Circuit Court of the City of Roanoke, Diane McQ. Strickland, Judge.
Moon, J. Coleman, J., concurred. Duff, J., Concurring in part and Dissenting in part.
Warren Edward Lemons, Jr., was convicted of second degree murder, malicious wounding, and the use of a firearm in the commission of both felonies. On appeal, Lemons claims the trial court erred in its discovery rulings by (1) allowing the Commonwealth to provide only a summary of the exculpatory portion of Randall Murray's statement; (2) not reviewing in camera the statements of Brian Gunn, Abdul Smith and William Dungee; and (3) not making the statements of Murray, Gunn, Smith and Dungee a part of the record for review by this Court. Because the record does not establish a reasonable probability that, had the alleged exculpatory evidence been disclosed to the defense, the result of the proceeding would have been different, we affirm.
At a pre-trial hearing, Lemons moved for the production of exculpatory evidence. The Commonwealth's attorney informed the court that she was unaware of the existence of any exculpatory evidence possessed by the Commonwealth. Defense counsel then moved the court to place under seal those statements taken from
witnesses which might be exculpatory. The court granted the motion.
Another hearing was held upon the Commonwealth's motion for reconsideration of the court's order requiring witness statements to be filed under seal. At that hearing, the Commonwealth's attorney admitted that since the prior hearing, she had discovered that Randall Murray had stated that someone other than Lemons had done the shooting. The Commonwealth's attorney provided Lemons with a summary of the exculpatory portions of Murray's statement. Defense counsel argued that Randall Murray's entire statement and the entire statements of the other witnesses should be disclosed or at least filed with the court under seal. The court, changing its earlier ruling requiring the witness statements in question to be placed under seal, took defendant's motion under advisement.
At trial, the Commonwealth placed into evidence a taped statement given by Lemons in which Lemons admitted both shootings. Detective Clingenpeel then testified that Lemons told him at the jail the day after the statement was made that he was "covering for Whiz," Abdul Smith, who he said did the shooting.
Murray was called as a defense witness and testified that he saw an altercation between two teenage black males and four teenage white males. He said that one of the black males said something and pointed in the direction of the white males. Then he heard a shot. He did not see the shooting and had no idea who did the shooting. On cross-examination, the Commonwealth sought to impeach Murray by reading from his prior statement (the exculpatory statement) to the police. In the portion of Murray's statement read into the record, he admitted he told the police that he had seen Brian "Chipper" Gunn pull the trigger three times, and that "either 'Muncher' Dungee or a third person that was standing out at the car grabbed the gun [and] shot a guy." Murray acknowledged making this statement but said that he was confused, dazed, and very upset when he made it. John Brown, Jr., testified that Chipper Gunn had been in the nightclub earlier that evening threatening to kill the bouncer, and had shown Brown a gun inside his jacket. At the time of trial, Gunn was dead.
In a post-trial motion, Lemons again moved that the undisclosed statements of Randall Murray, Abdul Smith, "Muncher" Dungee, and Brian "Chipper" Gunn, be made a part of the record. Lemons argued that these statements might have indicated that Lemons did not fire the shots, or that when he fired the shots he was upset or attempting to defend himself. The court ruled, however, that the statements would not be made a part of the record, but directed the Commonwealth's attorney to retain all transcripts and recordings of witness statements so that this Court could review them if it so desired.*fn1
(1-2) In order to prevent a miscarriage of Justice, the prosecution is required to reveal to the defense any exculpatory evidence in its possession. Brady v. Maryland, 373 U.S. 83, 87-88 (1963). Unless defense counsel learns of other exculpatory evidence that was withheld and brings it to the court's attention, the prosecutor's determination on disclosure is final. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987). If in doubt, a prosecutor may submit information to the trial court for an in camera review to rule on whether it must be disclosed. Cherricks v. Commonwealth, 11 Va. App. 96, 102, 396 S.E.2d 397, 400 (1990). However, only if a substantial showing is made that a specific item of exculpatory evidence exists and has been withheld does a defendant have a right to judicial review of the prosecutor's actions. See, e.g., United States v. Vastola, 685 F. Supp. 917, 919-20 (D.N.J. 1988).
Here, the exculpatory aspect of Murray's statement was disclosed to Lemons' counsel two months prior to trial. In this case, all witnesses, except for the deceased Gunn, were equally available to Lemons as they were to the Commonwealth. Lemons' counsel was free to interview them and call them to testify. In fact, the trial court indicated a willingness to reconsider its previous ruling by directing a disclosure of the witnesses' verbatim statements if the witnesses refused to be interviewed by the defense. Lemons never indicated he had such a difficulty.
(3) Lemons claims that, had the disclosure been made earlier, he would have interviewed Gunn and the other witnesses before Gunn died in the hopes of developing evidence that Lemons had
not committed the shooting. However, a claim that the prosecution has caused the defense to lose an opportunity to investigate and uncover potentially exculpatory evidence must be supported by a showing of bad faith. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Tickel v. Commonwealth, 11 Va. App. 558, 563, 400 S.E.2d 534, 537 (1991). The trial Judge determined that the prosecutor had acted ...