Workman v. Com.

• Citation: 636 S.E.2d 368
• Decision Date: 03 November 2006
• Docket Number: Record No. 052411.
• Parties: Timothy Glen WORKMAN v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

636 S.E.2d 368

Timothy Glen WORKMAN v. COMMONWEALTH of Virginia.

Record No. 052411.

Supreme Court of Virginia.

November 3, 2006.

COPYRIGHT MATERIAL OMITTED

Frank K. Friedman (Anthony F. Anderson; Melissa W. Friedman; Woods Rogers; Anderson & Friedman, on briefs), Roanoke, for appellant.

Donald E. Jeffrey, III, Asst. Atty. Gen. (Robert F. McDonnell, Atty. Gen., on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KINSER, LEMONS, and AGEE, JJ., and STEPHENSON, Senior Justice.

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider whether evidence discovered by the defendant after trial and before sentencing was exculpatory in nature and should have been disclosed to Timothy Glen Workman ("Workman") by the Commonwealth prior to trial.

I. FACTS AND PROCEEDINGS BELOW

Workman was an agent for the United States Drug Enforcement Administration ("DEA") on temporary assignment in Roanoke, Virginia. While off-duty, he was involved in an altercation with Keith E. Bailey ("Bailey") and James A. Bumbry, II ("Bumbry"). Workman shot and killed Bailey. Although he claimed that he acted in self-defense, Workman was charged with first-degree murder and use of a firearm in the commission of murder. A jury acquitted him of murder and use of a firearm in the commission of murder; however, the jury found Workman guilty of voluntary manslaughter. The trial court sentenced Workman to six years and nine months in prison in accordance with the jury's verdict; however, the trial court suspended one year and nine months of the sentence.

On the evening preceding the early morning shooting, Workman had been drinking alcoholic beverages at the bar of a restaurant. When the restaurant closed in the early morning hours, Workman accompanied a woman he had met at the bar, Melissa Booth ("Booth"), to her car in the parking lot. While they were sitting in Booth's car, another car came beside them facing the same direction. Bailey and Bumbry, who had been in the restaurant that evening, were in the adjacent car. They motioned for Booth to roll down her window. Workman testified that Booth "seemed kind of alarmed or confused, who are these guys, why are they pulling up beside me." Nonetheless, Booth rolled down her window. Bailey and Bumbry questioned why Booth was with Workman. The verbal exchange escalated when Workman "flipped the finger" to Bailey and Bumbry in response to their comments. Both Bailey and Bumbry left their car. Workman testified that he heard Bailey say, "I'll fucking kill you, you bitch." At that time, Workman retrieved a pistol from his ankle holster and put it in his right rear pocket.

Booth saw Workman transfer the gun at which time Workman identified himself to Booth as "a cop." When Workman opened the passenger side door of Booth's car, he saw Bailey "at the end of the trunk coming straight at [him] yelling" that he knew Booth and that Workman did not have "any business in [Booth's] vehicle."

Workman responded by telling Bailey to "get [his] ass back in the car." According to Workman, Bailey was undeterred and grabbed Workman by the throat and pinned him against the open passenger side door. Workman testified that as he was being assaulted by Bailey, he saw Bumbry coming toward the two men from the front of the car. Workman said that Bumbry was "draw[ing] a small frame automatic [weapon] from his pocket" and that the weapon was "coming towards the back of [Workman's] head."

According to Workman, at this point in the struggle, he drew his own weapon and "began to raise it" hoping that Bailey would step back and Workman could confront Bumbry. But Bailey grabbed Workman's gun and the two men struggled for the weapon while falling toward the passenger seat of the car. Workman testified that he told Bailey that he was "a cop" but the struggle for the gun continued. Workman stated that "[w]ith one man coming behind [him] with a gun, at that time [he] figured [he] had nothing else to do. So [he] tried pulling the trigger." The first shot missed Bailey. As they fell into Booth's car, Workman shot two more times because Bailey was "kind of on top of [him]" and "pull[ed] the trigger one more time" as the fight continued. When Bailey finally fell to the pavement, Workman saw Bumbry and Booth drive away in their cars.

Booth testified that she did not know Bailey or Bumbry but had seen them earlier that night in the bar. She stated that she saw Workman with a gun but did not see Bailey with a weapon. Further, she testified that she did not know whether Bumbry had a gun. Two bystanders each testified that they witnessed an argument between Bailey and Workman and that Bailey was choking Workman by his throat. They heard shots and saw both Bumbry and Booth drive away.

Forensic evidence revealed that four shots were fired from Workman's gun with one lodging in the car seat and three others making close-range "contact" wounds to Bailey's body. Bailey's hands tested positive for the presence of gunpowder residue. Furthermore, DNA testing revealed the presence of Workman's flesh under Bailey's fingernails. Blood alcohol analysis revealed that both Workman and Bailey were intoxicated at the time of the altercation.

Workman was indicted for first-degree murder and use of a firearm in the commission of murder. Workman's counsel filed a motion for discovery and inspection and for exculpatory evidence and a motion for a bill of particulars. The trial court entered an order requiring the Commonwealth to provide all information to which the defendant was entitled pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Following the discovery order and in exchange for the defendant's withdrawing his motion for a bill of particulars, the Commonwealth's Attorney "opened" the entire file to the defendant and his counsel for review.

At trial, the central issue was whether Workman acted in self-defense, which depended in part upon whether Bumbry possessed a weapon as he approached Workman and Bailey. Workman testified that Bumbry was armed; Bumbry testified that he was not.

After the trial but prior to sentencing, Workman learned for the first time of previously undisclosed evidence that he maintains could have been used to impeach the credibility of Bumbry and that supports the contention that Workman acted in self-defense. The undisclosed evidence was a pre-trial statement made by Jerry Lee Mackey, Jr. ("Mackey") to Detective M.E. Meador ("Meador") of the Roanoke City Police Department and Officer Kenneth Garrett ("Garrett") of the Roanoke City Police Department who was also cross-designated as a DEA agent. Mackey stated that a man, later identified as George T. Fitzgerald ("Fitzgerald"), told him that Bumbry tried to pass a gun to Bailey during the altercation in the parking lot and that Bumbry "fled the scene with the weapon." After learning of Mackey's pre-trial statement, Workman's private investigator, Peter W. Sullivan ("Sullivan"), interviewed Mackey and learned of two recent incidents witnessed by Mackey when Bumbry had used a firearm in altercations with others. One incident took place at a nightclub called "Ghost of Hollywood." Mackey reported that he saw Bumbry shooting at people with a .40 caliber Desert Eagle pistol. Mackey personally witnessed another recent shooting incident at "Iris' Barbershop" where Bumbry had "several guns" and was shooting at a man named J.D. Kasey. Additionally, Mackey's statements led to the discovery of a pre-trial statement by Fitzgerald that Bumbry recently fired a gun at Fitzgerald. Workman filed a motion for a new trial based upon the discovery of this undisclosed exculpatory information.

The trial court denied Workman's request for a new trial. The trial court characterized Mackey's first statement as inadmissible hearsay that did not meet the Brady materiality test. Nonetheless, the trial court stated that it was exculpatory evidence that should have been disclosed because it reasonably would have led to Mackey's subsequent statements. However, the trial court held that Mackey's other statements were cumulative evidence that were not material under Brady. Finally, the trial court concluded that Fitzgerald's statement would have resulted in "a separate trial within a trial" and noted that it was Fitzgerald who was found guilty of maliciously wounding Bumbry. For these reasons, the trial court concluded that Workman's claims did "not rise to a reasonable probability that the result of the proceeding would have been different."

The Court of Appeals of Virginia affirmed Workman's conviction in an unpublished opinion. After a petition for rehearing and petition for rehearing en banc were denied, Workman filed a notice of appeal to this Court. We granted the appeal on the sole issue of whether the Commonwealth's failure to provide Workman with exculpatory evidence about Bumbry deprived Workman of a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny so as to require reversal of Workman's conviction.

II. EXCULPATORY EVIDENCE

Workman alleges that the Commonwealth erroneously denied him the exculpatory evidence we will refer to as "Mackey I" wherein Mackey told Detective Meador and Officer Garrett on February 15, 2002, that Bumbry tried to pass Bailey a gun in the restaurant's parking lot. As Meador and Garrett interviewed Mackey on a homicide unrelated to the Workman case, Mackey said:

"So uh also on a DEA matter, at the Ole Charley's Restaurant, uh, JAMES, JAMES II BUMBRY, JAMES BUMBRY, II, uh was with KEITH, what's his last name. He's the one ... tried to pass KEITH a gun and the officer, DEA had to respond, whatever happened and JAY II, ... all that JAY II fled the scene with the weapon.... I got that information over the phone from several uh people that's been out there in the streets, just calling friends, reliable friends, ... said."

Meador told the lead investigator on the Workman case,...