir.1973) (noting disjunctive results in alternatives, which must be treated separately); United States v. Erdos, 474 F.2d 157, 160 (4th Cir.1973) (finding that limiting phrase in statute is independent of and does not modify two earlier phrases because the limiting phrase is separated from the first two by a comma and the disjunctive "or"); United States v. Riely, 169 F.2d 542, 543 (4th Cir.1948) (interpreting the use of a comma and the disjunctive "or" as implying two separate and independent phrases in a Virginia statute authorizing payment of dividends by corporation "out of net earnings, or out of its net assets in excess of its capital"). Accordingly, the phrase, "made by the Defendant to any law enforcement officer," is independent of and does not modify the phrase, "[a]ny written or recorded statement or confessions."

Based on the foregoing, the order required the Commonwealth to disclose all of the defendant's written and recorded statements, irrespective of the recipient. Consequently, the trial court's ruling that Smoot's inculpatory letters written to his fellow inmates were not encompassed by the order was error.

However, to constitute reversible error, the Commonwealth's late disclosure of inculpatory evidence must prejudice the defendant's case. See Davis v. Commonwealth, 230 Va. 201, 204, 335 S.E.2d 375, 377-78 (1985)

; Conway, 12 Va.App. at 716,

407 S.E.2d at 312-13 (citation omitted). To show prejudice, the defendant must demonstrate how timely disclosure would have changed his trial strategy or affected the outcome of the trial.¹

See Davis, 230 Va. at 204, 335 S.E.2d at 377 (holding that to demonstrate prejudice from the nondisclosure of inculpatory evidence, defense counsel must "suggest to the trial court how their earlier disclosure would have benefited [defendant's] defense or altered the course of the trial"); Knight v. Commonwealth, 18 Va.App. 207, 215, 443 S.E.2d 165, 170 (1994) (holding that to demonstrate prejudice from the late disclosure of inculpatory evidence, defendant must "[offer an explanation] as to how his trial tactics might have been different if [the evidence] had been disclosed before trial"); Conway, 12 Va.App. at 716,

407 S.E.2d at 313 (noting that admission of nondisclosed evidence is reversible upon a showing that nondisclosure prejudiced defendant's "case" or "defense").

We note that this case does not involve the admission of inculpatory evidence that was untimely disclosed. See, e.g., Davis, 230 Va. at 204,

335 S.E.2d at 377 (undisclosed autopsy photographs of victim admitted into evidence); Conway, 12 Va.App. at 716,

407 S.E.2d at 313 (undisclosed tape recording admitted into evidence); Naulty, 2 Va.App. at 526,

346 S.E.2d at 542 (videotape of defendant purchasing chemicals used in the manufacture of PCP admitted into evidence). In such cases, the admission of the evidence may affect the determination of guilt or sentencing and prejudice a defendant who is unprepared for its impact. See Conway, ...