Opinion
Record No. 2339-91-1
August 17, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH FREDERICK B. LOWE, JUDGE.
Sheila A. Drucker (Office of the Public Defender, on brief), for appellant.
Thomas C. Daniel, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The sole issue presented by this appeal is whether the evidence is sufficient to support the bench trial conviction of Gladstone Alpheus Edwards (appellant) by the Circuit Court of the City of Virginia Beach (trial court) for malicious wounding. Finding that the evidence is sufficient, we affirm the judgment of the trial court.
Stating the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom, Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988), we find that on June 15, 1990, at approximately 11:00 p.m., Kevin Woosley (victim), Scott Reimer and Brian Litzenberg finished their shifts with the Navy and drove to Virginia Beach. While driving on Atlantic Avenue, the victim stopped the car and "let [Reimer and Litzenberg] out" to "use the restroom." As he let them back into the car, he noticed "five to seven black men" in a car behind him "blowing their horn and saying, 'These honky guys can't drive worth shit.'" That car then pulled adjacent to the victim's car and its occupants began "exchanging words" with Reimer. The victim pulled into the parking lot of a store to make a purchase and the second car followed him. When Reimer and Litzenberg exited the victim's car, a "bunch of guys jumped out" of the other car and "rushed Reimer." William Cheeks, an occupant of the second car, "cut" Reimer "with a razor blade." When the victim got out of his car, he heard someone say, "I want to cut this cracker." Appellant then hit the victim in the face with what the victim thought at the time was just a ring. The victim then heard someone "hollering," "they got knives," and the assailants "ran to [their] car and took off." Reimer took down the license plate number of the assailants' car, and Sergeant David Boyd of the Virginia Beach Police Department subsequently retrieved a "razor knife" from that vehicle's glove compartment. The razor knife was admitted into evidence.
The victim's wound required thirty-two stitches across his face. He positively identified appellant as his assailant in a pre-trial photographic lineup and again at trial. Although Reimer did not see appellant strike the victim, he identified appellant as one of the occupants of the assailants' car. thereby entitling him to view the entire report made by Young to determine whether it contained other exculpatory evidence.
It is clear that the defense has no right to search through the Commonwealth's files, hoping to find exculpatory evidence.Cherricks v. Commonwealth, 11 Va. App. 96, 101, 396 S.E.2d 397, 400 (1990). In Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the Supreme Court stated:
In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963), it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final.
Id. at 59 (footnote omitted). At trial, appellant conceded that he was "not entitled to a fishing expedition to go through the Government's files." We agree. After that concession, he requested that the trial court "fish" through the report and perform the act he conceded he was not permitted to do. We find that the trial court did not err in refusing to comply with that request. Having failed in that request, he moved the trial court to procure the report, seal and forward it to this Court, so that we might engage in the "fishing expedition" he concedes he was not entitled "to go through." We find no error in the trial court's refusal to add that task to our duties.
We hold that any difference in Young's description of appellant's size is not evidence that exculpates appellant. It should have been, and was, admitted for the trier of fact to weigh that evidence as it may have affected Young's credibility. That information was received in time to be considered by the trial judge and was fully explored by appellant in his cross-examination of Young.
Disclosure of exculpatory evidence is based on due process. Even if we find the description evidence to be exculpatory, failure to disclose it prior to trial does not constitute reversible error because the totality of the evidence shows it is not reasonably probable that had it been received in advance of trial, the result of the proceeding would have been different. See United States v. Bagley, 473 U.S. 667, 668 (1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164 (1986); MacKenzie v. Commonwealth, 8 Va. App. 236, 244, 380 S.E.2d 173, 177 (1989). Here, the evidence shows that while Young worked undercover, he saw appellant on two or three occasions before the initial purchase, made an in-court identification of him and selected his photograph from five others as a picture of the person who distributed cocaine to Young. It is not reasonably probable that the result of the trial would have been different if the description contained in the report had been made known to appellant in advance of the trial. Appellant has not shown that he has been prejudiced. We hold that the Commonwealth's failure to provide the size description in advance did not deprive appellant of a fair trial.
Six months prior to the trial, appellant received a complete photocopy of the photographs that were included in the line-up from which Young selected his picture. At trial, Norfolk Police Department Vice and Narcotics Investigator Stephen Hoggard testified that he had conducted the photographic line-up on April 11, 1990, placing appellant's picture among five others, and that Young identified appellant as the criminal agent. Hoggard kept the photograph of appellant that Young selected and introduced it into evidence at the trial; however, Hoggard had the other photographs returned to their respective files. Appellant moved that the originals or duplicates be produced to assist him in his cross-examination of Hoggard. His motion was denied.
The photocopies given to appellant six months prior to trial were obviously photostatic copies, not photographs processed from a negative. Appellant was on notice that the pictures he received were not originals. If appellant wanted the originals, he had ample time to request them during the six months he had knowledge of their existence. He made no such request until the trial was more than one-half completed.
We find that whether the originals should have been produced at that stage of the trial is a matter, as is the admissibility of other evidence, largely within the discretion of the trial court. The scope of the cross-examination in general, and the extent of testimonial impeachment in particular, should be left largely to the sound discretion of the trial court. The rule is well established that an appellate court will not interfere, unless that discretion is plainly abused. Spruill v. Commonwealth, 221 Va. 475, 485, 271 S.E.2d 419, 425 (1980). We find no abuse of trial court discretion.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.