COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia
DWAYNE DEVIN ROARK, S/K/A
DEWAYNE DEVIN ROARK
MEMORANDUM OPINION * BY
v. Record No. 2544-96-2 JUDGE LARRY G. ELDER
SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Cary B. Bowen (Amy M. Curtis; Bowen, Bryant,
Champlin & Carr, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Dwayne Devin Roark ("appellant") appeals his convictions of
threatening to burn a residence in violation of Code § 18.2-83
and abduction in violation of Code § 18.2-47. He contends that
the trial court erred when it denied his motion for a new trial.
He argues that a pretrial statement made by the Commonwealth's
primary witness that was discovered by the Commonwealth's
attorney after appellant's trial was Brady information, the
nondisclosure of which entitles him to a new trial. For the
reasons that follow, we affirm.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
FACTS
Appellant was charged with committing four crimes stemming
from two separate domestic disputes with his girlfriend
("victim"). Appellant was indicted for attempting to kill the
victim and using a firearm while attempting to commit murder on
December 23, 1995 ("December 23 charges"). Appellant was also
accused of abducting the victim and threatening to burn the
residence of the victim's grandmother on January 5, 1996
("January 5 charges"). All four charges were tried together by
the trial court on April 3, 1996.
The Commonwealth's primary witness at trial was the victim.
Regarding the attempted murder that allegedly occurred on
December 23, she testified that appellant "threw" her on the
floor of her kitchen, pulled out a gun, and "stepped back and
shot at [her]." The bullet fired by appellant missed the victim
and hit the floor. Appellant took the stand and testified that
he did not fire a gun at the victim on December 23. Relying
heavily on its determination that the victim's testimony was more
credible than appellant's, the trial court convicted appellant of
both the December 23 charges and the January 5 charges.
After appellant's trial, the Commonwealth's attorney became
aware for the first time of a statement made by the victim to a
deputy when she first reported appellant's conduct ("pretrial
statement"). In the statement, which was made on January 5, the
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victim said that during the altercation on December 23, appellant
"pointed a gun at her [and] then pulled it away and shot it in
the floor."
After the Commonwealth's attorney informed appellant's
counsel of the victim's pretrial statement, appellant moved the
trial court to dismiss the December 23 charges. The trial court
set aside appellant's convictions of these two charges and
ordered a new trial. The December 23 charges were later "nolle
prossed" by the Commonwealth.
Appellant subsequently filed motions for a new trial on the
January 5 charges on the grounds that the victim's pretrial
statement was both "after-discovered evidence" and "Brady
material." The trial court denied these motions.
II.
THE VICTIM'S PRETRIAL STATEMENT AS BRADY INFORMATION 1
Under the Due Process Clause of the Fourteenth Amendment,
attorneys for the Commonwealth have a duty to disclose evidence
to the accused that is both "favorable" to him or her and
"material" to either guilt or punishment. See Brady v. Maryland,
1
We disagree with the Commonwealth's contention that
appellant failed to preserve for appeal his argument that the
victim's pretrial statement was Brady information. Appellant's
Brady argument is absent from his written motion for a new trial.
However, during oral argument on his motion, appellant's counsel
stated that he considered the pretrial statement to be "Brady
material." Because the trial court was sufficiently placed on
notice of this ground for appellant's motion for a new trial, we
hold that Rule 5A:18 does not bar our consideration of it on
appeal.
3
373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963);
United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 2401,
49 L.Ed.2d 342 (1976). Evidence is "favorable to the accused"
within the Brady rule if it is either exculpatory evidence or can
be used to impeach the credibility of the Commonwealth's
witnesses. See United States v. Bagley, 473 U.S. 667, 676, 105
S. Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); see also Correll v.
Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352, 358, cert.
denied, 482 U.S. 931, 107 S. Ct. 3219, 96 L.Ed.2d 705 (1987).
Evidence is "material" to guilt or punishment 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.
Bagley, 473 U.S. at 682, 105 S. Ct. at 3383 (emphasis added); see
Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164
(1986). See also Kyles v. Whitley, 514 U.S. 419, 434-35, 115
S. Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).
Our role in assessing the favorableness and materiality of
purported Brady information is difficult. See Bowman v.
Commonwealth, 248 Va. 130, 134, 445 S.E.2d 110, 112 (1994).
We must look at the totality of the
circumstances with an awareness of the
"difficulty of reconstructing in a post-trial
proceeding the course that the defense and
the trial would have taken had the defense
not been misled by the prosecutor's
incomplete response" to [his duty to provide]
Brady information.
4
Id. (citation omitted). This case is made more difficult because
two of the four charges on which appellant was initially tried
have been dismissed. Thus, we must analyze the favorableness and
materiality of the victim's pretrial statement regarding
appellant's actions on December 23 in relation to a trial on the
only two charges still pending against appellant: that he
abducted the victim and threatened to burn her grandmother's
residence on January 5.
We hold that the trial court did not err when it denied
appellant's motion for a new trial on the January 5 charges
because the victim's pretrial statement would not be "favorable"
to appellant at such a trial. Appellant does not contend that
the victim's pretrial statement would be "exculpatory" in a trial
limited to the January 5 charges, i.e., it has no tendency to
rebut the victim's testimony about his conduct on January 5. In
addition, the victim's pretrial statement would not be admissible
to impeach her credibility at such a trial.
The law of evidence places constraints on the manner in
which witnesses may be impeached for being untruthful. "It is
permissible to impeach a witness by evidence that the witness is
a person of bad character, and therefore presumably not worthy of
belief." Charles E. Friend, The Law of Evidence in Virginia
§ 4-2(a) (4th ed. 1993). However, a witness' bad character for
veracity may be established only by proof that the witness (1)
has a bad reputation for truthfulness in the community, see
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Clinebell v. Commonwealth, 3 Va. App. 362, 370, 349 S.E.2d 676,
680-81 (1986) (citing Bradley v. Commonwealth, 196 Va. 1126,
1133, 86 S.E.2d 828, 833 (1955)), or (2) has been convicted of a
felony, perjury, or a misdemeanor involving moral turpitude, see
Ramdass v. Commonwealth, 246 Va. 413, 423, 437 S.E.2d 566, 572
(1993), vacated on other grounds, 512 U.S. 1217, 114 S. Ct. 2701,
129 L.Ed.2d 830 (1994). A witness may not be impeached by
showing "specific acts of untruthfulness or other bad conduct,
though these have bearing on veracity." Bradley, 196 Va. at
1133, 86 S.E.2d at 833.
In addition, the credibility of a witness may be impeached
by showing that he has made prior statements "inconsistent with
. . . the evidence he has given on the trial." Neblett v.
Hunter, 207 Va. 335, 340, 150 S.E.2d 115, 119 (1966). Generally,
only the testimony of a witness given during direct examination
may be impeached in this manner. See Waller v. Commonwealth, 22
Va. App. 53, 57, 467 S.E.2d 844, 847 (1996) (citations omitted).
"[I]f the subject matter is raised for the first time on
cross-examination and is collateral to the issues on trial, it
cannot be the basis for impeachment by proof of a prior
inconsistent statement." Id. "A witness may not be
cross-examined regarding any fact irrelevant to the issues on
trial when that cross-examination is for the mere purpose of
impeaching his credit by contradicting him." Simpson v.
Commonwealth, 13 Va. App. 604, 606, 414 S.E.2d 407, 409 (1992)
6
(citations omitted).
At a trial on the January 5 charges, the victim's pretrial
statement could not be used by appellant to impeach her
credibility. First, the pretrial statement would be inadmissible
to prove the victim's bad character for veracity because if
untrue it is merely a specific act of untruthfulness. See
Bradley, 196 Va. at 1133, 86 S.E.2d at 833. In addition, the
pretrial statement would be useless as a prior inconsistent
statement because assuming it only contradicts the victim's
account of the events on December 23, it would be outside the
scope of her direct examination at a trial limited to the
January 5 charges. Moreover, because the issue of appellant's
conduct on December 23 is collateral to the material issues at a
trial on the January 5 charges, appellant would be precluded from
raising and impeaching the victim's account of the events of
December 23 for the first time during his cross-examination. See
Waller, 22 Va. App. at 57, 467 S.E.2d at 847. 2
For the foregoing reasons, we affirm the convictions of
threatening to burn a residence and abduction.
Affirmed.
2
Because we hold that the victim's pretrial statement would
not be favorable to appellant at a trial on the January 5
charges, we need not consider whether this statement could be
"material" to either his guilt or punishment at such a trial.
7