Coley v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Kelsey and Haley
Argued by teleconference

TYREE MACARTHUR COLEY
OPINION BY
v. Record No. 0275-09-2 JUDGE ROBERT P. FRANK
FEBRUARY 9, 2010
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge

Gregory R. Sheldon (Bain Sheldon, P.L.C., on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General
(William C. Mims, Attorney General, on brief), for appellee.

Tyree MacArthur Coley, appellant, appeals his convictions, following a bench trial, for

evading and eluding, in violation of Code § 46.2-817, leaving the scene of an accident, in

violation of Code § 46.2-894, and two counts of assault and battery on a law enforcement officer,

in violation of Code § 18.2-57. On appeal, he contends that the trial court erred in failing to

grant him a new trial when it was discovered that exculpatory evidence known to the police was

not disclosed to him prior to his trial. For the reasons that follow, we affirm.

BACKGROUND

Under well established principles of appellate review, we view the evidence and all

reasonable inferences deducible from that evidence in the light most favorable to the

Commonwealth, the party prevailing below. Banks v. Commonwealth, 41 Va. App. 539, 543,

586 S.E.2d 876, 877 (2003). So viewed, the evidence proved that on March 15, 2008, Richmond

police officers were conducting outstanding warrant checks at a particular motel, checking the

names of registered guests. Officers Derrick Longoria and William Bagent determined that
Room 150 was registered to appellant and that he had an outstanding warrant from Petersburg.

The officers knocked on the door of Room 150, but no one answered.

As they returned to their police vehicle, the officers saw a silver Ford Explorer back out

of a parking space quickly and spin its wheels as it left the area. The officers followed the

Explorer from the hotel parking lot. The Explorer then pulled into a parking space at a gas

station across the street from the motel.

From less than 13 feet away in the well-lit parking lot, Officer Longoria saw the driver of

the Explorer get out, look at him, and then walk into the store. Longoria noticed an indentation

under the driver’s right eye. Longoria recognized the driver from a previous encounter and told

Officer Bagent that the driver was Tyree Coley.

However, before backup officers arrived, appellant returned to his vehicle and left the

parking lot. Longoria and Bagent attempted a traffic stop. Appellant drove back to the gas

station and, as the officers exited their police vehicle, the vehicle backed up and rammed the

police vehicle. Appellant drove off again. Longoria and Bagent pursued appellant onto the ramp

of Interstate 95 South. The vehicle again stopped, and appellant attempted to ram his vehicle

into the police vehicle. 1 Although they continued to pursue appellant, the officers lost sight of

the Explorer.

The officers then executed a search warrant on Room 150. They found a duffle bag

containing five or six pictures of appellant posing with his friends. The photographs were not

produced at trial. At trial, Officer Longoria testified that the search of the hotel room produced

no other identifying items. Officer Bagent testified that he did not recall if other identifying

items were found.

1
At trial, Longoria testified that he did not recall testifying at preliminary hearing that the
Explorer did more damage the second time it hit the police vehicle.

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 After completing the search, both officers pulled recent and older photographs of

appellant and his twin brother, Tyrone Coley. Longoria also took the photographs to the gas

station for the clerk to identify. At trial, both officers testified that appellant, not his brother, had

been driving the Explorer.

Officer Longoria testified that the driver who returned to the gas station and rammed the

police vehicle was the same person who had first driven into the gas station parking lot.

Longoria stated that during the pursuit, the driver looked right at them. Longoria noticed an

indentation under appellant’s right eye. Longoria testified that he knew appellant had a tattoo on

the right side of his neck, but he could not testify to seeing it that night. Bagent testified that

appellant “was definitely the same individual that I saw driving the silver Ford Explorer.”

Bagent also testified that appellant had an indentation on the left side of his face and that based

on a photograph from 2005, Tyrone Coley was much heavier than appellant.

Longoria testified that he did not write the police report of this incident. Bagent testified

that he could not remember who wrote the report. The parties stipulated that the police report

contained no reference to an indentation in appellant’s face.

Appellant’s mother, Constance Coley, testified that her son Tyrone had been a fugitive

for about five years. She stated that in March 2008, Tyrone and appellant were the same height

and weight and wore their hair in a similar fashion. She also testified that she went to the motel

in question on the night of the incident. She was not there to see appellant, but she testified that

appellant was there.

Latonya Terry, a convicted felon, testified that she was with appellant from 7:00 a.m. on

March 15 until 4:00 a.m. the following day. Terry stated that she remembered the date because a

friend of hers and appellant’s had died on that date in 2005.

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 The trial court convicted appellant of the charges, stating, “on the evidence I find beyond

a reasonable doubt that you were the person involved in these events.”

After his conviction but before his sentencing, appellant filed a motion to set aside the

verdict and for a new trial. The motion alleged the Commonwealth failed to disclose exculpatory

evidence; specifically 1) that police recovered a document from Room 150 of the motel bearing

the name of Jeremy Venable; 2) that the officers testified differently as to the location of the

indentation on appellant’s face; 3) that Longoria was aware of appellant’s tattoo prior to the

March 15, 2008 encounter, but did not observe the tattoo from a distance of less than 13 feet;

4) that neither officer knew who wrote the police report and that the report did not mention any

indentation on the driver’s face; and 5) that Longoria had previously testified that the Explorer

struck the police vehicle a second time on 95 south, causing more damage than the first impact.

After a hearing on appellant’s motion, the trial court overruled the motion.

STANDARD OF REVIEW

“In making a Brady challenge, ‘[a] defendant cannot simply allege the presence of

favorable material and win reversal of his conviction. Rather, [he] must prove the favorable

character of evidence he claims has been improperly suppressed. Speculative allegations are not

adequate.’” Currie v. Commonwealth, 30 Va. App. 58, 67, 515 S.E.2d 335, 340 (1999) (quoting

Hughes v. Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451, 461 (1994)). “[A]

constitutional error occurs, and the conviction must be reversed, only if the evidence is material

in the sense that its suppression undermines confidence in the outcome of the trial.” United

States v. Bagley, 473 U.S. 667, 678 (1985).

ANALYSIS

“A Brady violation occurs when the government fails to disclose evidence materially

favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) (citing

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Brady v. Maryland, 373 U.S. 83, 87 (1963)). The United States Supreme Court has held that

Brady obligations extend not only to exculpatory evidence, but also to impeachment evidence,

Bagley, 473 U.S. at 676, and that a Brady violation exists even when the government fails to

divulge evidence that is “known only to police investigators and not to the prosecutor.” Kyles v.

Whitley, 514 U.S. 419, 438 (1995). “[T]he individual prosecutor has a duty to learn of any

favorable evidence known to the others acting on the government’s behalf in the case, including

the police.” Id. at 437.

“There are three components of a true Brady violation: The evidence at issue must be

favorable to the accused, either because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice

must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Evidence is material “‘if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.’” Id. at 280

(quoting Bagley, 473 U.S. at 682). However, it is not necessary to demonstrate “by a

preponderance that disclosure of the suppressed evidence would have resulted ultimately in the

defendant’s acquittal.” Kyles, 514 U.S. at 434. A conviction must be reversed if the accused

shows “that the favorable evidence could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Id. at 435.

In this case, four of the five pieces of non-disclosed information mentioned by appellant

were either discovered during the trial or could have been secured had appellant exercised

reasonable diligence. Only the first piece of evidence – the document bearing Jeremy Venable’s

name – became available to appellant after the conclusion of his trial.

Appellant complains that Officers Longoria and Bagent gave inconsistent testimony as to

the location of the indentation on his face, that neither officer knew who wrote the police report,

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and that the police report contained no reference to any indentation on the driver’s face. It is

undisputed that these pieces of information were not disclosed to appellant. However, none of

this results in a Brady violation.

Once the trial was in progress, the officers’ testimony revealed inconsistencies as to the

location of the indentation on appellant’s face. Appellant had the opportunity to explore the

inconsistency, as well as the omission of the indentation in the police report, through

cross-examination, and he did so. Appellant’s mother testified, and appellant did not take that

opportunity to explore whether his twin brother had an indentation on his face. Therefore,

appellant suffered no prejudice.

Appellant also argues that he was prejudiced by Officer Longoria’s testimony at trial that

although Longoria was aware of appellant’s tattoo prior to their encounter on March 15, 2008, he

did not observe it that night. This argument is without merit. Longoria’s testimony at trial

revealed this fact, and again, appellant had the opportunity to cross-examine Longoria.

Appellant fully explored any alleged weaknesses in Longoria’s testimony. Further, appellant

also had the opportunity to ask his mother whether his twin had a tattoo. His failure to do so

does not constitute trial court error.

Appellant cites Bowman v. Commonwealth, 248 Va. 130, 445 S.E.2d 110 (1994), to

support his position. However, Bowman is distinguished on its facts. The arresting officer, in

his police report, described the suspect as approximately five-foot-eight, 150 pounds. The same

officer, who had seen appellant approximately 12 times, identified appellant in a photo lineup.

At the time of the offense, appellant weighed approximately 194 pounds and was six feet two

inches. At trial, Bowman contended this discrepancy in height and weight affected the officer’s

credibility and was exculpatory. Appellant moved for a dismissal based on the prosecution’s

failure to disclose this evidence. The trial court denied the motion.

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 The Supreme Court of Virginia determined that Bowman learned of the discrepancies in

the Commonwealth’s evidence during trial and was allowed to cross-examine the officer on that

issue. Thus, the Court concluded Bowman was able to effectively challenge the credibility of the

officer. No Brady violation occurred as to credibility. However, the Court reached a different

conclusion as to Bowman’s argument concerning mistaken identity. Id. at 134, 445 S.E.2d at

112.

The Court indicated the drug sale occurred late at night, the officer was in Bowman’s

presence for only five or six minutes, and the photo identification was made over 30 days after

the sale. In addition to a size discrepancy, the undisclosed report indicated Bowman had two

scars on his face. The Bowman Court concluded these facts suggested a “possibility of mistaken

identity.” Id.

The Supreme Court of Virginia concluded Bowman “reasonably may have taken

different and potentially significant actions which could have strengthened [his] defense.” Id. at

134-35, 445 S.E.2d at 112. Essentially, the Court in Bowman reviewed the facts and determined

there was a possibility of mistaken identity. Here, however, there is no such possibility that the

two officers confused appellant with his twin brother.

Officer Longoria did not need a photo lineup to identify appellant. He knew him from a

previous encounter and knew him by name. He identified appellant at the scene. Officer Bagent

also saw appellant and identified him. The officers saw appellant in a well-lit parking lot from

less than 13 feet away. The room registered to appellant contained numerous photos of

appellant, not his twin brother. The record further revealed the two police officers had the

opportunity to view photos of appellant and his twin and continued to identify appellant as the

suspect. Further, appellant’s mother placed appellant, not his twin, at the motel on the night of

the incident.

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 The inconsistent testimony as to the location of the indentation on appellant’s face, which

officer wrote the police report, and the number of impacts to the police vehicle are credibility

issues resolved by Bowman.

Longoria indicated he knew appellant had a tattoo on his neck but he could not testify as

to whether he saw it that night. This fact does not support the conclusion that Longoria confused

appellant with his twin. No evidence suggests the twin was in the vicinity. To the contrary,

appellant’s mother testified the twin was a fugitive for about five years, but that she saw

appellant at the motel.

Unlike Bowman, where his conviction was based on the officer’s sole testimony, here

two officers identified appellant without hesitation and appellant’s mother placed him at the

motel.

Furthermore, our recent decision in Bly v. Commonwealth, 55 Va. App. 1, 10, 682

S.E.2d 556, 561 (2009), controls. In Bly, we held,

“Absent clear evidence to the contrary in the record, the judgment
of a trial court comes to us on appeal with a presumption that the
law was correctly applied to the facts.” Caprino v.
Commonwealth, 53 Va. App. 181, 184, 670 S.E.2d 36, 37-38
(2008) (quoting Yarborough v. Commonwealth, 217 Va. 971, 978,
234 S.E.2d 286, 291 (1977)); see Groves v. Commonwealth, 50
Va. App. 57, 61-62, 646 S.E.2d 28, 30 (2007) (“This means the
‘judge is presumed to know the law and apply it correctly in each
case.’” (quoting Crest v. Commonwealth, 40 Va. App. 165, 172
n.3, 578 S.E.2d 88, 91 n.3 (2003))).

Id.

As in Bly, appellant points to no such evidence to rebut this presumption. “Thus, for

purposes of this appeal, we presume the trial court correctly applied the principles dictated by

Brady and made a factual determination that [appellant] was not prejudiced by the

Commonwealth’s nondisclosure of the [non-disclosed] information.” Id. at 10-11, 682 S.E.2d at

561. See Deville v. Commonwealth, 47 Va. App. 754, 757-58, 627 S.E.2d 530, 532 (2006)
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(explaining that the trial court’s “no prejudice” determination under Brady, following appellant’s

bench trial, was a factual finding).

We concluded in Bly,

Accordingly, here, as in Deville, where “a trial judge, sitting as
‘both trier of fact and arbiter of law,’ finds the Brady evidence
inconsequential, there can be ‘no logical possibility’ that its earlier
disclosure ‘would have altered the outcome of the case.’” Id. at
757-58, 627 S.E.2d at 532 (quoting Stroik v. State, 671 A.2d 1335,
1340 (Del. 1996)). That is because, “[u]nder such circumstances,
we need not hypothesize how a reasonable jury would likely have
reacted to the new information. We know with certitude, from the
factfinder himself, that the outcome of the proceeding would not
have been different had the evidence been disclosed earlier.” Id.
However, as further explained in Deville, “a trial court cannot
foreclose appellate review by an ipse dixit denial of prejudice. Just
as the original finding of guilt must fail if no ‘rational trier of fact’
could have made such a finding, so too the factual finding of no
prejudice should be set aside if patently unreasonable.” Id.
(internal citations omitted).

Bly, 55 Va. App. at 11, 682 S.E.2d at 561.

As in Bly, from our review of the record, we cannot say the trial judge’s presumptive

finding of no prejudice was patently unreasonable.

Appellant also assigns much importance to the fact that Officer Longoria had previously

testified at the appellant’s preliminary hearing that the Explorer struck the police vehicle a

second time on 95 south, causing more damage than the first impact. Again, this information

emerged during Longoria’s trial testimony, and appellant was able to explore this inconsistency

by way of his cross-examination. Further, to the extent that the preliminary hearing testimony

showed an inconsistency, appellant had access to that transcript as much as the Commonwealth

did. Indeed, appellant and his counsel were present at the preliminary hearing and had the

opportunity to hear Longoria’s testimony.

Each of these aforementioned pieces of information came to light during the course of

appellant’s trial. Appellant could have discovered some of this evidence himself. Further,
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appellant had the opportunity to question and impeach the Commonwealth’s witnesses with this

information through cross-examination. He also referred to these discrepancies in his closing

argument. Appellant therefore suffered no prejudice. Appellant did not claim surprise, did not

ask for a continuance, 2 and had an adequate opportunity to explore any inconsistencies, so no

harm resulted.

Finally, appellant contends the trial judge should have granted his motion for a new trial

based on the fact that police recovered a document from Room 150 of the motel bearing the

name of Jeremy Venable. This information was admittedly not disclosed to appellant until after

his trial. However, the information is neither relevant nor exculpatory. The issue of a possible

mistaken identity involved only appellant and his twin brother, Tyrone Coley. Appellant never

advanced any theory that Jeremy Venable was the driver.

Furthermore, police did not recover Venable’s identification, mail, or other documents

indicating that he had been in Room 150. The document was simply a piece of paper with

Venable’s name, Richmond City Jail number, tier number, and jail address. This does not

support a theory that Venable was driving the Explorer. Its exculpatory value is questionable,

and the document is certainly not material.

Finally, the Commonwealth’s other evidence is so overwhelming that the nondisclosure

of this piece of information did not prejudice appellant. See generally Jefferson v.

Commonwealth, 27 Va. App. 477, 487, 500 S.E.2d 219, 224 (1998). In Jefferson, the

Commonwealth did not disclose a statement from an eyewitness to a shooting that she could not

2
See generally Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986) (holding
that the trial court is under no duty to offer a remedy for which the defendant has not asked).
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see without her glasses. See id. at 481, 500 S.E.2d at 221. However, there were three other

eyewitnesses who testified that they saw the defendant shoot the victim. Id. at 482, 500 S.E.2d at

222. This Court ruled that faced with such overwhelming evidence of guilt, there was nothing in

the record to show that the nondisclosed information was prejudicial or material to the defendant.

Id. at 488, 500 S.E.2d at 225.

Likewise, in this case, Officers Longoria and Bagent determined that appellant was the

registered guest of Room 150. They then observed the Explorer leave the motel parking lot, and

they followed the vehicle to a well-lit parking lot at a gas station. Both officers saw the driver,

and Longoria recognized the driver as appellant. When officers later searched the motel room,

they discovered photographs of appellant posing with his friends. The evidence against appellant

was so strong that the nondisclosure of a piece of paper bearing Jeremy Venable’s name caused

no harm or prejudice to appellant.

The Commonwealth failed to disclose evidence to which appellant was entitled.

However, this nondisclosure caused no prejudice to appellant and did not undermine confidence

in the outcome of his trial. Therefore, appellant was not entitled to a new trial.

CONCLUSION

For the foregoing reasons, we conclude that the trial court did not err in refusing to grant

appellant a new trial. We therefore affirm appellant’s convictions.

Affirmed.

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