COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Humphreys and O’Brien
Argued by videoconference
UNPUBLISHED
RANDY LEE LASSITER, JR.
MEMORANDUM OPINION* BY
v. Record No. 0422-20-1 JUDGE MARY GRACE O’BRIEN
JULY 20, 2021
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Mary Jane Hall, Judge
Taite A. Westendorf (Westendorf & Khalaf, PLLC, on briefs), for
appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
A jury convicted Randy Lee Lassiter, Jr. (“appellant”) of robbery, in violation of Code
§ 18.2-58, and wearing a mask or hood to conceal his identity, in violation of Code § 18.2-422.1
Appellant contends the court erred by allowing testimony from a rebuttal witness “because the
Commonwealth’s mid-trial Brady disclosures violated appellant’s due process rights and deprived
him of a fair trial.”2 Finding no error, we affirm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant was also charged with abduction, in violation of Code § 18.2-48, use of a
firearm in commission of abduction, in violation of Code § 18.2-53.1, and use of a firearm in
commission of robbery, in violation of Code § 18.2-53.1. The court granted appellant’s motion to
strike the abduction charge and its corresponding firearm charge and declared a mistrial on the
remaining firearm count after the jury failed to reach a verdict on it.
While represented by appellate counsel, appellant filed a “Motion for Bond Pending
2
Appeal” pro se in this Court. Because he was represented by counsel, we do not consider his pro se
motion.
BACKGROUND
On January 3, 2018, Pamela Williford and Juanita Amin were working the closing shift at a
Tinee Giant convenience store in Norfolk. At approximately 11:25 p.m., appellant entered the store
wearing a black hoodie with the hood up and a mask or scarf over the bottom half of his face. He
was carrying a silver handgun and a black duffel bag.
Appellant pointed the gun at Williford and ordered the women to go behind the counter. He
told Williford to “give him all the money now.” Williford opened the cash register, and appellant
reached over the counter, took cash from the register drawer, and stuffed it into his duffel bag. He
demanded more money, telling the women that “wasn’t all [of] the cash.” Williford retrieved a
concealed cash register drawer and placed it on the counter. Appellant removed the money from
that drawer and demanded cigarettes and cigars. After Williford and Amin put cigarettes and cigars
into appellant’s duffel bag, he left the store.
Williford immediately called the police. Detectives Jose Oyola and Alexander Kay of the
Norfolk Police Department arrived at the store and questioned Amin and Williford separately. The
women provided similar descriptions of the robber. According to Williford, appellant was a
“regular customer” of the Tinee Giant; in fact, she had seen him in the store the day before.
Five days later, on January 8, Williford saw appellant in the store again. She identified
appellant as the robber to her manager. The police subsequently obtained the store’s surveillance
footage, which included footage of the robbery as well as footage of appellant in the store on
January 2 and 8.
On February 7, appellant’s girlfriend, Shawnda McClease, informed Detective Kay that she
saw a news report of the robbery and believed that appellant was “the individual . . . that robbed the
Tinee Giant.” McClease told the detective that appellant was at her residence on the night of the
robbery and left with a black backpack. Later that day, Detective Kay showed Williford a
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six-person photographic lineup containing appellant’s picture. Williford positively identified
appellant from the lineup and completed a “Statement of Confidence in Identification,” in which she
described some of appellant’s physical characteristics and noted that he was a “regular customer”
whom she “talked to . . . all the time.”
Appellant was arrested on February 10. Three days later, McClease went to the police
station and recanted her earlier statement. She stated that Detective Kay was “going in the wrong
direction” because appellant did not commit the robbery.
On August 26, 2019, two days before trial, the Commonwealth sent appellant’s counsel a
witness list, which included the name “Ranuel Ramos.” On the day of trial, during voir dire, the
court advised the prospective jurors of the names of all witnesses and potential witnesses, including
Ramos.
Both Amin and Williford testified as eyewitnesses. Amin stated that she recognized
appellant during the robbery because he was “a regular customer” who “would come in every night
about the same time.” She identified appellant from the January 3 robbery footage that was played
for the jury. Williford also identified appellant from the robbery footage, as well as the footage of
appellant from January 2 and 8. On cross-examination, both women confirmed unequivocally that
appellant was the robber.
McClease testified on appellant’s behalf. She stated that she and appellant lived together
about half a mile from the Tinee Giant, where they frequently shopped. She identified appellant in a
still image taken from the January 2 footage; however, she testified that on January 3, appellant was
home with her all night. She denied ever telling Detective Kay that she believed appellant had
committed the robbery.
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On rebuttal, Detective Kay testified that McClease informed him on February 7, 2018 that
she believed appellant committed the robbery. The detective acknowledged that following
appellant’s arrest, McClease came to the police station and recanted her statement.
The Commonwealth also called Ramos, who had been incarcerated with appellant in
Norfolk City Jail, to testify in rebuttal. Appellant objected, asserting that the Commonwealth
suppressed information about Ramos in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Specifically, appellant argued that he was “ambushed” because he did not know “what [Ramos was]
going to say, whether or not [Ramos and appellant] were actually housed together, whether [Ramos]
saw information on the news, [and] whether or not he was made some kind of an offer [for]
leniency.”
In response, the prosecutor stated:
I have to provide exculpatory information. The Commonwealth has
no exculpatory information regarding Mr. Ramos with the exception
of his [criminal] record which I will provide to [counsel].
I will give that to him as soon as I speak to Mr. Ramos. He does
have a record. No specific offers have been made in the case. If that
had been the case, I would give [appellant] a copy of a plea
agreement or something like that, but I have no exculpatory
information as it pertains to Mr. Ramos.
Appellant advised the court that at the beginning of trial, the prosecutor told him that she
would not call Ramos unless appellant testified. When questioned about this statement, the
prosecutor acknowledged that “was my plan at that point, but I have decided we’re going to call him
this morning.”
The court granted appellant a brief recess to call the city jail to determine whether Ramos
and appellant had been housed together. However, an employee in the jail records department
responded that additional time was necessary to review the records and confirm whether the men
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were housed together. Appellant reiterated his objection to Ramos testifying but did not ask for a
continuance. The court acknowledged appellant’s “due process objection” and overruled it.
In his testimony, Ramos admitted that he had eleven prior felony convictions and two
pending felony charges. Ramos testified that he shared a cell with appellant for a weekend but did
not know anything about appellant or his charges beforehand. He stated that while housed together,
he and appellant had a five-minute conversation about reasonable doubt, during which appellant
exclaimed, “[T]here’s no way they can find [me] guilty because [I] had a mask on.” Ramos also
stated that he had never testified for the Commonwealth previously, and although he hoped to
receive “some leniency” in his upcoming cases, he had not been promised anything in exchange for
testifying, such as a favorable disposition of his pending charges.
The jury subsequently found appellant guilty of robbery and wearing a mask or hood to
conceal his identity.
Appellant moved to set aside the verdict based on insufficient identification. At a hearing
on the motion, the court also allowed appellant to raise pro se the issue of his “due process objection
to exclude [Ramos’s testimony] at trial.” The court denied the motion and noted that even without
Ramos’s testimony, “the evidence submitted by the two employees of the convenience store was
pretty overwhelming . . . [and] . . . [t]his case was proven way beyond a reasonable doubt, almost
beyond any doubt.”
ANALYSIS
Appellant contends the court erred by allowing Ramos to testify because the
Commonwealth’s disclosures about the witness were untimely under Brady.3
3
In his reply brief, appellant also asserts that the Commonwealth “duped [appellant] to give
up” his right to testify by “reneg[ing]” on its representation not to call Ramos as a rebuttal witness
unless appellant testified. Appellant contends that the Commonwealth’s “false promise[]”
constituted a constitutional violation. Without commenting on the propriety of the prosecutor’s
actions, we note that appellant did not present this argument to the trial court, and therefore we will
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When a Brady claim is reviewed on appeal, “the burden is on appellant to show that the trial
court erred.” Gagelonia v. Commonwealth, 52 Va. App. 99, 112 (2008) (quoting Galbraith v.
Commonwealth, 18 Va. App. 734, 739 (1994)). Although a “trial court’s factual findings will not
be disturbed absent clear error[,] . . . we review the trial court’s legal conclusions de novo.” Church
v. Commonwealth, 71 Va. App. 107, 116 (2019). Further, “constitutional arguments are questions
of law that [appellate courts] review de novo.” Shivaee v. Commonwealth, 270 Va. 112, 119
(2005).
The Fourteenth Amendment of the United States Constitution provides that no state shall
“deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend.
XIV, § 1, cl. 3. In Brady, the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused . . . 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.” 373 U.S. at 87; see Commonwealth v. Tuma, 285 Va. 629, 634 (2013) (“Under the
Brady rule, the prosecution’s suppression of evidence favorable to the accused and material to either
guilt or punishment violates due process.”).4
To establish a due process violation under Brady (“a Brady violation”), a defendant must
prove the following three components: (1) evidence favorable to the defendant existed; (2) the
not consider it on appeal. See Rule 5A:18; see also Edwards v. Commonwealth, 41 Va. App. 752,
761 (2003) (en banc) (“Although Rule 5A:18 allows exceptions for good cause or to meet the ends
of justice, appellant does not argue that we should invoke these exceptions. . . . We will not
consider, sua sponte, a ‘miscarriage of justice’ argument under Rule 5A:18.”).
4
In addition to the federal constitution, appellant relies on a state constitutional provision
stating that “in criminal prosecutions a man hath a right . . . to call for evidence in his favor.” Va.
Const. art. I, § 8. Because “due process protections afforded under the Constitution of Virginia are
co-extensive with those of the federal constitution, the same analysis will apply to both.” Shivaee,
270 Va. at 119. Accord Lilly v. Commonwealth, 50 Va. App. 173, 184 (2007) (stating that federal
due process principles “subsume any analysis of parallel provisions in the Virginia Constitution”).
See, e.g., Moreno v. Commonwealth, 10 Va. App. 408, 411-12, 416-17, 420 (1990).
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Commonwealth suppressed that evidence by failing to timely disclose it to the defendant; and
(3) the defendant was prejudiced by the nondisclosure. See Strickler v. Greene, 527 U.S. 263,
281-82 (1999); Workman v. Commonwealth, 272 Va. 633, 644-45 (2006); see also Tuma, 285 Va.
at 635, 637 (holding that favorable evidence is not “suppressed” in violation of Brady if it is
disclosed in “sufficient time to effectively use it at trial”).
A. Favorable Evidence
“Favorable” evidence includes exculpatory evidence as well as evidence that “may be used
for impeachment.” Workman, 272 Va. at 644; see United States v. Bagley, 473 U.S. 667, 676
(1985). In Virginia, the credibility of any witness may be impeached by evidence of that witness’
past conviction for a misdemeanor involving moral turpitude or a felony. Va. R. Evid. 2:607(a)(ii),
2:609(b); see Pearce v. Commonwealth, 53 Va. App. 113, 119-20 (2008). A witness may also be
impeached by evidence that he is biased in favor of the prosecution. Va. R. Evid. 2:610; see
Moreno v. Commonwealth, 10 Va. App. 408, 415 (1990).
Appellant argues that “[t]he Commonwealth’s failure to provide any information relating to
Ramos until mid-trial” violated his due process rights under Brady. However, the record shows that
the only favorable information the Commonwealth was required to give appellant pursuant to Brady
was Ramos’s criminal record. Ramos’s record included numerous felony convictions that could be
used to impeach his credibility. See Bramblett v. Commonwealth, 257 Va. 263, 276 (1999)
(“Evidence of the prior convictions of a witness is impeachment evidence under Brady.”).
Additionally, his criminal record reflected numerous pending felony charges that could be used to
show Ramos’s bias if he expected leniency in future disposition of those charges. See Moreno, 10
Va. App. at 415 (stating that “[b]ias as a form of impeachment . . . falls within the Brady
requirement to disclose”). In contrast, all of the other “information relating to Ramos” — including
his name, age, and race and the substance of his testimony about appellant’s incriminating
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statements while they were housed together — was not favorable evidence subject to mandatory
disclosure because appellant could not have used that information to exculpate himself or impeach
Ramos.
Appellant contends that the fact that Ramos was a jailhouse informant constituted
impeachment evidence. We disagree.
A defendant may impeach a government informant’s credibility by showing that the
informant received a benefit from the government — such as a promise of favorable disposition in a
future criminal case — in exchange for his testimony. See Giglio v. United States, 405 U.S. 150,
154-55 (1972); Lovitt v. Warden, Sussex I State Prison, 266 Va. 216, 246 (2003). “However, when
a person does not receive a benefit from providing such information, and later testifies as a
prosecution witness, the mere fact of his prior cooperation with the government agents does not
constitute impeachment evidence subject to disclosure” under Brady. Lovitt, 266 Va. at 246. Here,
Ramos did not receive any promised benefit from the Commonwealth in exchange for his
testimony. Therefore, Ramos’s mere status as a jailhouse informant did not constitute impeachment
evidence subject to disclosure.
Appellant suggests that any information at all about Ramos’s existence and informant status
was favorable because it would have allowed defense counsel to investigate other potential
favorable evidence, such as
whether there was independent corroboration of the informant’s
testimony; the extent to which the details of the testimony could be
obtained from a source other than the defendant; the informant’s
possible previous experience as an informant; whether the informant
has previously provided reliable or unreliable information; the
circumstances under which the informant initially provided the
information to the police or the prosecutor; and the specific
circumstances of the informant’s pending case and the nature of any
benefit he was hoping to receive.
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However, “Brady is ‘a disclosure rule, not a discovery rule.’” Tuma, 285 Va. at 635
(quoting United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996)). “‘A defendant cannot simply
allege the presence of favorable material and win reversal of his conviction.’ Rather, the defendant
must prove the favorable character of the evidence he claims has been improperly suppressed.
Speculative allegations are not adequate.” Jones v. Commonwealth, 32 Va. App. 30, 45-46 (2000)
(quoting Hughes v. Commonwealth, 18 Va. App. 510, 526 (1994) (en banc)); Lowe v.
Commonwealth, 218 Va. 670, 679 (1977) (stating that “conjecture” is insufficient to establish a
Brady violation).
The Commonwealth “ha[d] a duty to learn of any favorable evidence known to the others
acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S.
419, 437 (1995). The Commonwealth proffered — and Ramos confirmed at trial — that it did not
offer any plea agreements to Ramos in exchange for his testimony. The Commonwealth also
proffered that it was unaware of any other “exculpatory information regarding Mr. Ramos with the
exception of his [criminal] record.” Nothing in the record before us rebuts these proffers. Thus,
appellant’s speculation that he may have discovered additional exculpatory or impeachment
material stemming from the disclosure of Ramos’s anticipated testimony is insufficient to prove the
favorable character of any evidence he claims had been improperly suppressed. See Jones, 23
Va. App. at 45-46.
Accordingly, the only favorable evidence known to the Commonwealth that was subject to
disclosure was Ramos’s criminal record.
B. Suppression of Evidence
Appellant asserts that the Commonwealth’s delay in disclosing Ramos’s criminal record
until mid-trial constituted a Brady violation. However, evidence that is disclosed mid-trial is not
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“suppressed” if a defendant has “sufficient time to make use of [the evidence] at trial.” See Tuma,
285 Va. at 635 (quoting Read v. Va. State Bar, 233 Va. 560, 564-65 (1987)).
In Jones v. Commonwealth, a defendant received a copy of a prosecution witness’ criminal
record immediately preceding the witness’ testimony. 32 Va. App. at 45. The defendant moved for
a mistrial based on the timing of the disclosure. Id. at 45-46. This Court held that the witness’
criminal record was not suppressed because it was disclosed in time for the defendant “to
cross-examine [the witness] effectively.” Id. at 46.
Here, the Commonwealth supplied appellant with Ramos’s criminal record prior to his
direct examination. This disclosure was timely because appellant had ample opportunity to review
the record and use it to impeach Ramos’s credibility. See, e.g., Tuma, 285 Va. at 635. In fact,
appellant extensively questioned Ramos about the convictions and pending charges on his record
during cross-examination and repeatedly referred to the record during his closing argument.
Because the only favorable evidence subject to Brady disclosure was Ramos’s criminal
record and appellant received that record in time to effectively use it at trial, we hold that the court
did not err by allowing Ramos to testify in the Commonwealth’s rebuttal case.5
Affirmed.
5
Because appellant failed to prove that the Commonwealth suppressed Ramos’s criminal
record in violation of Brady, we do not address whether appellant was prejudiced by the timing of
that record’s disclosure. See Porter v. Warden of the Sussex I State Prison, 283 Va. 326, 332 (2012)
(explaining that an appellate court does not reach the issue of prejudice unless it first determines that
favorable evidence was suppressed); see also Strickler, 527 U.S. at 281-82 (listing the three
components of a Brady violation).
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