Henry Coon Davis, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Hodges
HENRY COON DAVIS, A/K/A
H. C. DAVIS
MEMORANDUM OPINION *
v. Record No. 0517-95-3 BY JUDGE WILLIAM H. HODGES
SEPTEMBER 24, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
James T. Ward (Reelia R. Watson, on brief),
for appellant.
(James S. Gilmore, III, Attorney General;
Leah A. Darron, Assistant Attorney General,
on brief), for appellee. Appellee submitting
on brief.
The appellant, Henry Davis, was convicted of arson and the
murders of Sherry and Savannah Stamper, which resulted from the
arson. On appeal, Davis contends that the trial court erred in
refusing to grant his motion for a new trial based on one of two
alternative grounds: (1) the Commonwealth's failure to provide
exculpatory evidence; or (2) newly discovered evidence. For the
reasons that follow, we affirm the trial court's denial of
appellant's new trial motion.
BACKGROUND
The Preliminary Hearing
On May 25, 1994, a joint preliminary hearing was held for
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant and two codefendants, Ralph Allen Phillips, Jr.
(Phillips) and William Ray Davis (Billy). During that hearing,
the prosecution's key witness, Lonnie Buryl Pierce, testified.
Pierce was charged with two counts of conspiracy to commit
murder. Pierce testified that around 11:00 p.m. on the night of
the crimes, he left his girlfriend's house in Chilhowie and
arrived "at the intersection at [Routes] 58 and 603" in Konnarock
around 11:20 p.m. He was sitting in his parked car when a car
containing appellant, Phillips, and Billy "pulled in beside"
Pierce's car. Billy invited Pierce to ride with them, and Pierce
accepted the invitation. The foursome visited the home of Tammy
Perrin, where appellant obtained a can. They left Perrin's home
and travelled to the Stamper home, where Pierce saw appellant
pour something around the house and on the porch. Pierce then
saw a "flame like a matchlight" originate from appellant. After
Pierce turned to run, he heard "something go 'whew' real loud
behind [him]."
Counsel for appellant and the codefendants cross-examined
Pierce and discovered that Pierce made numerous statements to the
police and to the Commonwealth's Attorney. Pierce admitted
giving two written statements to the Commonwealth's Attorney.
One statement was consistent with his testimony and described the
conduct of the four men culminating in appellant's actions at the
Stamper home. The other statement differed only in that it did
not include Phillips' name as the fourth person in the car.
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Pierce also admitted talking with Officer Don Hash three or
four times before he was charged with any crimes. Pierce
admitted that, "[i]n addition to a written statement [he] gave to
Don Hash, [he] gave them [sic] some verbal statements." Pierce
related a written statement that he gave to Hash in which he
falsely told Hash that he "went straight from Chilhowie to [his
home in] White Top [and] didn't see anybody; didn't talk to
anybody."
Appellant's Trial
On September 27, 1994, appellant was tried separately from
his codefendants. Danny Stamper, the husband and father of the
murder victims, testified that he and Billy, appellant's brother,
fought twice during the afternoon preceding the fire, and that
Stamper "got the better of" Billy.
Pierce gave substantially the same incriminating testimony
that he provided at the preliminary hearing, after which defense
counsel cross-examined him. Pierce said that his first statement
to the police was made to Grayson County Sheriff D. B. Taylor.
In the statement, Pierce "denied knowing anything about it."
Pierce agreed with defense counsel that, on March 12, 1994, a few
days after the statement to Taylor, he told the police that he
saw appellant start the fire. During cross-examination, defense
counsel asked Pierce to explain the inconsistency between his
statement made on March 12, 1994 that he was intoxicated on the
night of the fire, and his testimony at the preliminary hearing
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that he was not drunk that night. Pierce admitted that he lied
in the March 12, 1994 statement.
On redirect, Pierce described his prior convictions,
including the fact that he pleaded guilty to conspiracy to commit
both murders. He also admitted giving various prior statements
that differed from his trial testimony.
Codefendants' Trial
On October 20, 1994, Billy and Phillips were tried jointly.
During that trial, an additional statement written by Pierce was
disclosed.
Motion for New Trial
On February 7, 1995, at sentencing, appellant argued his
motion for a new trial. Appellant represented that "a statement
signed by Lonnie B. Pierce, Jr." "was placed in evidence" at the
"trial of the co-defendants [Billy and Phillips]."
Appellant contended that the statement was never disclosed.
In it, Pierce stated that when he arrived at Konnarock, he saw a
man with long hair and a beard walking along the road. After he
passed the man, Pierce "saw a light in the direction of the
Stamper house which [Pierce] thought was a porch light." On his
way to his house, Pierce saw "a loud old truck." He arrived home
around 11:40 p.m. and went to bed. When he awoke the next
morning, his "mother told [him] what had happen[ed]."
Appellant asserted that the statement was exculpatory, and
that it was the only statement by Pierce corroborated by "other
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witnesses that said 'they saw a man walking along that road at
the time this happened.'" Specifically, appellant alleged that,
by having access to the statement, the codefendants were able to
cross-examine witnesses Cathy Lowe, Barbara Trivette, and
Jennifer Graham about seeing "a man walking along that road at
the time they would have seen the fire." Appellant contended
that he was prejudiced by not having the statement and that he
could not have discovered it before trial because he was unaware
of its existence.
The Commonwealth's Attorney told the trial court that he
gave appellant "every single piece of paper we had that had
anything that contained anything." The prosecutor argued that,
at most, the statement was evidence to impeach Pierce. He
asserted that the recently discovered statement was substantially
similar to the statement Pierce gave to Sheriff Taylor on March
8, 1994, in which Pierce said that he "passed a[n] old, red, loud
pick-up truck" that belonged to appellant. In the March 8, 1994
statement, Pierce said he was unable to see the driver of the
truck and he denied any involvement in or knowledge of the fire.
At the hearing, appellant offered two exhibits for
admission: a copy of Pierce's statement and a portion of the
transcript of the codefendant's trial containing the testimony of
Cathy Lowe, Barbara Trivette and Jennifer Graham. No witnesses
testified, and no further evidence was presented.
On appeal, appellant contends that because he was unaware of
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Pierce's statement, in which Pierce identified an unknown person
in the area at the time of the fire, he was unable to call
witnesses Lowe, Trivette, and Graham. Alternatively, appellant
contends that "it would have been senseless" to call these
witnesses to testify about the pickup truck and strange man
without having corroborative evidence from Pierce.
DISCOVERY VIOLATION: EXCULPATORY EVIDENCE
For a new trial to be granted based on the failure to
disclose exculpatory evidence, the nondisclosed evidence must be
material so as to create "a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682 (1985). It is well established that "no
constitutional right to discovery exists in a criminal case in
this Commonwealth," but due process requires the prosecution to
produce, upon request, evidence material to guilt or punishment
which is favorable to the accused. Keener v. Commonwealth, 8 Va.
App. 208, 212, 380 S.E.2d 21, 23 (1989) (citation omitted).
"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 v.
Commonwealth, 10 Va. App. 408, 420, 392 S.E.2d 836, 844 (1990).
See also Frye v. Commonwealth, 231 Va. 370, 383, 345 S.E.2d 267,
277 (1986).
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Evidence is exculpatory under Brady and, therefore
discoverable, if the defendant could have used it for impeachment
purposes. Bagley, 473 U.S. at 676; Robinson v. Commonwealth, 231
Va. 142, 150, 341 S.E.2d 159, 164 (1986); MacKenzie v.
Commonwealth, 8 Va. App. 236, 243, 380 S.E.2d 173, 177 (1989).
Because the statement could have been used to impeach Pierce's
testimony, it was exculpatory. However, even if evidence is
deemed exculpatory, a defendant is not entitled to new a trial
unless the evidence is material. See Humes v. Commonwealth, 12
Va. App. 1140, 1143, 408 S.E.2d 553, 555 (1991).
In determining whether undisclosed evidence is material, the
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,
593-94 (1987).
The suppression of evidence sought by
discovery amounts to a due process violation
only if it deprives the defendant of a fair
trial, and the conviction will be reversed
only if the evidence is material in the sense
that its suppression undermines confidence in
the outcome of the trial. Thus, failure to
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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 the
confidence in the outcome.
MacKenzie, 8 Va. App. at 244, 380 S.E.2d at 177 (citations
omitted).
Pierce did not come forward with any information until four
years after the fire. The undisclosed statement was merely one
of many denials by Pierce of any involvement in the fire. It was
substantially similar to the statement given to Sheriff Taylor in
that Pierce denied any knowledge of or involvement in the fire.
In both statements, he stated that he saw a loud, old truck. The
statements differed only in the fact that Pierce did not say that
the truck belonged to appellant in the undisclosed statement, and
he failed to mention a tall, long-haired, bearded man walking on
the road in the statement to Taylor.
Defense counsel possessed numerous statements made by Pierce
which contained falsehoods. In fact, Pierce readily admitted
lying to the authorities in prior statements. At trial, defense
counsel reviewed Pierce's preliminary hearing testimony and
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pointed out inconsistencies. Moreover, the fact finder was made
aware that he had a number of relevant criminal convictions which
further affected his credibility. Because appellant possessed
Pierce's statement to Taylor, he was able to sufficiently impeach
Pierce.
After examining the record and viewing the totality of
circumstances, we do not find that the undisclosed statement was
material so as to create "a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." Bagley, 473 U.S. at 682.
Accordingly, the trial court did not abuse its discretion in
refusing to grant a new trial based on a Brady violation.
Appellant also contends that the failure to disclose the
statement affected his ability to effectively use testimony from
other witnesses. A claim that the prosecution has caused the
defense to lose an opportunity to investigate and uncover
potentially exculpatory evidence must be supported by a showing
of bad faith. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988);
Tickel v. Commonwealth, 11 Va. App. 558, 563, 400 S.E.2d 534, 537
(1991). Appellant conceded at the hearing for a new trial that
the statement "was not intentionally withheld." Accordingly, he
cannot now allege the requisite bad faith to warrant review of
his claim of potentially exculpatory evidence.
NEWLY DISCOVERED EVIDENCE
"Motions for new trials based on
after-discovered evidence are addressed to
the sound discretion of the trial judge, are
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not looked upon with favor, are considered
with special care and caution, and are
awarded with great reluctance. . . . The
applicant bears the burden to establish that
the evidence (1) appears to have been
discovered subsequent to trial; (2) could not
have been secured for use at the trial in the
exercise of reasonable diligence by the
movant; (3) is not merely cumulative,
corroborative or collateral; and (4) is
material, and such as should produce opposite
results on the merits at another trial."
Hopkins v. Commonwealth, 20 Va. App. 242, 249, 456 S.E.2d 147,
150 (1995) (en banc) (quoting Stockton v. Commonwealth, 227 Va.
124, 149, 314 S.E.2d 371, 387, cert. denied, 469 U.S. 873
(1984)). See also Odum v. Commonwealth, 225 Va. 123, 301 S.E.2d
145 (1983).
"'The applicant for a new trial must set forth in affidavits
facts showing what his efforts were to obtain the evidence and
explaining why he was prevented from securing it.'" Yeager v.
Commonwealth, 16 Va. App. 761, 768, 433 S.E.2d 248, 252 (1993)
(quoting Fulcher v. Whitlow, 208 Va. 34, 38, 155 S.E.2d 362, 365
(1967)); see also Yarborough v. Commonwealth, 15 Va. App. 638,
647, 426 S.E.2d 131, 136 (1993) (finding that appellant failed to
file the required affidavits and that he failed to show that he
made any effort to discover the evidence he relied upon to obtain
a new trial), rev'd in part on other grounds, 247 Va. 215, 441
S.E.2d 342 (1994).
Appellant bore the burden of establishing that he could not
have discovered the statement through the exercise of due
diligence; however, he failed to file an affidavit or otherwise
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present evidence at the hearing to show that he exercised any
diligence in procuring the statement. The record does not show
that appellant interviewed Pierce or Hash or was prevented from
doing so. The record also indicates that the codefendants were
able to procure the statement three weeks after appellant's
trial. Thus, appellant failed to show that he could not have
acquired the statement through due diligence.
Moreover, as discussed above, the statement was not material
such that its disclosure would have produced a different outcome.
Accordingly, the trial court did not abuse its discretion in
denying a new trial based on after discovered evidence.
For the foregoing reasons, we affirm appellant's
convictions.
Affirmed.
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