Opinion
Record No. 1419-93-2
Decided: January 24, 1995
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE, Herbert A. Pickford, III, Judge Designate
Jonathan J. Stokes (Steven D. Rosenfield; McGuire, Woods, Battle Boothe, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Bray and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Richard William Jones appeals his convictions of abduction, use of a firearm in the commission of a felony, and attempted robbery. He contends that the trial judge erred in overruling his motion to dismiss the charges on the ground that he was denied a speedy trial. Jones also argues that the trial court should have granted him a new trial because the Commonwealth failed to disclose exculpatory evidence. We need not determine the merit of Jones's first contention because he failed to make a timely objection; therefore he is barred from raising the issue on appeal. As for Jones's second argument, we hold that, although the evidence had exculpatory value and should have been disclosed, there is no reasonable probability that, had the evidence been disclosed to Jones, the result would have been different. Therefore, we affirm.
Jones is barred from appealing his conviction on the grounds of his speedy trial claim because he did not allege he had been denied his right to a speedy trial until his sentencing hearing after the court found him guilty. See Rule 3A:9(b) (2). However, Jones argues that the Commonwealth is precluded from raising the issue of the timeliness of his speedy trial claim (that it is barred on appeal) because the Commonwealth acquiesced and participated in the trial court's evidentiary hearing on the merits of Jones's speedy trial claim. We disagree. "Rule 5A:18 does not require an appellee to raise an issue at trial before it may be considered on appeal where the issue is not offered to support reversal of the trial court ruling. An appellee is subject to the limitations of Rule 5A:18 only where it asserts an error that seeks to reverse a judgment." Driscoll v. Commonwealth, 14 Va. App. 449, 451-52, 417 S.E.2d 312, 313 (1992) (citations omitted).
"An appellate court may affirm the judgment of a trial court when it has reached the right result for the wrong reason." Id. at 452, 417 S.E.2d at 313 (citation omitted). Accordingly, we affirm the trial court's decision to overrule Jones's speedy trial claim although it reached this result for reasons other than those expressed in this opinion.
Suppression of exculpatory evidence violates due process where the evidence is material either to guilt or punishment. Brady v. Maryland, 373 U.S. 83 (1963); Stover v. Commonwealth, 211 Va. 789, 180 S.E.2d 504 (1971), cert. denied, 412 U.S. 953 (1973). Evidence that impeaches the credibility of a Commonwealth witness is exculpatory evidence. Robinson v. Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986).
"When a trial court reaches the correct result for the wrong reason, its judgment will be upheld on appeal." Dziarnowski v. Dziarnowski, 14 Va. App. 758, 762, 418 S.E.2d 724, 726 (1992). Although we agree with the trial court's result, the trial court analyzed this issue as an after-discovered evidence issue. We believe it is more appropriately examined as an exculpatory evidence issue.
[F]ailure to disclose exculpatory or impeachment evidence requires reversal only if the evidence was "material," and 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
MacKenzie v. Commonwealth, 8 Va. App. 236, 244, 380 S.E.2d 173, 177 (1989) (citation omitted).
In Jameel Clark's statement to the police, Clark identified his passenger as his cousin Pedro. At trial, Clark testified that his passenger was named Carl. Although the inconsistent statement to the police could have been used to impeach Clark and was, therefore, exculpatory evidence, Jones has failed to prove that the evidence was material.
Even if the Commonwealth did not realize the exculpatory value of the statement before the trial, the Commonwealth should have produced the statement to Jones once the inconsistency became apparent during Clark's testimony.
Jones argues that had he known the correct identity of the passenger, the passenger could have been called to testify on Jones's behalf. Jones asserts that the passenger's testimony " could have corroborated the defendant's testimony or further challenged the credibility of the complaining witness." However, "a defendant must prove the favorable character of evidence he claims has been improperly suppressed. Speculative allegations are not adequate." Hughes v. Commonwealth, 18 Va. App. ___, ___, 446 S.E.2d 451, 461 (1994) (reh'g en banc). The "obvious speculation inherent in [Jones's] contention is fatal to the validity of the position [Jones] takes." Lowe v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977), cert. denied, 435 U.S. 930 (1978). Jones did not proffer the potential witness's testimony. Therefore, there is nothing in the record to indicate that the trial judge would have changed his ruling. Jones's assertion that his version of the incident "could have" been corroborated by the witness is mere speculation and " 'such conjecture is insufficient to bring the motion here under the rule of Brady and Stover.' " Id. at 679, 239 S.E.2d at 118.
Accordingly, we find that there is no reasonable probability that the result of Jones's trial would have been different if Clark's statement had been disclosed to Jones before trial.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.