COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
FLOYD MILES
MEMORANDUM OPINION * BY
v. Record No. 0692-00-4 JUDGE LARRY G. ELDER
APRIL 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on brief), for
appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Floyd Miles (appellant) appeals from his jury trial
convictions for breaking and entering, rape, forcible sodomy and
animate object penetration. On appeal, he contends the trial
court erroneously (1) refused to admit evidence from unrelated
cases of an alleged pattern by the Commonwealth of failing to
comply with discovery orders in order to cause a mistrial; (2)
admitted the expert testimony of a sexual assault nurse that the
victim's injuries were inconsistent with consensual intercourse;
and (3) refused to give appellant's proffered jury instruction
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
on the abolition of parole, even after the jury inquired
specifically about the computation of appellant's sentence. We
hold the trial court's error, if any, in excluding evidence of
alleged discovery violations in other cases does not provide a
basis for reversal because appellant has established no
prejudice. We also hold that the testimony that the victim's
injuries were inconsistent with consensual intercourse did not
constitute impermissible testimony on the ultimate issue. We
conclude, however, as the Commonwealth concedes, that the court
erroneously refused to instruct the jury on the abolition of
parole. Therefore, we affirm appellant's convictions but remand
for resentencing in compliance with Fishback v. Commonwealth,
260 Va. 104, 532 S.E.2d 629 (2000).
I.
A.
EVIDENCE OF ALLEGED DISCOVERY VIOLATIONS IN OTHER CASES
"Evidence is admissible if it is both relevant and
material." Evans-Smith v. Commonwealth, 5 Va. App. 188, 196,
361 S.E.2d 436, 441 (1987). "Evidence is material if it relates
to a matter properly at issue" and "'relevant if it tends to
establish the proposition for which it is offered.'" Id.
(quoting Charles E. Friend, The Law of Evidence in Virginia
§ 134 (2d ed. 1983)). "The admissibility of evidence is within
the broad discretion of the trial court, and a ruling will not
be disturbed on appeal in the absence of an abuse of
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discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371
S.E.2d 838, 842 (1988).
When the Commonwealth fails "to adequately and fully
provide discovery . . . under Rule 3A:11, . . . the court may
order the Commonwealth to permit the discovery or inspection,
grant a continuance, or prohibit the Commonwealth from
introducing the evidence not disclosed, or the court may enter
such other order as it deems just under the circumstances."
Code § 19.2-265.4 (emphasis added).
[W]hen it appears to a trial court that a
party has deliberately attempted to
introduce evidence which it knows is
improper or inadmissible, either because it
was not disclosed during discovery or
because it otherwise is inadmissible under
rules of evidence, it is the duty and
responsibility of the court to deter such
inappropriate tactics by taking such action,
imposing such sanctions, or granting such
relief as it deems appropriate.
Stotler v. Commonwealth, 2 Va. App. 481, 484, 346 S.E.2d 39, 41
(1986). However, when an accused alleging a discovery violation
"shows no prejudice, he can claim no [reversible] error."
Hughes v. Commonwealth, 18 Va. App. 510, 529, 446 S.E.2d 451,
463 (1994) (en banc) (citing Davis v. Commonwealth, 230 Va. 201,
205, 335 S.E.2d 375, 378 (1985)). Thus, a defendant who alleges
the remedy fashioned for any discovery violation is insufficient
also must show prejudice in order to claim entitlement to
relief.
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Here, we assume without deciding that evidence of the
Commonwealth's alleged discovery violations in unrelated cases
was relevant to the trial court's determination of the
appropriate sanction, if any, to be imposed for the challenged
discovery violation in this case--the Commonwealth's failure
timely to provide appellant with a copy of the letter revealing
the results of the herpes test performed on appellant's blood. 1
We also assume without deciding that the trial court abused its
discretion in failing to consider that evidence. However, even
assuming error in the exclusion of such evidence, the record
fails to reveal any prejudice to appellant as a result, and
thus, any such error does not require reversal.
The record shows the trial court granted appellant's
request for a mistrial because it believed the late disclosure
of the herpes blood test results could not be remedied in any
other fashion once the jury became aware of the existence of a
second vial of blood. In response to appellant's first motion
to dismiss, which was based on an alleged double jeopardy
violation, the court noted the herpes test results were not
exculpatory and fashioned a remedy less drastic than dismissal
1
Although appellant's second motion to dismiss alleged
numerous other discovery violations in this case, the issue
presented to us by appellant and on which we granted this appeal
relates only to "the conduct that caused a mistrial in this
case." The conduct which caused the mistrial was the
Commonwealth's questioning of Investigator Grigsby about the
second vial of blood after failing to disclose the herpes test
results during discovery.
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of the indictment: It precluded the Commonwealth from offering
into evidence the results of the late-disclosed herpes test or
any new test. In ruling on appellant's second motion to
dismiss, which was based on numerous alleged discovery
violations, the court noted likely violations in the form of the
Commonwealth's unexplained delay in producing certain "Brady
materials," but even as to those likely violations, the court
concluded appellant had "ample time" to make use of them and
that it was inappropriate "to sanction [the Commonwealth] by
having a potential criminal go free." The only claim of
prejudice appellant made in association with the discovery
violation which necessitated the mistrial was that it extended
the length of his pretrial incarceration. However, he did not
assert a speedy trial claim, and he made no allegation that the
late disclosure of the herpes test and resulting mistrial
rendered unfair the trial in which he ultimately was convicted.
The record demonstrates, therefore, that the trial court
fashioned a remedy for the challenged discovery violation,
non-disclosure of the inculpatory herpes test results, which
preserved appellant's right to a fair trial and that, even as to
late-produced exculpatory evidence, the trial court thought the
remedy of dismissal too extreme. Thus, because appellant failed
to show any prejudice from the late disclosure of the herpes
test results, we affirm the trial court's denial of his motion
to dismiss the indictment.
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B.
TESTIMONY OF SEXUAL ASSAULT NURSE EXAMINER
Appellant contends the testimony of Nurse Suzanne Brown
that the victim's injuries were inconsistent with consensual
intercourse constituted improper testimony on an ultimate issue.
For the reasons set forth in Hussen v. Commonwealth, 257 Va. 93,
511 S.E.2d 106 (1999), and Velazquez v. Commonwealth, ___ Va.
App. ___, ___ S.E.2d ___ (2001), we disagree.
As we held in Velazquez, relying on Hussen, the statement
that an alleged rape victim's injuries are "'inconsistent with
consensual intercourse' . . . is 'not a comment on one of the
ultimate issues of fact to be determined by the jury, that is,
whether the defendant's conduct was against the victim's will."
Velazquez, ___ Va. App. at ___, ___ S.E.2d at ___ (quoting
Hussen, 257 Va. at 99, 511 S.E.2d at 109). Here, as in both
Velazquez and Hussen, the expert witness' testimony "dealt
[only] with consistencies and inconsistencies. [The expert] did
not testify that, in her opinion, [the defendant] engaged in
sexual intercourse with [the victim] against [the victim's]
will, the ultimate issue in the case." Velazquez, ___ Va. App.
at ___, ___ S.E.2d at ___. Thus, the trial court did not err in
admitting the testimony.
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C.
PAROLE INSTRUCTION
Appellant contends he is entitled to resentencing on all
offenses because the trial court erroneously refused to instruct
the jury on the abolition of parole in violation of the holding
subsequently rendered in Fishback, 260 Va. 104, 532 S.E.2d 629.
The Commonwealth concedes that Fishback entitles appellant to a
remand for resentencing, and we agree.
Here, as in Fishback, appellant proffered an instruction on
parole, which the trial court refused to give. See id. at 109,
532 S.E.2d at 630. The court then failed to answer the jury's
specific question about the method of computing appellant's
sentence. See id. at 109-10, 532 S.E.2d at 630-31. Because
appellant committed the charged offenses on or after January 1,
1995, and because his case was not yet final when Fishback was
decided, he is entitled to a new sentencing hearing before a new
jury. See id. at 115-17, 532 S.E.2d at 634-35.
II.
For these reasons, we hold that any error resulting from
the trial court's refusal to admit evidence of other alleged
discovery violations by the Commonwealth did not constitute
reversible error because appellant has not proved prejudice. We
also hold that the court's admission of testimony that the
victim's injuries were inconsistent with consensual intercourse
did not constitute impermissible testimony on an ultimate issue
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of fact. However, we conclude that the trial court committed
reversible error in refusing to instruct the jury on the
abolition of parole and its impact on appellant's sentence.
Therefore, we affirm appellant's underlying convictions but
remand for resentencing.
Affirmed on the merits
and reversed and remanded
for resentencing.
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