COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
MICHAEL ANDREA JONES
MEMORANDUM OPINION * BY
v. Record No. 0567-98-1 JUDGE JERE M. H. WILLIS, JR.
JUNE 8, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
S. Bernard Goodwyn, Judge
Randolph D. Stowe (Randolph D. Stowe, P.C.,
on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his convictions of two counts of robbery, in
violation of Code § 18.2-58; two counts of use of a firearm in
the commission of the robbery, in violation of Code § 18.2-53.1;
and one count of burglary, in violation of Code § 18.2-90,
Michael Andrea Jones contends that the trial court erred (1) in
denying his motion for a mistrial because the Commonwealth
failed to provide material exculpatory evidence pursuant to a
court order, and (2) in refusing to dismiss the charges based on
the inherent incredibility of the victims. We find no
reversible error and affirm the judgment of the trial court.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
"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).
On June 7, 1997, at about 7:00 p.m., Shelly
Highter-Westbrooks and Sherry Foreman were at
Highter-Westbrooks' apartment with two friends and
Highter-Westbrooks' two children. Highter-Westbrooks was in the
kitchen, having just brought in her groceries. Jones suddenly
entered the apartment through the screen door, pulled a silver
revolver from his red, white, and blue jacket, and threatened
Highter-Westbrooks and her guests. Upon Jones' demand,
Highter-Westbrooks pulled $216 from her pocket and threw it on
the table. Jones grabbed that money and Foreman's purse and
left.
The jury convicted Jones of two counts of robbery, in
violation of Code § 18.2-58; two counts of use of a firearm in
the commission of a robbery, in violation of Code § 18.2-53.1;
and one count of burglary, in violation of Code § 18.2-90. He
was sentenced to thirty-three years imprisonment.
I. EXCULPATORY EVIDENCE
Jones moved for a mistrial on the ground that the
Commonwealth had failed to disclose material, exculpatory
evidence, in violation of a pretrial discovery order. After the
trial, defense counsel discovered that Officer Thomas Foster,
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who investigated the incident, had noted that "[b]oth victims
advised that they knew the suspect because he hangs out in [the
apartment complex] frequently." Jones argues that this evidence
was material and exculpatory because, at trial,
Highter-Westbrooks testified that she did not know Jones before
the incident.
To warrant a new trial, Jones must establish that the
Commonwealth failed to disclose "evidence favorable to [him]
that [was] material to either guilt or punishment." Hughes v.
Commonwealth, 18 Va. App. 510, 525, 446 S.E.2d 451, 460 (1994)
(citation omitted). Such
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." . . . "[T]he defendant has the
burden of demonstrating that the
[Commonwealth] withheld favorable evidence
and . . . that defendant would have obtained
a different result had he use of the
evidence."
Id. at 525-26, 446 S.E.2d at 461 (citations omitted).
At the hearing on the mistrial motion, Officer Foster
explained that he had not quoted either victim in his notes, but
rather had summarized what they told him. He testified that
both women were "hysterical and crying." He further testified
that, "[the victims] didn't say they know him. They conveyed to
me in the description that they were giving to me and that they
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had seen him before and I used the word that they knew him in
the context that they have seen him before in the complex
. . . ." Officer Foster explained that the basis for his notes
was Foreman's account, and it was unclear whether
Highter-Westbrooks had simply agreed with Foreman. Considering
this testimony, we find no reversible error in the trial court's
decision that non-disclosure of the notation did not require a
new trial.
Jones argues that had he possessed the noted information at
trial, he could have impeached Highter-Westbrooks' credibility
and that denial of this information denied him due process. He
testified that he had a sexual relationship with
Highter-Westbrooks before the incident and that they had argued
about his involvement with another woman. At trial, however,
both Highter-Westbrooks and Foreman were cross-examined
extensively about inconsistencies between their trial testimony
and their testimony at the pretrial hearing. Even if Officer
Foster's notes had contradicted Highter-Westbrooks' testimony,
"[n]ondisclosure of cumulative evidence does not violate due
process of law." Lemons v. Commonwealth, 13 Va. App. 668, 672,
414 S.E.2d 842, 845 (1992) (citation omitted).
II. SUFFICIENCY OF THE EVIDENCE
Jones contends that the evidence is insufficient to sustain
his convictions because Highter-Westbrooks' and Foreman's
testimony was inherently incredible as a matter of law. We
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disagree. Both women were cross-examined extensively about
inconsistencies in their pretrial statements and their trial
testimony. Highter-Westbrooks was questioned about her alleged
prior relationship with Jones. She maintained that she did not
know him and had had no relationship with him.
The fact a witness makes inconsistent
statements in regards to the subject matter
under investigation does not render [her]
testimony nugatory or unworthy of belief.
It is the province of the trier of facts
- jury or judge – ”to pass upon such
inconsistent statements and give or withhold
their assent to the truthfulness of the
particular statement."
Swanson v. Commonwealth, 8 Va. App. 376, 378, 382 S.E.2d 258,
259 (1989) (citation omitted).
Determining the credibility of witnesses who
give conflicting accounts is within the
exclusive province of the jury, which has
the unique opportunity to observe the
demeanor of the witnesses as they testify.
. . . The jury's finding that a particular
witness was credible will not be reversed on
appeal unless plainly wrong or without
evidence to support it.
Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479
(1993) (citations omitted). Any inconsistencies in
Highter-Westbrooks' or Foreman's testimony were addressed fully
through cross-examination. We find no plain error in the jury's
determination of their credibility.
The judgment of the trial court is affirmed.
Affirmed.
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