Opinion
Record No. 1729-91-1
June 15, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH ALAN E. ROSENBLATT, JUDGE.
Paul Henderson Ray for appellant.
John H. McLees, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Robert Edward Sills, Jr. (Sills) was convicted of the murder and robbery of Christopher Gilkerson, the robbery and aggravated malicious wounding of Loren Hoffman, and the use of a firearm in the commission of the Hoffman crimes. On appeal, Sills contends that the trial court erred in: (1) denying his motion to dismiss when the Commonwealth disclosed during trial a tape recording of a co-defendant's statement; (2) admitting into evidence a knife that was not conclusively proven to be the knife used in these crimes; and (3) considering, for sentencing purposes, evidence of Sills' prior bad acts. Finding no grounds for reversal, we affirm Sills' convictions.
Because the parties are familiar with the facts of the case, we restate only those facts necessary to explain our holding.
I.
Generally, "due process requires that the prosecution produce evidence favorable to the accused upon request when that evidence is material either to guilt or to punishment."Keener v. Commonwealth, 8 Va. App. 208, 212, 380 S.E.2d 21, 23 (1989) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). However, "[l]ate disclosure does not take on constitutional proportions unless an accused is prejudiced by the discovery violations depriving him of a fair trial." Moreno v. Commonwealth, 10 Va. App. 408, 417, 392 S.E.2d 836, 842 (1990).
So long as exculpatory evidence is obtained in time that it can be used effectively by the defendant, and there is no showing that an accused has been prejudiced, there is no due process violation. It is the defendant's ability to utilize the evidence at trial, and not the timing of the disclosure, that is determinative of prejudice.
Id. (citations omitted).
The trial court expressly found that no prejudice resulted from late disclosure of the tape. The trial court noted that Eldridge and Hoover were available to testify and that defense counsel was unable to articulate how he would have changed his defense had the tape been produced before trial. Although defense counsel stated that he would have used the tape to impeach Hoover's testimony, the tape consisted entirely of Eldridge's statements. The rules of evidence do not permit impeachment of a witness by the prior inconsistent statement of another individual. See Charles E. Friend, The Law of Evidence in Virginia § 28(a) (3d ed. 1988). Therefore, the tape could not have been used to impeach Hoover's testimony. Because Sills failed to establish that the late disclosure of the tape prejudiced him, the trial court did not err in denying his motion to dismiss the indictments.
"The remedial relief to be granted by the trial court following a discovery violation or upon the late disclosure of evidence is within the trial court's discretion and will not be disturbed on appeal unless plainly wrong." Moreno, 10 Va. App. at 420, 392 S.E.2d at 844. Defense counsel failed to request any relief short of dismissal. Counsel's failure to request a continuance or recess suggests that he did not believe that the tape would help his defense. Consequently, we find no abuse of discretion in the trial court's ruling.
II.
"The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). Evidence is admissible when it is material and relevant to prove a fact in issue. Quinn v. Commonwealth, 9 Va. App. 321, 323, 388 S.E.2d 268, 270 (1990). "'Every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue, is admissible.'" Cantrell v. Commonwealth, 7 Va. App. 269, 287, 373 S.E.2d 328, 337 (1988) (quoting Epperly v. Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882, 891 (1982)).
The trial court did not abuse its discretion in admitting the knife into evidence. The evidence showed that the dimensions of the knife blade were consistent with the weapon causing Gilkerson's injuries; traces of blood were found on both the handle and blade of the knife; "two limb hairs, of Caucasian origin, light brown in color" were found on the knife; Hoover had instructed Eldridge, who was his employee, to "do something" with the weapon; and the knife was found on Hoover's property in a barrel a few months after the crime. See Stamper v. Commonwealth, 220 Va. 260, 269-70, 257 S.E.2d 808, 815 (1979), cert. denied, 445 U.S. 972 (1980) (no error in admitting into evidence a weapon, which was found seven months after the murder and could not be positively identified as the murder weapon, found in a wooded area near home of defendant's parents where victim's keys were also discovered); Ives v. Commonwealth, 184 Va. 877, 881-82, 36 S.E.2d 904, 905-06 (1946) (holding that a mask of different nature than that described as used in robbery, found seven months after robbery in a room adjacent to that occupied by defendant, was properly admitted into evidence).
Sills erroneously contends that the Commonwealth had to prove that the knife was, in fact, the knife used in these crimes. "The test establishing relevance is not whether the proposed evidence conclusively proves a fact, but whether it has any tendency to establish a fact at issue." Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988). Thus, whether this knife was the weapon used in the crimes is a matter that goes to the weight of the evidence, rather than its admissibility. See Stamper, 220 Va. at 269, 257 S.E.2d at 815;Ives, 184 Va. at 881-82, 36 S.E.2d at 906.
III.
Finally, Sills contends that the trial court erred in considering, during the sentencing phase of the trial, testimony concerning Sills' prior bad acts. Detective Shaun Sqyers testified at the sentencing hearing that he had interviewed Sills in connection with a shooting at a hotel in October 1989. Sqyers testified, over defense counsel's objection, that Sills admitted that his possession of large blocks of crack cocaine with the intent to distribute them led to his presence at the scene of the crime. The trial judge ruled that the evidence concerning Sills' admission of dealing crack cocaine was "relevant to this proceeding," but that it would "disregard the implications that would be drawn from this murder investigation in Norfolk."
Contrary to Sills' contention, we conclude from the record that the trial judge limited his consideration of Sqyers' testimony to the evidence of Sills' admission to possessing crack cocaine with the intent to distribute in 1989. Indeed, the judge stated that he "disregard[ed] everything that [Sqyers] has testified to except for the statements made by [Sills] regarding his possession of an illegal substance." "[A] judge, unlike a juror, is uniquely suited by training, experience and judicial discipline to disregard potentially prejudicial comments and to separate, during the mental process of adjudication, the admissible from the inadmissible, even though he has heard both." Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981). As the trial judge observed, "the court routinely hears matters that are subsequently ruled inadmissible and are disregarded by the court. I don't have any difficulty in that area."
Moreover, we find no error in the trial court's consideration of evidence of Sills' prior unadjudicated drug dealing. Although evidence of prior bad acts is generally inadmissible at trial, no rule prohibits the consideration of such evidence during the sentencing phase. See Saunders v. Commonwealth, 242 Va. 107, 115 n. 2, 406 S.E.2d 39, 44 n. 2, cert. denied, 112 S.Ct. 386 (1991). Here, the judge concluded that this evidence was relevant to a statement in Sills' presentence report regarding drug use. Based upon the record before us, we find no abuse of discretion in the judge's ruling.
Affirmed.