Curtis Benjamin Harrell, III v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Ortiz and Raphael
UNPUBLISHED
Argued at Norfolk, Virginia
CURTIS BENJAMIN HARRELL, III
MEMORANDUM OPINION* BY
v. Record No. 0884-21-1 JUDGE JUNIUS P. FULTON, III
AUGUST 2, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Rufus A. Banks, Jr., Judge
Meghan Shapiro, Senior Assistant Public Defender (Virginia
Indigent Defense Commission, on briefs), for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Harrell appeals his convictions of driving after forfeiture of license, third offense within ten
years and misdemeanor eluding. Harrell claims that the trial court: (1) erred by denying his motion
to dismiss due to destruction of body-worn camera recordings and (2) erred by denying his motion
to strike where the evidence was insufficient to prove he was driving a car. Harrell also asks us to
reverse, overturn, or modify this Court’s precedent set in Gagelonia v. Commonwealth, 52 Va. App.
99 (2008), claiming that the ruling incorrectly applied United States Supreme Court precedent. We
affirm and reject the invitation to overturn existing precedent.
BACKGROUND
On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.”
Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v.
Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “discard the evidence of the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
accused in conflict with that of the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v.
Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26
Va. App. 335, 348 (1998)).
Harrell was arrested on September 5, 2019, for felony driving on a suspended license and
eluding. His arrest followed an attempted traffic stop in Chesapeake. Chesapeake Police Officers
Sawatzke and Weeks observed a black Ford Mustang, checked its license plate, and discovered that
it was “inactive.” Despite initiating their blue lights and sirens, the driver did not stop. The officers
testified that the only occupant was the driver who was male with neck tattoos, a black hat, and a
blue shirt. The vehicle turned onto Beechdale, and the officers lost sight of it. When they
approached the intersection of Beechdale and Avondale, the officers saw the vehicle abandoned.
Nearby, the officers saw Harrell, with neck tattoos and dressed consistently with their earlier
observations, sitting on a porch where he was “breathing heavily” and “sweating.” The officers
arrested Harrell.
On August 21, 2020, defense counsel sent its order for discovery and inspection to the
Commonwealth and subsequently filed a copy with the trial court. The discovery requested, in part,
body camera footage from the incident. On October 9, 2020, the Commonwealth responded to
Harrell’s discovery requests and therein acknowledged the existence of body camera footage and
that it was “requested” from the police department and would be produced upon receipt. When the
Commonwealth followed up with the police department after it had not received the body camera
footage by December 2020 it was informed that there was no body camera for either officer because
“it has been 13 months and hadn’t been properly preserved, so it deleted automatically from the
system.”
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At trial, Harrell moved to dismiss the charges based on the prejudice incurred from the
Commonwealth’s failure to preserve the recordings. Harrell also moved to strike the
Commonwealth’s evidence as insufficient to prove that Harrell was driving the car. The trial court
denied both motions. In denying the motion to dismiss, the trial court concluded that “not only did
the Commonwealth not act in bad faith, the defendant failed to establish grounds for dismissal.”
This appeal follows.
ANALYSIS
I. Harrell’s due process claim fails to satisfy Gagelonia.
Constitutional issues present questions of law reviewed de novo on appeal. Wallace v.
Commonwealth, 65 Va. App. 80, 88 (2015), aff’d mem., 292 Va. 1 (2016). To the extent such
review involves underlying factual findings, those findings may not be disturbed unless “plainly
wrong” or “without evidence to support them.” Wilkins v. Commonwealth, 292 Va. 2, 7 (2016).
“[T]here is no general constitutional right to discovery in criminal cases.” Martinez v.
Commonwealth, 42 Va. App. 9, 26 (2003). However, the Due Process Clause of the Fourteenth
Amendment requires that criminal prosecutions comport with “prevailing notions of fundamental
fairness,” long interpreted by our courts to afford criminal defendants a meaningful opportunity
to present a complete defense. California v. Trombetta, 467 U.S. 479, 485 (1984). Thus “a
defendant is entitled to exculpatory evidence in the possession of the prosecution.” Martinez, 42
Va. App. at 26. Under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, “due process
requires that the prosecution disclose evidence favorable to the accused that is material to guilt or
punishment.” Church v. Commonwealth, 71 Va. App. 107, 117 (2019) (citing Commonwealth v.
Tuma, 285 Va. 629, 634 (2013)).
As this Court noted in Gagelonia, Brady and its progeny pertain to exculpatory evidence
still in the government’s possession, of which the exculpatory value is known while Trombetta
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and Arizona v. Youngblood, 488 U.S. 51 (1988), pertain to circumstances such as those
implicated in this case, where the evidence is no longer in the government’s possession.
Gagelonia, 52 Va. App. at 114. In Gagelonia, this Court synthesized Trombetta and Youngblood
and observed that:
a defendant seeking a new trial on the basis of missing evidence
formerly in the Commonwealth’s possession must show that
(1) the evidence possessed an apparent exculpatory value, (2) the
defendant could not obtain comparable evidence from other
sources, and (3) the Commonwealth, in failing to preserve the
evidence, acted in bad faith.
Id. at 115.
At trial, the parties agreed that the exculpatory nature of the videos was unknown and that
there was no “deliberately formed ill will” on behalf of the Commonwealth in deleting the
footage. Now, on appeal, Harrell argues that the exculpatory nature of video footage was
“apparently exculpable” rather than “potentially useful” at the time of destruction and that the
failure of the police department to follow proper policy after the videos were requested should
constitute bad faith. The Commonwealth challenges these arguments as not being properly
preserved under Rule 5A:18. In response, Harrell argues that the ends of justice exception
warrants this Court’s consideration of his new arguments. We disagree. Harrell, like any other
appellate litigant, must follow the rules of this Court. He may not approbate and reprobate his
positions just because it suits him and his appeal. Rowe v. Commonwealth, 277 Va. 495, 502
(2009) (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181 (2006)). Further, “‘[t]he ends of
justice exception is narrow and is to be used sparingly,’ and applies only in the extraordinary
situation where a miscarriage of justice has occurred.” Holt v. Commonwealth, 66 Va. App. 199,
209 (2016) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220-21 (1997)). Under these
circumstances, Harrell’s arguments do not rise to the level of justifying application of the ends of
justice exception.
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Further, this Court finds Harrell’s argument that the video was apparently exculpatory at
the time of destruction to not only be new, but speculative.1 As in cases involving untested DNA
evidence, Harrell raises no more than the possibility that the footage would have exculpated him.
See Lovitt v. Warden, 266 Va. 216, 241 (2003) (making clear that “the possibility that evidence
could have exculpated a defendant depending on future testing results is not enough to satisfy the
constitutional standard of materiality”). The evidence was, as the parties agreed at trial,
potentially exculpatory. As in Gagelonia, Harrell did not show that the video had “apparent
exculpatory value” at the time of destruction.2 Gagelonia, 52 Va. App. at 115.
Further, Harrell cannot establish bad faith. “[U]nless a criminal defendant can show bad
faith on the part of the police, failure to preserve potentially useful evidence does not constitute a
denial of due process.” Youngblood, 488 U.S. at 58. Although the destruction of body-worn
camera recordings was certainly unfortunate, that is not the test. Bad faith must exist. At the
trial court, defense counsel conceded that there was no bad faith by the police department. On
appeal, Harrell argues that the police department’s failure to follow its own procedure constitutes
bad faith. In addition to being a newly raised argument on appeal, the record does not include
enough information for this Court to properly review that issue. The record does not include a
copy of the policy at issue to establish a deviation. To the contrary, the evidence in the record
1
At trial, defense counsel characterized the video as “potentially exculpatory evidence,
but we don’t know [its value] because it is no longer with us to be considered.”
2
As to Harrell’s second assignment of error, we decline the invitation to overturn
Gagelonia. Such a decision would have to be made by this Court en banc. Congdon v. Congdon,
40 Va. App. 255, 265 (2003) (“Under Virginia law, a decision of one panel ‘becomes a predicate for
application of the doctrine of stare decisis’ and cannot be overruled except by the Court of Appeals
sitting en banc or by the Virginia Supreme Court.” (citing Johnson v. Commonwealth, 252 Va. 425,
430 (1996))). Although this panel could move sua sponte for an en banc hearing, we decline to do
so as the facts in this case do not justify such action nor is scrutiny of Gagelonia necessary to
resolve this matter. We do not, however, deem Harrell’s request as waived by Rule 5A:18 as the
trial court would not have had the discretion or ability under principles of stare decisis to
unilaterally overturn Gagelonia.
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reveals that the recordings are automatically deleted after thirteen months. If Harrell wanted to
challenge that representation or reveal a more complete picture of what the actual procedure
should have been, Harrell could have presented additional evidence at trial. Consequently, we
are unable to address this argument as appellate courts “may act only upon facts contained in the
record.” Jackson v. Commonwealth, 44 Va. App. 218, 224 (2004). “[A]n appellate court’s
review of the case is limited to the record on appeal.” Turner v. Commonwealth, 2 Va. App. 96,
99 (1986); see also, e.g., Wilkins v. Commonwealth, 64 Va. App. 711, 717 (2015). “[F]ailure to
furnish a sufficient record will result in an affirmance of the judgment appealed from.” Woods v.
R.D. Hunt & Son, Inc., 207 Va. 281, 287 (1966).
Because of the lack of evidence in the record to scrutinize adherence to police policy, this
Court cannot and does not analyze whether there was a deviation in police policy let alone
whether such deviation constitutes bad faith. Instead, this Court—consistent with Gagelonia—is
left to decide whether the evidence establishes that the Commonwealth acted in bad faith. Without
clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with
a presumption that the law was correctly applied to the facts. Yarborough v. Commonwealth, 217
Va. 971, 978 (1977). And here—in addition to the concession of defense counsel at trial that there
was no bad faith—we find that there is no evidence in the record to support a finding of bad faith.
So for this reason too, Harrell’s claim fails under Gagelonia.
Given our findings that the evidence was not apparently exculpatory and the lack of bad
faith, this Court finds it unnecessary to address whether Harrell could have obtained comparable
evidence from other sources.
II. Sufficient evidence existed for the trial court to deny the motion to strike.
Harrell argues that the evidence was insufficient to prove that he was the driver of the
elusive car.
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“On review of the sufficiency of the evidence, ‘the judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Ingram v. Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v.
Commonwealth, 296 Va. 450, 460 (2018)). “The question on appeal, is whether ‘any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
Id. (quoting Yoder v. Commonwealth, 298 Va. 180, 182 (2019)). “If there is evidentiary support
for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.’” Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App.
273, 288 (2017)).
At trial, Officers Sawatzke and Weeks testified about the events leading up to Harrell’s
arrest. They testified about the attempted traffic stop of a Ford Mustang with “GET AT ME” plates,
which resulted in a police chase. They both testified that they observed the driver and sole occupant
of the vehicle to be male with neck tattoos, a blue hat, and black shirt. Although they briefly lost
sight of the vehicle, the officers proceeded in the same general direction until they found it
abandoned. The officers then testified that they saw Harrell nearby with neck tattoos and dressed as
observed earlier, “breathing heavily” and “sweating.” The officers, recognizing Harrell as the
driver, arrested him.
Considering these facts, there was evidentiary support for a reasonable finder of fact to
conclude that Harrell was the driver of the vehicle. Accordingly, the trial court’s ruling denying
appellant’s motion to strike was not plainly wrong or without evidentiary support.
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CONCLUSION
Because we find no bad faith on behalf of the Commonwealth and that the evidence was
sufficient to convict Harrell, the circuit court’s ruling is affirmed.
Affirmed.
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