David Edward McCord v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, ∗ Willis and Annunziata
Argued at Richmond, Virginia
DAVID EDWARD McCORD
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2071-99-2 JUDGE SAM W. COLEMAN III
JANUARY 9, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
David Edward McCord was convicted in a bench trial of two
counts of attempted forcible sodomy, two counts of forcible
sodomy, rape, and abduction with intent to defile. On appeal,
McCord contends that the Commonwealth failed to disclose
exculpatory evidence in violation of the court's discovery order
and, as a result of those discovery violations, the trial court
∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
erred by failing to declare a mistrial. Finding no error, we
affirm.
I. BACKGROUND
On February 4, 1998, at approximately 7:00 p.m., the
twelve-year-old victim was walking her neighbor's dog. The
defendant, David McCord, approached the victim and attempted to
befriend her by asking permission to pet and walk the dog. As the
child attempted to leave, McCord grabbed and physically restrained
her. He then sodomized and raped her, and then carried her to a
parking lot where he released her when he heard the child's mother
calling for her.
The victim immediately reported the incident to the police.
She gave them a physical description of her attacker, including
his clothing. Chesterfield County Police Officer Yager Burke
testified that the victim described her assailant as a "white
male, 15 or 16 years old. Wearing a black coat, black shirt with
silver or light color on the shirt, khaki pants, black tennis
shoes." She described him as having "very short, buzz cut blond
hair." When she was interviewed again at the hospital, she added
that he had a bony nose and acne.
On the night of the assault, Chesterfield Police Officer
Elizabeth Baker showed the victim two photo lineups. The victim
did not identify anyone from either photo lineup as her assailant,
even though a photo of McCord with longer hair taken four months
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before the assault was in the second photo array. The next day,
the victim worked with a police officer to complete a
computer-generated composite of the suspect. Later that day, the
victim was shown a third photo lineup which contained a recent
photograph of McCord. According to Officer Baker, the victim
"almost immediately" identified McCord as her assailant. Baker
testified, however, that the victim displayed "somewhat" of a
reservation in identifying McCord. Baker explained that the
victim told her that McCord's face looked "a little washed out"
and he "did not have as much acne as she thought." However, on
cross-examination, Baker further stated that the victim
"positively" identified McCord in the third lineup, stating that
the photo looked exactly like her assailant. Baker testified that
there appeared to be "no doubt" in the victim's mind when she
identified McCord as her assailant from the third photo lineup.
After the victim identified McCord from the third photo lineup,
Baker showed her a Polaroid photo of McCord that was used to make
the photo that was actually used in the third lineup. Upon seeing
the original Polaroid photo, the victim stated that the photo "was
exactly like him."
Based on the victim's identification of McCord in the third
photo lineup, McCord was arrested. At the time he was arrested,
McCord gave Officer Baker his coat and a black shirt, which McCord
maintained his brother had been wearing on the day of the alleged
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assault. After McCord's arrest, the officers obtained a search
warrant for his home. As a result of the search, the officers
seized a pair of shoes, which matched the victim's description of
the assailant's shoes. The victim identified the clothing items
to be like those worn by the assailant. She stated that the shoes
were identical to those worn by her assailant and that the style
of the coat looked liked the assailant's coat but she remembered
it as being "lighter [in color] than she thought." She stated
that the coat smelled like the assailant. The victim also
identified the shirt as being like the one worn by her assailant,
but she stated that she did not remember "that red was on the
shirt."
A forensic scientist, who was qualified as an expert in trace
evidence, examined McCord's coat and the coat and sweater the
victim was wearing when she was assaulted. The expert testified
that fibers found on McCord's coat were physically, chemically,
and optically consistent with fibers from the victim's clothing.
Prior to trial, McCord requested disclosure of exculpatory
evidence from the Commonwealth. He specifically requested and the
court ordered, "[a] description of any identification procedure
involving the defendant in which a witness failed to identify or
expressed any reservation about identifying the defendant." The
discovery order further compelled the Commonwealth to produce "all
photographs or photograph arrays." In response to the discovery
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order, the Commonwealth disclosed the photos that were used in the
photo lineups that where shown to the victim. The Commonwealth
did not give McCord the single Polaroid photo or disclose to him
that it was shown to the victim.
At the conclusion of the Commonwealth's case, McCord moved
for a mistrial and dismissal of the charges. He argued that the
Commonwealth failed to turn over the Polaroid photo in violation
of the discovery order that required the Commonwealth to provide
the defendant with "all photographs or photograph arrays." He
also argued that the Commonwealth failed to disclose exculpatory
information because the Commonwealth failed to inform him that the
victim was uncertain or reluctant to identify him until after she
had been shown the single Polaroid photo. McCord also argued
that, because the photo lineup was "tainted" by showing the victim
the single Polaroid photo, the evidence obtained as a result of
the search warrant and the victim's in-court identification of him
should be suppressed.
II. ANALYSIS
"[S]uppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution." Brady v.
Maryland, 373 U.S. 83, 87 (1963). "Favorable evidence is
material 'only if there is a reasonable probability that, had
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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.'" Soering v. Deeds, 255 Va. 457, 464, 499
S.E.2d 514, 517 (1998) (quoting United States v. Bagley, 473
U.S. 667, 682 (1985)). The reviewing court must "assess the
reasonable probability of a different result in 'light of the
totality of circumstances and with an awareness of the
difficulty of reconstructing in a post-trial proceeding the
course that the defense and the trial would have taken had the
defense not been misled by the [nondisclosure].'" Taitano v.
Commonwealth, 4 Va. App. 342, 349, 358 S.E.2d 590, 594 (1987)
(citation omitted). This test requires that the effect of the
suppressed evidence be considered collectively. See Kyles v.
Whitley, 514 U.S. 419, 436 (1995). Moreover, we have stated:
Late disclosure does not take on
constitutional proportions unless an accused
is prejudiced by the discovery violations
depriving him of a fair trial. 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. Read v. Virginia State
Bar, 233 Va. 560, 564, 357 S.E.2d 544,
546-47 (1987). It is the defendant's
ability to utilize the evidence at trial,
and not the timing of the disclosure, that
is determinative of prejudice. See Robinson
v. Commonwealth, 231 Va. 142, 152, 341
S.E.2d 159, 165 (1986).
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Moreno v. Commonwealth, 10 Va. App. 408, 417, 392 S.E.2d 836,
842 (1990). Exculpatory evidence includes evidence that may be
used by the defendant for impeachment purposes. See Robinson,
231 Va. at 150, 341 S.E.2d at 164.
On appeal, McCord argues that the victim's reservations in
identifying him in the photo lineup and in identifying his
clothes is exculpatory evidence. He asserts that the untimely
disclosure of the exculpatory evidence deprived him of (1) due
process because he was unable to effectively utilize the
information at trial, (2) effective assistance of counsel, 1 and
(3) the right to a jury trial. Further, he argues that had the
circumstances surrounding the identification procedure and the
use of the single Polaroid photo been disclosed, he would have
filed a pretrial motion to suppress the identification.
A. Photograph Identification
We accept for purposes of our analysis that the Commonwealth
violated the court's discovery order, which compelled the
Commonwealth to provide McCord "all photographs or photograph
arrays," by failing to give McCord the single Polaroid photo used
1
After McCord was convicted, but before he was sentenced,
he filed a motion for substitution of counsel. New counsel then
filed his first motion for new trial, arguing, among other
things, that trial counsel was ineffective because of "counsel's
acts and omissions during counsel's pretrial and trial
representation." New counsel also contended that but for trial
counsel's promise that McCord would have been acquitted, McCord
would have demanded a jury trial.
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to make the photo in the third photo lineup or to tell him that
the Polaroid was used to assist the victim in the identification
procedure. However, we hold that McCord learned of the Polaroid
photo in time to use it effectively at trial and that there is no
reasonable probability that, had the Commonwealth given or
informed the defendant regarding the use of the Polaroid
photograph, the outcome of the proceedings would have been
different. McCord vigorously cross-examined the officer regarding
the identification procedures, and he vigorously cross-examined
the victim about the identification and her level of certainty in
identifying him. Further, the record reflects that McCord made no
request for a continuance at any time during trial after he
learned of the purported discovery violations.
The record does not support McCord's contention that the
victim expressed reservations when identifying McCord or that the
victim identified McCord only after seeing the single Polaroid
photo of him. At trial, the victim testified that she identified
McCord from the third photo lineup, before she was shown the
single Polaroid photo. She testified that after she identified
McCord, she told Officer Baker that the photo looked "washed out"
and that the person did not appear to have as much acne as she
remembered her assailant having. The victim stated that the
photograph "didn't look totally like him. Because of the acne."
At that point, Officer Baker showed the victim the Polaroid photo.
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On cross-examination, the victim testified that when she was shown
the third photo lineup she identified McCord, stating "this looks
exactly like the person who attacked me. But his face is very
washed out. Do you have a better picture?" After the victim was
shown the Polaroid, she stated, "Yes, this is the man that did
this to me." Officer Baker also testified that the victim
identified McCord from the third photo lineup. Baker stated that
there appeared to be "no doubt" in the victim's mind in
identifying McCord from the third photo lineup.
McCord has failed to demonstrate that the undisclosed
evidence concerning the Polaroid photo was exculpatory. Because
the evidence was not exculpatory, the Commonwealth was not
required under Brady to disclose it. Therefore, the trial court
did not err in denying McCord's motion for a mistrial.
To the extent that McCord argues that had the Commonwealth
disclosed the evidence he would have moved to suppress the
identification and insisted on a jury trial, McCord failed to
present these arguments to the trial court when arguing his motion
for a mistrial. By failing to argue that the nondisclosure of
this evidence deprived him of his right to a fair trial and his
right to a jury trial at the time he moved for a mistrial, the
trial judge was unable to consider the merits of this argument.
Accordingly, we will not consider those issues on appeal. See
Rule 5A:18.
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B. Clothing Description
McCord next asserts that the Commonwealth violated the
discovery order by failing to disclose that the victim had
reservations in identifying the clothing obtained from his home as
being the same as worn by the assailant.
We find that McCord obtained the evidence regarding the
victim's identification of the clothing in time to effectively use
it at trial. Assuming that some aspects of the victim's clothing
identification were exculpatory, McCord has failed to demonstrate
that he was prejudiced by the late disclosure. When interviewed
by law enforcement officials after the assault, the victim
described her assailant as wearing a black shirt with silver
lettering, khaki pants, a mid-thigh black or dark-colored coat
with a drawstring waist, and black suede sneakers with a thick
white sole. Based on the victim's description of the clothing,
Officer Baker obtained from McCord a black T-shirt with white
lettering, a pair of black suede sneakers, and a khaki-colored,
mid-thigh length coat with a drawstring waist. The items of
clothing were shown to the victim prior to trial, and she
identified them as those worn by her assailant. The victim stated
that the shoes were identical to those worn by the assailant.
Although the coat was a lighter color than the coat she had
remembered, the victim stated that the coat was the same style as
the one worn by the assailant and that the coat smelled like her
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assailant. The victim identified the shirt but stated that she
did not remember "that red was on the shirt."
At trial, the victim identified the shirt that was obtained
from McCord but stated that she remembered the letters as being
silver not white. The victim unequivocally identified the shoes
as those worn by the assailant. The victim also identified the
coat as being worn by the assailant because, although it was not
the same color, it was the same style and it smelled like her
assailant. McCord objected to the admissibility of the shirt,
arguing that the victim failed to sufficiently identify it. On
cross-examination, the victim explained that she may have believed
the letters on the shirt were silver because of the reflection of
the light in the area where she had been accosted. She also
testified that she may have remembered the coat being black rather
than khaki because it was dark that evening.
Assuming that the statements the victim made when identifying
the clothing were exculpatory, any failure by the Commonwealth to
disclose the evidence did not prevent McCord from effectively
using the evidence at trial. The record reflects that McCord
vigorously cross-examined the victim about the discrepancies
between the description of the clothes she stated her assailant
was wearing and the clothes that were obtained from McCord.
Moreover, McCord was also aware of the discrepancies from the
transcript of the preliminary hearing and he used the transcript
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in cross-examining the victim. Further, McCord did not object to
the admissibility of the evidence at trial, move for a
continuance, or seek to suppress the evidence.
Although McCord asserts that had the Commonwealth disclosed
the victim's reservations in identifying the clothing he would
have insisted on proceeding with a jury trial, he argued in his
second motion for a new trial that he made the tactical decision
to waive a jury trial after evaluating the weight of the fiber
evidence. Further, in his first motion for a new trial, McCord
asserted that he waived his right to a jury trial based on trial
counsel's assurance that he would be acquitted of all charges.
"The mere possibility that 'undisclosed information might have
helped the defense, or might have affected the outcome of the
trial, does not establish "materiality" in the constitutional
sense.'" Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d
114, 124 (1996) (citation omitted). McCord's assertions that
had he known of the evidence earlier he would have elected a
jury trial and that the outcome of the proceeding with a jury
trial would have been different from a judge trial is
speculative and insufficient to establish prejudice.
Accordingly, we find that the trial court did not err in
denying McCord's motions for a mistrial and for a new trial.
We, therefore, affirm the convictions.
Affirmed.
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