Opinion
Record No. 0303-94-4
Decided: March 14, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Thomas A. Fortkort, Judge
(Clinton O. Middleton, Senior Assistant Public Defender; Office of the Public Defender, on brief), for appellant. Appellant submitting on brief.
(Thomas C. Daniel, Assistant Attorney General; James S. Gilmore, III, Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Koontz, Fitzpatrick and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
David Bernard Watson (Watson) appeals his convictions for five counts of malicious wounding, Code Sec. 18.2-51, and use of a firearm in the commission of a felony, Code Sec. 18.2-53.1. Watson asserts that the trial court erred in failing to grant a continuance to permit him to obtain civilian clothing to wear at trial in place of his prisoner's overalls. He further asserts that the trial court erred in failing to strike the evidence of an eyewitness where the Commonwealth failed to disclose the fact and incidents of the witness' prior out-of-court identification. Finding no error, we affirm Watson's convictions.
We restate only those facts necessary to our holding within our opinion. Watson was brought to court in prisoner's overalls. In the pretrial arraignment, counsel asserted that Watson's civilian clothes "were messed up in some way." Although counsel asserted that this was "a problem," he neither suggested nor sought any specific relief from the court.
Watson was then asked if there was any reason he could not proceed to trial. He replied, " 'Cause my family is not here, for one thing. They haven't had no chance to get me no clothes." A discussion between the court and counsel on the absence of Watson's relatives as potential witnesses then ensued. No further mention of the clothing issue was made.
We recognize that the Commonwealth cannot compel an accused to stand trial before a jury while dressed in clothing which identifies him as a prisoner. Estelle v. Williams, 425 U.S. 501, 504-05 (1976). However, compulsion is not demonstrated by provision of prisoner's clothing by the Commonwealth when no suitable street clothing is available. Absent a proper objection and request for a continuance by the defendant which is denied by the trial court, no element of compulsion exists. Id. at 512-13. Furthermore, the failure to raise a specific objection before the trial court bars consideration of the issue on appeal. Rule 5A:18.
We hold that the two brief references to the issue were insufficient to raise a particularized objection and request for a continuance. Moreover, even if these references were sufficient to overcome the 5A:18 bar by raising a general objection, Watson, by not seeking a continuance, has failed to demonstrate the necessary compulsion by the Commonwealth required to show a violation of his due process rights.
During cross-examination of Mary Cherry, an eyewitness to the crimes, the defense elicited from her that she had identified Watson as one of the assailants in one of two photo arrays shown to her by police. Watson asserted that the fact of these photo array identifications was a surprise and that the photo arrays had not been supplied to him pursuant to his Brady motion for discovery. He further asserted that Cherry's failure to identify Watson in one of the arrays was exculpatory. Watson asserts that the trial court should have stricken Cherry's testimony in full. We disagree.
Assuming, without deciding, that the proper remedy would have been to strike the in-court identification had Watson been entitled to pretrial discovery of the fact and incidents of Cherry's out-of-court identification, we hold that no such action was required because Watson was not entitled to discovery of that evidence. The Virginia Supreme Court has held that the existence of a photo array used in a police investigation is not necessarily discoverable. Mueller v. Commonwealth, 244 Va. 386, 408, 422 S.E.2d 380, 394 (1992), cert. denied, 113 S.Ct. 1880 (1993). Under facts similar to those found here, the Court held in Mueller that where the evidence did not establish that the accused's photograph appeared in the array for which no identification was made, the array was not exculpatory and subject to discovery under a Brady order. Id. Viewing the record in the light most favorable to the Commonwealth, Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988), the evidence does not establish that Watson's picture appeared in the first array. Police showed Cherry the array and asked her to identify any of the assailants. Accordingly, it is just as likely that the first array contained the photograph of another suspect as one of Watson.
Similarly, the fact that Cherry identified Watson in the second array was not exculpatory, thus it was not discoverable under the Brady order. Assuming, without deciding, that Watson was entitled to discover the fact and incidents of the pretrial identification in order to raise a challenge to the suggestiveness of the procedure in a suppression hearing or for use in disputing Cherry's identification, we hold that the record does not support a finding that he exercised the necessary diligence to discover that evidence.
Nor does it appear that "[s]uch evidence . . . if disclosed and used effectively, [would have made] the difference between conviction and acquittal." United States v. Bagley, 473 U.S. 667, 676 (1985). Watson was permitted to examine both the witness and the officer who conducted the identification. Nothing in their testimony suggests any impropriety or uncertainty arising from the pretrial identification.
For these reasons, we affirm Watson's convictions.
Affirmed.