COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia
ANTONIO L. JEFFERSON, S/K/A
ANTONIO LEMON JEFFERSON
OPINION BY
v. Record No. 0703-97-1 JUDGE RICHARD S. BRAY
JUNE 9, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
Andrew M. Sacks (Sacks & Sacks, on briefs),
for appellant.
Thomas D. Bagwell, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Antonio Lemon Jefferson (defendant) was convicted on pleas
of nolo contendere to indictments charging murder and the related
use of a firearm. Prior to sentencing, defendant learned that
the Commonwealth had failed to disclose certain exculpatory
evidence, and unsuccessfully moved the trial court for leave to
withdraw the pleas and grant a new trial. He argues on appeal
that the disputed pleas were improvidently tendered, and the
court erroneously denied the requested relief. We disagree and
affirm the convictions.
I.
A grand jury indicted defendant for the instant offenses on
May 22, 1995. The court ordered the Commonwealth, on June 26,
1995, to disclose, inter alia, "[a]ll evidence or information in
[its] possession or control . . . which tends to exculpate"
defendant. Responding, the Commonwealth provided defendant with
summarized portions of several statements given to police by
witnesses which conflicted with the recollections of other,
unnamed witnesses. 1 No mention was made of a police interview
with witness Letitia King conducted on September 19, 1994, during
which she was unable to provide details of the incident,
including the identity of the perpetrator, explaining, "I can't
see, I need glasses."
On June 29, 1995, defendant appeared before the court, pled
not guilty to the indictments, and requested trial by jury. At
trial on July 18, 1996, 2 defendant initially pled "no contest"
but, within minutes, changed his pleas to "not guilty" on both
indictments and demanded a jury trial. During the attendant
colloquy with the court, defendant complained, "we're not ready,"
because his attorney was unprepared and his witnesses were not
present. However, following further inquiry, the court ordered
"that the case proceed," and defendant then requested
rearraignment to permit pleas of nolo contendere, only to once
again plead not guilty and demand a jury.
During the first day of trial, the Commonwealth's evidence
established that Vernon Lee Jones (victim) died from "[m]ultiple
gunshot wounds with internal bleeding." Forensic examination of
1
This document was entitled "EXCULPATORY INFORMATION" by the
Commonwealth.
2
Trial was originally docketed for October 11, 1995, but
defendant failed to appear.
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the body revealed eight "separate gunshot tracks" which could be
"explained by a minimum of six shots." The medical examiner
described the wounds, which included two to the front, one to the
side, and one to the left hand, noting that "most of the gunshots
were to the back."
Several witnesses to the homicide also testified for the
Commonwealth. Shortly before the offenses, Sheldon Jones
(Sheldon) had seen defendant in the neighborhood, heard him
shout, "there go [sic] June [Vernon Jones, the victim], everybody
get back in the car," and quickly leave in an automobile.
According to Sheldon, the vehicle soon returned, "somebody jump
[sic] out [sic] the car" that "looked like" defendant, and "five
or six" gunshots sounded as Sheldon fled to a nearby residence.
Moments later, Sheldon saw the victim wounded and "laying on the
ground."
Commonwealth witness Vernon Artis (Artis) observed defendant
exit a vehicle and "point [a] gun towards Kevin [Jones]" and the
victim, both of whom were unarmed and "standing next to" a parked
car. Artis quickly "got down," heard gunshots, and watched
defendant flee, leaving the wounded victim. Kevin Jones
corroborated Artis' testimony, adding that he was "[j]ust
standing there talking" to the victim when defendant "jumped out
of the [vehicle] hatch[back] with a [sic] AK" and "shot [the
victim] several times" at a range of approximately six feet.
The Commonwealth concluded the opening day of trial with
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witness Letitia King (King). Contrary to her earlier statement
to police, King testified that, while seated in a parked car, she
saw defendant "jump out of the back" of another car, aim and
repeatedly fire "a very large gun" directly at the unarmed victim
"standing there talking" to her. She noticed "the backfire from
the gun" and detailed the victim's movements while "getting shot"
by defendant, then "about fifteen feet away." Despite the
manifest inconsistencies between King's pretrial statements to
police and her testimony, the Commonwealth did not disclose to
defendant the contents of the earlier interview, and trial
recessed for the evening. 3
When trial reconvened the following morning, defendant's
counsel advised the court that defendant wished to "withdraw his
plea [sic] of not guilty and enter a plea [sic] of no contest."
Defendant was then rearraigned and pled nolo contendere to the
indictments. Before accepting the pleas, the trial court advised
defendant that a nolo contendere plea "is the same as a guilty
plea" and constituted a waiver of his "right to defend himself"
in trial. Asked if he was "entering those pleas . . . because
[he] was guilty," defendant answered, "I think it's in my best
interest to do so." After further inquiry, the court accepted
the pleas, found defendant guilty of the offenses, and ordered a
3
Defendant does not assert that the Commonwealth
intentionally withheld such evidence. See Rule 3A:11(g) (duty to
disclose continuing); MacKenzie v. Commonwealth, 8 Va. App. 236,
243, 380 S.E.2d 176, 177 (1989) (good faith does not excuse
nondisclosure).
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presentence report.
In reviewing the presentence report, defendant first learned
of King's pretrial statements to police and moved the court,
prior to sentencing, to allow withdrawal of the nolo contendere
pleas and grant a new trial. In support of his motion, defendant
asserted that he decided upon the pleas at the conclusion of
King's testimony, arguing that the "outcome would have been
different" had he been aware of the opportunity to impeach her.
The trial court denied the motions, finding that any consequences
of "information" withheld from defendant, when considered with
the other evidence, was "harmless at most."
During the ensuing sentencing hearing, defendant testified
that he approached the victim and Kevin Jones to discuss some
"conflicts with Kevin," not to engage the victim. However,
because the victim had repeatedly robbed him at "gunpoint,"
"abducted . . ., and kidnapped" him and "threatened" his family,
defendant was "scared for [his] life when it came to" the victim
and armed himself. Defendant testified that he saw the victim
"go for [his] gun" and fired at the victim to "keep him from
shooting me." Although acting in "self defense," defendant
explained that he "pleaded no contest . . . because [he] felt
like [his] testimony alone wouldn't . . . be strong enough for a
jury after hearing all those negative false statements that the
witnesses was [sic] giving." At the conclusion of the
proceedings, the court sentenced defendant to life imprisonment
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for murder and three years for the related firearm offense.
Shortly thereafter, defendant's appellate counsel moved the
court to reconsider its rulings. Accordingly, the court
"suspended" the sentencing order and conducted a rehearing,
during which counsel proffered, without objection, that defendant
"has a substantial defense . . . of self defense" but pled nolo
contendere after concluding that his testimony could not overcome
the "false statements" of Commonwealth witnesses. 4 Defendant,
therefore, reasoned that ignorance of King's prior inconsistent
statements had resulted in uninformed and misguided pleas, to his
severe prejudice. In once again denying defendant's motions, the
court acknowledged that defendant may have established a "plea of
self defense," but, "considering the totality" of the record,
King's impeachable testimony did not sufficiently influence the
disputed pleas.
The Commonwealth concedes that the inconsistency between
King's earlier statements to police and later testimony was
exculpatory and properly subject to the discovery order. The
Commonwealth argues, however, that any error attributable to
nondisclosure had no objectively reasonable effect on defendant's
pleas and, therefore, was immaterial to the result.
II.
4
Counsel further proffered detailed evidence of the victim's
reputation for "violen[ce and] turbulen[ce]," his prior attacks
on defendant, and his movements moments before the shooting which
suggested to defendant that he "was going to a weapon that he was
known to carry."
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Code § 19.2-254 provides that the accused in a criminal
proceeding "may plead not guilty, guilty or nolo contendere" upon
arraignment for the offense "on which he will be tried." Code
§ 19.2-254. A plea of nolo contendere is neither "a confession
of guilt" nor a "declaration of innocence equivalent to a plea of
not guilty." Commonwealth v. Jackson, 255 Va. ___, ___, ___
S.E.2d ___, ___ (1998) (citation omitted). It allows an accused,
"'thinking it best . . . not to submit to trial,'" but
"'unwilling to confess the truth of the charge, [and] . . . plead
guilty,'" to "'throw[] himself on the mercy of the court . . .
without confessing or denying . . . guilt.'" Roach v.
Commonwealth, 157 Va. 954, 958, 162 S.E. 50, 51 (1932) (quoting
Honaker v. Howe, 60 Va. (19 Gratt.) 50, 53 (1869)).
"Nonetheless, by entering [the] plea . . ., the defendant
'implies a confession . . . of the truth of the charge . . .
[and] agrees that the court may consider him guilty' for the
purpose of imposing judgment and sentence." Jackson, 255 Va. at
___, ___ S.E.2d at ___ (quoting Honaker, 60 Va. (19 Gratt.) at
52). "[I]n misdemeanor and felony cases, the court [must] accept
a plea of nolo contendere," Code § 19.2-254, once satisfied "that
the plea is made voluntarily with an understanding of the nature
of the charge and the consequences of the plea." Rule 3A:8.
An accused may seek to withdraw both a plea of guilty and
nolo contendere, previously tendered and received by the court,
upon motion "made only before sentence is imposed or imposition
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of a sentence is suspended, but to correct manifest injustice,
the court within twenty-one days after entry of a final order may
set aside the judgment of conviction and permit the defendant to
withdraw his plea." Code § 19.2-296. Thus, Code § 19.2-296
treats pleas of guilty and nolo contendere alike in the context
of a motion to withdraw.
Generally, "whether or not an accused should be allowed to
withdraw a plea of [nolo contendere] for the purpose of
submitting one of not guilty is a matter that rests within the
sound discretion of the trial court." Parris v. Commonwealth,
189 Va. 321, 324, 52 S.E.2d 872, 873 (1949); Hoverter v.
Commonwealth, 23 Va. App. 454, 463-64, 477 S.E.2d 771, 775
(1996).
"As in other cases of discretionary
power, no general rule can be laid down as to
when a defendant will be permitted to
withdraw his plea. The decision in each case
must depend . . . on the particular . . .
circumstances. Generally, however, it may be
said that the withdrawal of a plea of [nolo
contendere] should not be denied . . . where
it is in the least evident that the ends of
justice will be subserved by permitting not
guilty to be pleaded in its place."
Parris, 189 Va. at 325, 52 S.E.2d at 874 (emphasis added)
(quoting 14 Am.Jur. Criminal Law § 287); Manning v. Commonwealth,
22 Va. App. 252, 254, 468 S.E.2d 705, 706 (1996).
Resolution of this issue by the trial court "requires an
examination of the circumstances confronting [the] accused
immediately prior to and at the time he pleaded to the charge."
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Id. at 322, 52 S.E.2d at 872.
"The least surprise or influence causing a
defendant to plead [nolo contendere] when he
has any defense at all should be sufficient
grounds for permitting a change of plea from
[nolo contendere] to not guilty. Leave
should ordinarily be given to withdraw [the]
plea . . . if . . . entered by mistake or
under a misconception of the nature of the
charge; through a misunderstanding as to its
effect; through fear, fraud, or official
misrepresentation; . . . made involuntarily
for any reason; or even where it was entered
inadvisedly, if any reasonable ground is
offered for going to the jury." 5
Id. at 325, 52 S.E.2d at 874 (quoting 14 Am.Jur. Criminal Law
§ 287) (emphasis added).
It is well established that evidence which impeaches the
credibility of a witness is exculpatory, Robinson v.
Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986), and
suppression of exculpatory evidence, material to either guilt or
punishment, violates due process. Brady v. Maryland, 373 U.S.
83, 87 (1963); Stover v. Commonwealth, 211 Va. 789, 795, 180
S.E.2d 504, 509 (1971). "[E]vidence is material, '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.'" Hughes v. Commonwealth, 18 Va. App. 510, 525, 446
S.E.2d 451, 460-61 (1994) (en banc) (citations omitted). "'"A
'reasonable probability' is a probability sufficient to undermine
confidence in the outcome [of the trial]."'" Knight v.
5
Defendant argues that his motion to withdraw the plea finds
support in every circumstance recognized in Parris.
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Commonwealth, 18 Va. App. 207, 212, 443 S.E.2d 165, 168 (1994)
(citations omitted). To prevail on appeal, defendant must
"demonstrate that the undisclosed evidence was [both] exculpatory
and material" beyond mere speculation or possibility. Goins v.
Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124 (1996); see
Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (accused
must establish likelihood of different plea had exculpatory
evidence been available).
Thus, defendant was entitled to withdraw the disputed plea
if the record established "any defense at all" to the
indictments, and it was reasonably probable that nondisclosure of
the exculpatory impeachment evidence had the "least . . .
influence" on such plea. This highly remedial principle
recognizes that a plea of nolo contendere constitutes a waiver of
trial, together with "many important constitutional rights,"
including "the privilege against self-incrimination, the right to
a trial by jury, the right to confront witnesses, the right to
demand that the prosecution prove its case beyond a reasonable
doubt and the right to object to illegally obtained evidence."
Dowell v. Commonwealth, 12 Va. App. 1145, 1148-49, 408 S.E.2d
263, 265 (1991), aff'd en banc, 14 Va. App. 58, 414 S.E.2d 440
(1992). Such fundamental guarantees may be abandoned only by an
accused fully advised of all relevant considerations, thereby
ensuring the exercise of informed judgment to a just result.
III.
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Guided by Parris, we review the trial court's decision in
this instance for abuse of discretion, a "strict legal term"
"synonymous with a failure to exercise a sound, reasonable and
legal discretion," a "clearly erroneous conclusion and judgment
-- one . . . clearly against logic[,] . . . [and] the reasonable
and probable deductions to be drawn from the facts disclosed."
Black's Law Dictionary 10 (6th ed. 1990 (citations omitted)).
"'[T]he discretion of the able, learned and experienced trial
judge . . . will not be interfered with upon review of this
Court, unless some injustice has been done.'" Bell v. Kirby, 226
Va. 641, 643, 311 S.E.2d 799, 800 (1984) (quoting Temple v.
Moses, 175 Va. 320, 337, 8 S.E.2d 262, 269 (1940)). Thus, we
should reverse only upon "clear evidence that [the decision] was
not judicially sound" and not simply to substitute our
"discretion for that rendered below." Nat'l Linen Serv. v.
Parker, 21 Va. App. 8, 19, 461 S.E.2d 404, 410 (1995).
Following defendant's proffer, together with a thorough
argument of his counsel, which included controlling legal
principles, the court correctly considered the merits of his
motions under the circumstances prevailing at the time of the
disputed plea and recognized that defendant could conceivably
prevail on a "plea of self defense." However, when viewed with
the entire record, the court was unconvinced of the reasonable
probability that nondisclosure of the exculpatory evidence had
the requisite "least . . . influence" on the result in issue,
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defendant's pleas of nolo contendere. This conclusion was not
clearly erroneous, without support in the evidence, or judicially
unsound, and visited no injustice on defendant.
Through the unimpeached testimony of three eyewitnesses,
excluding King, the Commonwealth established that defendant
killed the unarmed victim, without provocation, willfully,
deliberately and with premeditation, by repeatedly shooting him
at close range. Faced with such overwhelming evidence of guilt,
nothing in the record, save defendant's post-trial assertions,
suggests a reasonable probability that nondisclosure of King's
pretrial statements had even the "least" influence on his
decision to plead nolo contendere. Thus, the record does not
demonstrate that such exculpatory evidence was material to
defendant's pleas, and the trial court correctly overruled his
motions.
Accordingly, the court did not abuse its sound discretion,
and we affirm the convictions.
Affirmed.
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