Johnson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia

MUSTAFAA JOHNSON
OPINION BY
v. Record No. 0335-02-2 JUDGE SAM W. COLEMAN III
JUNE 10, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Pamela S. Baskervill, Judge

Elliott B. Bender for appellant.

Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

The trial court convicted Mustafaa Johnson in a bench trial

of distributing cocaine in violation of Code § 18.2-248. On

appeal, Johnson contends the trial court abused its discretion by

failing to grant him a hearing or new trial based on newly

discovered evidence. He also asserts that the Commonwealth

violated his constitutional right to obtain exculpatory evidence

by not providing him with information concerning a witness'

criminal charges and convictions. Finding no error, we affirm.

BACKGROUND

Linda Jones, a paid informant working with a drug task

force, testified that on November 28, 1997, Investigator Vaughan

gave her money to make a controlled purchase of cocaine. Jones

stated that after receiving the money she returned to her motel
room where she arranged to and did purchase cocaine from

Mustafaa Johnson at about 6:00 p.m. that evening. Jones had

known Johnson for about three weeks prior to the purchase.

On direct examination, Jones testified that she had been

convicted of four felonies involving food stamp fraud and of

feloniously taking a minor across state lines. Jones denied

that she had any other convictions for offenses involving lying,

cheating, stealing, shoplifting, or petit larceny.

Jones testified that when she made the buy she was working

with the drug task force making controlled drug purchases. She

stated that her reason for doing so was that a drug dealer had

attempted to sell drugs to her twelve-year-old daughter. She

also admitted that she had used drugs. She further stated that

the Commonwealth had never dismissed a criminal charge against

her as an incentive or reason for her to work with the task

force.

Investigator Vaughan testified that before the controlled

buy he searched Jones and her vehicle for drugs and found none.

After Jones received the purchase money, Vaughan observed Jones

return to her motel room. Vaughan testified that at

approximately 6:29 p.m. an individual knocked on the motel room

door, entered the room, and exited the room. Vaughan stated

that after the individual left the motel room, Jones met Vaughan

at a pre-arranged location at about 6:45 p.m. and gave him the

cocaine that she said she had purchased. Vaughan testified that

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Jones was paid for making the purchase and for testifying in

court. Vaughan testified that he has worked with Jones on about

twenty-five to thirty drug cases, all of which have resulted in

convictions.

Johnson made a motion to strike the evidence at the end of

the Commonwealth's case. He argued that Jones' demeanor on the

witness stand was evasive and that her testimony was incredible

and biased. Johnson also asserted that the Commonwealth had

impeached Jones by proving her prior criminal record of five

felony convictions and that her testimony should not be

believed.

The trial court overruled the motion to strike Jones'

testimony. The trial court found that Jones had the "appearance

of being honest and candid" and that she was a "very credible"

witness.

Johnson testified and denied that he sold cocaine to Jones.

At the close of the evidence, Johnson again argued that

Jones' testimony was incredible because she was a convicted

felon, a former drug user, and because she was paid to testify.

The trial court found Johnson guilty of the charged offense,

reiterating that it found Jones' testimony to be "unequivocal"

and not "incredible in the least."

After Johnson was sentenced, he filed a motion for

rehearing or a new trial based on newly discovered evidence.

Johnson attached to the motion an affidavit from a private

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investigator. The affidavit stated that Jones has used several

names and has possibly used several different social security

numbers. The affidavit further stated that Jones had several

show cause orders and a capias issued against her at about the

same time she was working with the drug task force.

At a hearing held on the motion, Johnson argued that the

outstanding show cause orders, which the Commonwealth did not

disclose, proved that Jones had or may have had a motivation for

working with law enforcement and for testifying in court, which

was to avoid going to jail. Johnson acknowledged, however, that

the evidence of the show cause orders "may not [have been]

admissible" as impeachment evidence at trial. Johnson also

asserted that Jones had several misdemeanor convictions for

assault and battery and being drunk in public. Additionally,

Johnson contended he had newly discovered evidence that an

officer from the South Hill Police Department would testify that

Jones has a reputation in the community for being dishonest.

Johnson argued that all of this after-discovered evidence would

have impeached Jones' trial testimony and would have proved that

Jones testified untruthfully. Johnson requested a hearing in

order to "more properly" present this newly discovered evidence.

The trial court ruled that most of the proffered evidence

was irrelevant and not admissible at the trial and that the

evidence which might have been admissible was not sufficient to

meet the requirements for granting a hearing or new trial.

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 ANALYSIS

"Motions for new trials based upon after-discovered

evidence are addressed to the sound discretion of the trial

judge, are not looked upon with favor, are considered with

special care and caution, and are awarded with great

reluctance." Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d

145, 149 (1983). Because the granting of such a motion is

addressed to the sound discretion of the trial court, that

decision will not be reversed absent an abuse of discretion.

See Mundy v. Commonwealth, 11 Va. App. 461, 481, 390 S.E.2d 525,

536, aff'd on reh'g en banc, 399 S.E.2d 29 (1990).

Because of the need for finality in court
adjudications, four requirements must be met
before a new trial is granted based upon an
allegation of newly-discovered evidence:
(1) the evidence was discovered after trial;
(2) it could not have been obtained prior to
trial through the exercise of reasonable
diligence; (3) it is not merely cumulative,
corroborative or collateral; and (4) is
material, and as such, should produce an
opposite result on the merits at another
trial.

Id. at 480, 390 S.E.2d at 535. The burden is on the moving

party to show that all four of these requirements have been met

in order to justify a new trial. See Carter v. Commonwealth, 10

Va. App. 507, 512-13, 393 S.E.2d 639, 642 (1990).

Jones' prior misdemeanor convictions for assault and

battery and being drunk in public were not crimes involving

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moral turpitude and would not have been admissible at trial to

impeach Jones.

"Where the purpose of the inquiry is to
impeach a witness' veracity,
cross-examination concerning a witness'
prior convictions is limited to prior felony
convictions and convictions for misdemeanors
involving moral turpitude." Misdemeanor
crimes of moral turpitude are limited to
those crimes involving lying, cheating and
stealing, including making a false statement
and petit larceny.

Newton v. Commonwealth, 29 Va. App. 433, 448, 512 S.E.2d 846,

853 (1999) (citation omitted).

In addition, Johnson offered no evidence tending to prove

that Jones was motivated to testify or work with the drug task

force by any promises of leniency resulting from the issuance or

disposition of the show cause orders or the capias. As the

trial judge commented, "You are just surmising that because [the

show cause orders were issued] in the same time period that that

was her motivation, is that correct?" Johnson's counsel

replied, "Yes, I think that is part of it."

Furthermore, Jones' credibility was impeached at the trial

by proof that she had been convicted of five felonies. Thus,

even if the evidence of the show cause orders and capias was

somehow admissible, which has not been shown on this record,

that evidence does not constitute significant additional

impeachment of Jones' credibility. The evidence from a police

officer that Jones had a reputation in the community for being

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untruthful would have been available at the first trial and

could have been available with due diligence.

Finally, the evidence proffered by Johnson was not likely

to produce a different result at trial. "Before setting aside a

verdict, the trial court must have evidence before it to show in

a clear and convincing manner 'as to leave no room for doubt'

that the after-discovered evidence, if true would produce a

different result at another trial." Carter, 10 Va. App. at 513,

393 S.E.2d at 642 (citation omitted). Accordingly, the trial

court did not abuse its discretion in denying Johnson's request

for an evidentiary hearing or his motion for a new trial. The

proffered evidence either was not admissible or was not shown to

be likely to lead to the discovery of other evidence that would

produce a different result at trial. The burden was on Johnson

to produce newly discovered evidence to justify an evidentiary

hearing or a new trial. The trial court has no responsibility

to convene an evidentiary hearing post-trial to enable a

defendant to conduct discovery in hopes of finding evidence to

impeach the judgment of the court.

Johnson also contends the Commonwealth violated his due

process rights by failing to provide him with a copy of Jones'

criminal record and information about Jones' relationship with

other police departments and the Mecklenburg Circuit Court.

The discovery order entered in the case directed the

Commonwealth "to provide the attorney for the accused with the

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record of any felony convictions or the convictions of any

misdemeanor involving moral turpitude of any Commonwealth

witness who testifies, such information to be provided

immediately upon the conclusion of such witness' testimony in

chief."

Due process is violated if the prosecution suppresses

requested evidence favorable to the accused and the evidence

suppressed is material to guilt or punishment. Brady v.

Maryland, 373 U.S. 83, 87 (1963). Evidence is "material," and

its nondisclosure justifies reversal on appeal, only "if there

is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different." United States v. Bagley, 473 U.S. 667,

682 (1985). Johnson has failed to establish a "reasonable

probability" that disclosure of the evidence would have affected

the trial. Wood v. Bartholomew, 516 U.S. 1, 5-6 (1995) (no

Brady violation for failure to disclose polygraph tests).

The evidence that Jones had prior felony convictions was

admitted at the trial during the Commonwealth's direct

examination of Jones. Therefore, Johnson has demonstrated no

prejudice as a result of the Commonwealth's failure to disclose

that information.

Evidence concerning Jones' prior misdemeanor convictions

was not admissible at trial because the convictions did not

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involve offenses of moral turpitude. Therefore, any failure to

disclose that information did not violate Brady.

Furthermore, given that Jones admitted the felony

convictions, her former drug use, and that she was a paid

informant, we find there is no reasonable probability that

disclosure of additional impeaching information in the form of

the show causes and capias would have led the trial court to a

different conclusion. "The mere possibility that an item of

undisclosed information might have helped the defense . . . does

not establish 'materiality' in the constitutional sense."

United States v. Agurs, 427 U.S. 97, 109-10 (1976). Indeed,

Johnson's counsel stated during argument, "I am not suggesting

that having her criminal record would necessarily make a

difference one way or the other." Accordingly, there was no

Brady or discovery violation.

Therefore, we affirm.

Affirmed.

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Benton, J., dissenting.

Eighteen days after the trial judge entered the final

conviction order, Johnson sought an evidentiary hearing on his

motion for a new trial. I would hold that the trial judge

abused her discretion in refusing Johnson's request for an

evidentiary hearing in support of his motion for a new trial.

The record indicates the grand jury issued indictments

alleging that "Mustafaa Johnson a/k/a 'Kat Anderson' or 'Cat'"

distributed cocaine on seven different occasions. The record

also reflects that the trial judge entered a pretrial discovery

order that contained the following:

It is further ORDERED that the attorney
for the Commonwealth turn over or otherwise
make available to the accused any and all
evidence or information within the
possession, custody or control of the
Commonwealth which tends to exculpate the
accused, including any statements of
material witnesses that are inconsistent or
which become inconsistent at the time such
witness testifies at trial.

At trial, a "state informant . . . working with the drug

task force" testified that on six different days (July 9, July

23, August 9, August 20, October 15, and October 29), he was

searched and then directed by Investigator Vaughan to Sutherland

Avenue where he met a man and purchased cocaine from that man.

The state informant, who had not been convicted of a felony or a

misdemeanor for lying, stealing or cheating, testified that he

could not identify Johnson as the man, known as "Cat," who sold

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him cocaine. The trial judge granted Johnson's motion to strike

the evidence as insufficient to support those six charges.

Significantly, despite the mandate of the pretrial

discovery order, the prosecutor did not disclose that the state

informant could not identify Johnson to be the man who sold

cocaine to the informant on six separate occasions. See Roviaro

v. United States, 353 U.S. 53, 60-61 (1957) (holding that

fundamental fairness requires disclosure of an informer's

identity or the content of the informer's communication when it

"is relevant and helpful to the defense of the accused, or is

essential to a fair determination of a cause"). Instead, the

prosecutor simply allowed the state informant to disclose this

fact at trial, and, in doing so, deprived Johnson of the

opportunity to use this exculpatory evidence to its full

advantage.

At trial, the prosecutor relied solely upon the testimony

of another informant, Linda Jones, to prove the events relating

to the seventh event, which the indictment alleged to have been

a cocaine sale on November 28. The record establishes that

prior to trial the prosecutor also failed to disclose evidence

concerning Jones's prior convictions and violation of her

probation. Both had a significant bearing on her credibility

and bias. See Brady v. Maryland, 373 U.S. 83, 87 (1963); United

States v. Bagley, 473 U.S. 667, 676 (1985) (holding that

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"impeachment evidence . . . as well as exculpatory evidence

falls within the Brady rule").

Denying Johnson's attorney the opportunity to know in

advance this impeachment evidence, the prosecutor disclosed it

by having Jones testify at trial that she has been convicted

five times of felonies and that she acts as an informant for

various police entities. A police officer testified that Jones

was being paid $50 for her court appearance. The officer also

testified that Jones was not shown photographs of Johnson before

his arrest. The officer testified he ascertained Johnson was

the seller "by the nickname he was going by, by Cat." Jones

then identified Johnson at trial as the person known as "Cat"

and testified that Johnson sold cocaine to her on November 28.

Obviously, if Johnson had been given this impeachment

information pre-trial (and told of the other informant's

inability to identify him), he could have used it to prepare his

cross-examination of Jones. See Barker v. Commonwealth, 230 Va.

370, 376, 337 S.E.2d 729, 733 (1985) (holding that "[o]ne

purpose of cross-examination is to show that a witness is biased

and his testimony unreliable because it is induced by

considerations of self-interest"); Hewitt v. Commonwealth, 226

Va. 621, 623, 311 S.E.2d 112, 114 (1984) (noting that the

Supreme Court of Virginia has "consistently held that the right

of an accused to cross-examine prosecution witnesses to show

bias or motivation, when not abused, is absolute"); Keener v.

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Commonwealth, 8 Va. App. 208, 213, 380 S.E.2d 21, 24 (1989)

(holding that failure to disclose information about an informer

who was an active participant in the event will almost always be

material to the accused's defense).

In connection with his motion for an evidentiary hearing,

Johnson's attorney filed an affidavit from an investigator

asserting that a show cause order, requiring Jones to

demonstrate why she should not be remanded to prison for

twenty-five years, was served on Jones two weeks before the day

she alleges Johnson sold her cocaine. The affidavit further

asserts that Jones has used four different names and two

different social security numbers and that a police officer

would testify that Jones has a reputation for untruthfulness and

dishonesty. During argument on his motion, Johnson's attorney

additionally proffered he was not aware that Jones would testify

at trial, that he had not been given a report of Jones's

criminal record, that a police officer would testify that Jones

stole money from him, that the evidence would establish Jones

implicated Johnson as a means of avoiding a prison sentence, and

that this evidence would tend "to show [Jones] has perjured

herself on the stand . . . and . . . goes to impeachment of

testimony on the stand."

In response, the prosecutor admitted that Jones's formal

conviction "record today . . . doesn't show any felony

convictions." The prosecutor represented to the judge that he

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"knew from prior times [when she testified] that she had four

prior felonies because [he] had repeatedly pulled the records."

The record indicates, however, that Jones testified she had been

convicted of five felonies. The prosecutor also confirmed that

Jones "worked as an undercover person in Mecklenburg County,"

and he observed "that some police department officials feel she

is reliable. Some don't."

The standards for granting a motion for a new trial are

well established.

Motions for new trials based on
after-discovered evidence are addressed to
the sound discretion of the trial judge, are
not looked upon with favor, are considered
with special care and caution, and are
awarded with great reluctance. . . . The
applicant bears the burden to establish that
the evidence (1) appears to have been
discovered subsequent to trial; (2) could
not have been secured for use at the trial
in the exercise of reasonable diligence by
the movant; (3) is not merely cumulative,
corroborative or collateral; and (4) is
material, and such as should produce
opposite results on the merits at another
trial.

Stockton v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387

(1984). The rule is also well established that allegations in

an affidavit may be sufficient to require the judge to conduct

an evidentiary hearing on a motion for a new trial. See

Commercial Union Ins. Co. v. Moorefield, 231 Va. 260, 265, 343

S.E.2d 329, 333 (1986); Evans v. Commonwealth, 39 Va. App. 229,

239-40, 572 S.E.2d 481, 486 (2002).

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 There are cases in which a convicted person's entitlement

to a new trial is apparent from facts conceded to be true or on

the record alone. Where, however, a convicted person's

entitlement to a new trial turns on facts that are disputed, the

convicted person has the burden to establish entitlement. In

this latter class of cases, the accused ordinarily must be given

the opportunity to introduce evidence to support the motion.

See e.g. Dozier v. Morrisette, 198 Va. 37, 40, 92 S.E.2d 366,

368 (1956) (holding that the trial judge "properly" held a

hearing in view of the affidavit in support of a motion for a

new trial); Evans, 39 Va. App. at 240, 572 S.E.2d at 486

(holding that "the trial judge should not have dismissed [the]

motion [for a new trial] without first conducting an adequate

investigation upon evidence properly presented at a hearing").

In this case, the proffer was sufficient to establish that

Johnson could present evidence probative of the issues the trial

judge was required to determine in ruling on Johnson's motion

for a new trial. The proffer and the record demonstrate that

"[t]he evidence could not have been discovered prior to trial

even through the exercise of reasonable diligence and could, if

believed, have produced a different result at another trial."

Whittington v. Commonwealth, 5 Va. App. 212, 215, 361 S.E.2d

449, 451 (1987). In addition, and pertinent to the

determination whether to grant a new trial, the proffer

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established that "the witness sought to be impeached is 'the key

prosecution witness.'" Id. at 216, 361 S.E.2d at 452.

In view of the proffer, the prosecutor's unsubstantiated

vouching for the accuracy of Jones's testimony about her

criminal record, and the undisputed failure of the other

prosecution witness to identify Johnson as the same "Cat" who

sold him cocaine on six separate occasions, I believe Johnson

was entitled to the opportunity to present evidence in support

of his motion for a new trial. Thus, I would hold that the

trial judge abused her discretion in refusing to suspend the

judgment, see Rule 1:1, and in failing to order an evidentiary

hearing.

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