COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
MARCELLA DENISE BROWN
MEMORANDUM OPINION * BY
v. Record No. 1574-01-4 JUDGE RICHARD S. BRAY
AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
Sterling Park Sandow (Andrea Moseley,
Assistant Public Defender; Office of the
Public Defender, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Marcella Denise Brown (defendant) was convicted in a bench
trial for possession of a firearm by a convicted felon in
violation of Code § 18.2-308.2. On appeal, she complains the
trial court erroneously admitted "scientific" evidence that was
not disclosed pursuant to her pretrial "written request for
discovery under Rule 3A:11." Absent such testimony, defendant
challenges the sufficiency of the evidence to prove she possessed
a "firearm" within the intendment of Code § 18.2-308.2. Finding
no error, we affirm the conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
On the evening of November 21, 2000, defendant, a convicted
felon, "highly intoxicated," "drunk," "knocked" at Angela
Anderson's door. When Anderson appeared at the door, defendant
asked "to speak to Darnell," "a young lady" inside the residence.
As Anderson turned and summoned Darnell, she noticed defendant
"pointing" "a long narrow object" at her and "pushed [defendant]
back," "shut the door" and telephoned police.
Alexandria Police Officer J. Pohlmeyer responded to
Anderson's report of "a woman with a gun, who was struggling with
and threatening to shoot people off site." Upon arrival, Anderson
explained defendant's conduct to Pohlmeyer, and he advised police
to be on the "lookout" for a "[b]lack female, wearing a red coat."
In response, Officer Mayfield "moved into the area" and soon
located defendant walking with Earl Sitton, "[a]bout three blocks"
from the Anderson residence. Acting on Sitton's directions,
Mayfield, accompanied by Investigator McGowan, located a "Baretta
22 Automatic," exhibit No. 2, together with a "magazine," "full to
capacity," exhibit No. 3, on the ground within a block of
defendant and Sitton. Defendant was subsequently arrested for
feloniously possessing the weapon, the instant offense.
- 2 -
Prior to trial, defendant moved for discovery pursuant to
Rule 3A:11, specifically requesting "[a]ny written reports of
fingerprint analyses, handwriting analyses, urine and breath
tests, [and] other scientific reports." (Emphasis added). The
Commonwealth thereafter provided defendant with no "written
reports," but, by letter dated February 15, 2001, the prosecutor
advised counsel that "[i]tems of physical evidence which [he]
intended to introduce at trial as exhibits . . . are available for
inspection in [his] office during normal business hours upon
reasonable notice."
At trial, defendant objected when the Commonwealth asked
Officer Pohlmeyer to relate his findings upon "test firing" the
offending weapon prior to trial, complaining he had "not been
provided in discovery with any expert testimony or written or oral
reports about any ballistics tests." The Commonwealth countered,
"There are no reports, there [is] no expert testimony," explaining
"the only testimony you are about to hear is that the officer put
a bullet in [the gun], shot it and it worked. It's not ballistic
testimony, it's not expert testimony."
Pursuing the issue, defendant was permitted to inquire of
Pohlmeyer, "Did you make any notes about the procedure in which
you proceeded in doing this?" Pohlmeyer then referenced "a note
in [his] notebook," which recorded only "the time" he fired the
weapon. Defendant renewed her objection to Pohlmeyer's evidence,
contending the note constituted a written report not provided in
- 3 -
response to discovery. The court overruled the objection and
permitted the testimony in issue.
Pohlmeyer then recounted that, on the morning of trial, he
"took [the gun] to the fire range," "inserted one round that was
recovered into the magazine," "inserted the magazine into the
weapon," "chambered that round," and "fired the weapon." He noted
"the round exited the barrel and the casing was extracted and fell
on the ground."
At the close of the Commonwealth's case and, again, after
resting without presenting evidence, defendant moved to strike,
arguing, inter alia, the Commonwealth failed to prove "beyond a
reasonable doubt" the "gun does, in fact, expel a projectile."
The trial court denied defendant's motions and convicted her of
the instant offense.
II.
On appeal, defendant first contends the trial judge
improperly allowed Officer Pohlmeyer's testimony notwithstanding
the Commonwealth's failure to disclose attendant "written
scientific reports," in violation of her right to discovery. We
disagree.
"'[T]here is no general constitutional right to discovery
in a criminal case.' Rule 3A:11 provides for limited pretrial
discovery by a defendant in a felony case." Ramirez v.
Commonwealth, 20 Va. App. 292, 295, 456 S.E.2d 531, 532 (1995)
- 4 -
(citation omitted). Rule 3A:11(b)(1) directs, in pertinent
part, that
[u]pon written motion of an accused a court
shall order the Commonwealth's attorney to
permit the accused to inspect and copy or
photograph any relevant . . . written
reports of autopsies, ballistic tests,
fingerprint analyses, handwriting analyses,
blood, urine and breath tests, other
scientific reports . . . that are known by
the Commonwealth's attorney to be within the
possession, custody or control of the
Commonwealth.
Id. (emphasis added).
Here, however, Pohlmeyer made no "written scientific report."
He simply test fired the offending weapon, recording the time in a
"notebook," clearly not a written report of a ballistics test
embraced either by defendant's discovery motion or Rule 3A:11.
Accordingly, the Commonwealth had no duty to disclose such
evidence to defendant in discovery, and the trial court properly
permitted Pohlmeyer to relate his findings.
III.
Defendant's challenge to the sufficiency of the evidence to
support the conviction is likewise without merit. Recently, in
Armstrong v. Commonwealth, 263 Va. 573, 562 S.E.2d 139 (2002),
the Supreme Court of Virginia instructed:
[I]n order to sustain a conviction for
possessing a firearm in violation of Code
§ 18.2-308.2, the evidence need show only
that a person subject to the provisions of
that statute possessed an instrument which
was designed, made, and intended to expel a
projectile by means of an explosion. It is
- 5 -
not necessary that the Commonwealth prove
the instrument was "operable," "capable" of
being fired, or had the "actual capacity to
do serious harm."
Id. at 584, 562 S.E.2d at 145 (footnote omitted).
Nevertheless, Pohlmeyer's testimony clearly established
that the weapon, before the court as exhibit No. 2, was both an
"instrument . . . designed, made, and intended to expel a
projectile by means of an explosion," a "firearm" contemplated
by Code § 18.2-308.2, and operational. Moreover, other
witnesses variously described it as a "gun," a "Baretta 22
Automatic," and "Blude semiautomatic handgun." Such evidence
established defendant's guilt beyond a reasonable doubt.
Accordingly, we affirm the conviction.
Affirmed.
- 6 -
Marcella Denise Brown v. Commonwealth
Combined Opinion