COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia
KENNETH EDWARD BROWN
MEMORANDUM OPINION * BY
v. Record No. 0695-98-3 JUDGE SAM W. COLEMAN III
JUNE 15, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
Charles M. Stone, Judge
James R. McGarry (Young, Haskins, Mann,
Gregory & Smith, P.C., on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Kenneth Edward Brown was convicted by a jury of aggravated
malicious wounding and robbery. On appeal, Brown contends that
the trial court erred by denying his motions (1) for a new trial
on the ground that the Commonwealth violated the court’s discovery
order by withholding from him the fact that a Commonwealth’s
witness had a felony conviction, (2) for a mistrial because the
Commonwealth introduced inadmissible evidence that he used
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
cocaine, and (3) to strike the evidence as insufficient to support
the robbery conviction. Finding no error, we affirm the
convictions.
BACKGROUND
Grogan’s Grocery is a country store located in Henry County
owned and operated by Arnie Grogan. During the early morning
before the store opened, Brown knocked on the front door under the
pretense of needing to purchase kerosene. Grogan opened the store
for Brown and as Grogan turned around, Brown struck him on the
head until he became unconscious.
Grogan’s billfold, which had been in the cash register before
Brown entered the store, contained approximately $1,000 in $100
bills. After Grogan regained consciousness, the billfold was
missing.
At trial, Grogan positively identified Brown as his
assailant. On cross-examination, Grogan admitted that he was not
wearing glasses on the morning of the attack, that he only saw the
assailant for a “short time,” and that he had difficulty
identifying Brown as his assailant in a previous identification.
Nevertheless, he testified that he was “sure” about the
identification.
The Commonwealth also proved that Brown’s vehicle was at
Grogan’s Grocery on the morning when the crime occurred. Jason
Dodd testified that on the morning of the robbery he saw a vehicle
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in the middle of the road near Grogan’s store. In the vehicle was
a man whom Dodd identified as Brown. Additionally, Dodd
identified pictures of Brown’s car as the vehicle he saw that
morning. 1
John Wilson, who also drove by Grogan’s store that morning,
testified that he saw a car parked there that had no license
plates, which he later identified from the pictures as Brown’s
car. Wilson pointed out that he recognized the rust spot on the
fender. After trial, but before sentencing, the Commonwealth
informed Brown that Wilson had been convicted in 1983 of
involuntary manslaughter, a felony.
The evidence further proved that on April 26, Jerry Morgan,
Brown’s landlord, had notified Brown that he and his family were
to vacate their residence on May 26 for nonpayment of rent.
Grogan’s store was robbed on the morning of May 25. Between 7:00
and 7:30 on the morning of May 25, Morgan drove by Brown’s
residence and noticed that his car was not there. Morgan
testified that before the robbery, Brown had no money.
1
Brown asserts that his counsel impeached Dodd’s testimony.
On cross-examination, Dodd confirmed that after the robbery he
told investigators he remembered a hole in the car’s gas tank
like the hole in the defendant’s car. Assuming that Dodd was
referring to a hole in the gas cap cover, counsel for Brown
asked Dodd if he had a view of that side of the vehicle on the
morning of the robbery. Dodd admitted that he had no view of
that side of the vehicle, but clarified that he was referring to
the rusted-out hole in the vehicle’s fender rather than the hole
in the gas cap.
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However, Renee Martin testified that on May 26 at 1:30 p.m.,
Brown and his wife rented a trailer from her and for a security
deposit and one-week’s rent Brown’s wife paid $350 with three $100
bills and one fifty dollar bill. Then, on June 8, she paid $250
in rent with two $100 bills and other denominations.
Jesse Norris, a convicted felon who was in jail with the
defendant after the robbery, testified that Brown admitted to him
that he committed the robbery. Brown told Norris that he hit
Grogan with a tire iron, took his wallet, and left the store.
Brown also said that as he turned his car around, several people
drove past him. He noted that he had removed the tags from the
vehicle to avoid identification and had thrown the tire iron into
the water. Brown had asked Norris whether stains and fingerprints
could be taken from a tire iron that had been under water. Brown
also asked Norris whether he knew how to remove a distinctive rust
spot from a vehicle.
During rebuttal, Brown’s wife testified that “things weren’t
going very well” regarding their marriage. On cross-examination
the Commonwealth asked her whether she ever had “any problem with
what [Brown] did with the money that he did have.” When she
responded that she did not, the Commonwealth asked whether she
recalled making a statement to Renee Martin regarding her concerns
about how her husband spent money. When she replied that she did
not recall, the Commonwealth asked: “Did you tell her [Brown] was
spending the money on cocaine?” Over Brown’s objection, and
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pursuant to the trial court’s ruling, the Commonwealth re-phrased
the question: “Did you ever tell Renee Martin that your husband,
Kenny, was spending money, family money, on cocaine?” Brown’s
wife did not deny the statement but could not recall having ever
made it. The trial court cautioned the jury not to consider the
statement as evidence of drug use but only with regard to its
impact, if any, on the witness’ credibility. The Commonwealth did
not thereafter introduce evidence from Renee Martin that Brown’s
wife had stated that Brown was spending family money on cocaine.
ANALYSIS
Failure to Disclose Exculpatory Evidence
“[S]uppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Brady v. Maryland,
373 U.S. 83, 87 (1963). “[A] person convicted of a felony . . .
shall not be incompetent to testify, but the fact of conviction
may be shown in evidence to affect his credit.” Able v.
Commonwealth, 16 Va. App. 542, 546, 431 S.E.2d 337, 339 (1993)
(quoting Code § 19.2-269). “Favorable evidence 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. A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome.’” Soering v.
Deeds, 255 Va. 457, 464, 499 S.E.2d 514, 517 (1998) (quoting
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United States v. Bagley, 473 U.S. 667, 682 (1985)). Therefore,
Brown “must show that when the case is evaluated in the context of
the entire record, including the omitted evidence, a jury would
have entertained a reasonable doubt” as to Brown’s guilt. Id.
The Commonwealth violated the court’s discovery order by
failing to reveal Wilson’s prior convictions. Had the
Commonwealth revealed Wilson’s conviction for involuntary
manslaughter, Brown could have impeached Wilson’s credibility with
that information. However, we find that there is no reasonable
probability that had the conviction been disclosed, the jury would
have come to a different conclusion. Therefore, the trial court
did not err in denying the motion for a new trial.
Wilson’s testimony that he saw Brown’s car at Grogan’s store
on the morning of the robbery was circumstantial evidence which
corroborated the other overwhelming evidence of Brown’s guilt.
Moreover, the testimony was cumulative of Dodd’s testimony who
also identified Brown’s vehicle. Furthermore, Wilson’s
identification of Brown’s car was much less incriminating than
Grogan’s and Dodd’s testimony identifying Brown. Additional
testimony made the evidence of guilt overwhelming: Norris
testified that Brown confessed to him; Moore testified that prior
to the robbery Brown had no money; and Martin testified that after
the robbery Brown’s wife had a large sum of cash in $100 bills,
the same denomination taken with Grogan’s billfold. Thus, absent
Wilson’s testimony, we find the Commonwealth’s evidence of Brown’s
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guilt to be overwhelming on both charges. Accordingly, we find
that the trial court did not err in denying Brown’s motion for a
new trial.
Prior Inconsistent Statement
“On appeal[,] the denial of a motion for a mistrial will not
be overruled unless there exists a manifest probability that the
denial of a mistrial was prejudicial.” Harward v. Commonwealth,
5 Va. App. 468, 478, 364 S.E.2d 511, 516 (1988). “If a witness
gives testimony that is inconsistent with a prior statement, or
testifies that he does not recall making the prior statement, a
sufficient foundation for impeachment has been laid, and opposing
counsel may cross-examine the witness as to the inconsistency.”
Smith v. Commonwealth, 15 Va. App. 507, 511, 425 S.E.2d 95, 98
(1992).
Evidence establishing that the Browns were in pressing need
of money was relevant to prove that Kenneth Edward Brown had a
motive to commit the crimes. The Commonwealth introduced evidence
showing that the Browns lacked sufficient financial resources to
pay their rent prior to the robbery. The defendant offered his
wife’s testimony in rebuttal to prove that despite some financial
difficulty, they had sufficient income prior to the robbery. In
her rebuttal testimony, Paula Brown accounted for the money that
the Browns spent immediately after the robbery and testified that
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the money was under her control prior to and during the time when
the Commonwealth alleged defendant obtained the money by robbing
Grogan’s store.
In cross-examining Paula Brown, the Commonwealth asked her
whether she had problems with the way her husband spent money. In
response, she testified that she had no complaints regarding how
her husband spent their money. The Commonwealth then attempted to
impeach her by asking, “Did you ever tell Renee Martin that your
husband, Kenny, was spending . . . family money, on cocaine?”
By asking this question, the Commonwealth sought to elicit
testimony tending to impeach Paula Brown in two ways. First, the
Commonwealth sought to refute the substance of her prior testimony
by having her acknowledge that her husband was financially
irresponsible and had depleted family resources. Second, the
Commonwealth sought to impeach her credibility as a witness by
proving that she had made a prior statement inconsistent with her
testimony under oath.
The Commonwealth’s question called for information relevant
to establish the lack of funds as a motive to commit the crimes.
However, in order for the trial court to determine whether the
question was proper, the trial court had to weigh the probative
value of the evidence against its prejudicial impact. See Cumbee
v. Commonwealth, 219 Va. 1132, 1137-38, 254 S.E.2d 112, 116
(1979).
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Clearly, the question had a prejudicial effect in that it
implied that Brown used cocaine. Here, the trial court had no
opportunity to weigh the probative value against the prejudicial
effect because the Commonwealth had asked the question in the
jury’s presence. The trial court, apparently assuming that Paula
Brown would admit having made the statement, admonished the jury
only to consider the fact that she may have made the statement to
the extent that it impeached her testimony and credibility. The
judge instructed the jury not to consider her statement as
evidence of Brown’s drug use and in doing so, the judge limited
the question’s prejudicial effect. A jury is presumed to follow a
judge’s instruction regarding the limitation placed on a specific
piece of evidence, see Lawson v. Commonwealth, 13 Va. App. 109,
112, 409 S.E.2d 466, 467 (1991), and nothing in the record rebuts
the presumption that the jury followed the judge’s admonition.
Additionally, Paula Brown did not acknowledge having made the
prior statement; she replied instead, that she did not recall
having made the statement. Although the question called for a
potentially prejudicial response, the response was not
prejudicial, and the Commonwealth never introduced the allegedly
prior inconsistent statement. Thus, assuming without deciding
that the question was more prejudicial than probative and should
have been disallowed, the trial judge’s procedure for handling the
question was nevertheless harmless. Because the evidence of guilt
was overwhelming, and the trial court instructed the jury to
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disregard any prejudicial impact from the question, we conclude
that the jury was not affected by the question. Therefore, we
cannot say that there is a manifest probability that the denial of
appellant’s motion for a mistrial was prejudicial.
Sufficiency
“On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.” Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
As noted, we find the Commonwealth’s evidence was
overwhelming, thus, it was sufficient to convict Brown of
malicious wounding and robbery. Grogan identified Brown as the
assailant, and two other witnesses placed Brown’s vehicle at the
crime scene. Grogan testified that when he regained
consciousness, his wallet containing approximately ten $100 bills
was missing. The evidence showed that Brown was experiencing
financial difficulty, that the crime occurred the day before he
and his family had to vacate their leased residence for
non-payment of rent, and that on the afternoon after the robbery
the Browns entered into a new lease paying the security deposit
and one-week’s rent in $100 bills. While in jail, Brown admitted
to Norris that he struck Grogan with a tire iron and stole
Grogan’s billfold.
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At trial, Brown denied guilt and produced evidence to impeach
the credibility of Grogan, Wilson, 2 Dodd, and Norris. However,
“[t]he weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact
finder must decide.” Bridgeman v. Commonwealth, 3 Va. App. 523,
528, 351 S.E.2d 598, 601 (1986). The evidence is not inherently
incredible and is sufficient to support the convictions.
In conclusion, we find that the Commonwealth’s failure to
disclose Wilson’s conviction record was not material to the jury’s
conviction, that the trial court did not err by allowing the
Commonwealth to question Paula Brown regarding her prior
inconsistent statement, and that the evidence was sufficient to
support the convictions. Accordingly we affirm the convictions.
Affirmed.
2
On appeal, Brown asserts that Wilson’s evidence was
unimpeached. However, on cross-examination, he admitted that he
did not see the car for very long, that he was really only
concerned with the missing tags, that he did not pay attention
to the make or model of the car, that he did not remember
whether the car had a roof rack, and that the allegedly
identifying rust was not an uncommon feature of cars in the
area.
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