                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Bumgardner
Argued at Richmond, Virginia


ANDRE VASHAWN CARTER, a/k/a DRE
                                           MEMORANDUM OPINION * BY
v.   Record No. 0076-98-4                   JUDGE LARRY G. ELDER
                                                JUNE 29, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                    Richard B. Potter, Judge

          James T. Maloney (Joseph D. Morrisey;
          Morrisey, Hershner & Jacobs, on brief), for
          appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Richard B. Campbell, Assistant Attorney
          General, on brief), for appellee.


     Andre Vashawn Carter (appellant), a juvenile when the

charged offenses occurred, appeals from his jury trial

convictions for first-degree murder, use of a firearm in the

commission of murder, robbery, and use of a firearm in the

commission of robbery.     On appeal, he contends the circuit court

(trial court) erroneously (1) denied his motion to quash the

indictments; (2) admitted evidence of appellant’s drug use and

involvement in a prior shooting; (3) denied his motion to

dismiss based on the Commonwealth’s failure to produce allegedly


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
exculpatory evidence; and (4) denied his motion for a new trial

based on the Commonwealth’s reference in closing argument to

evidence earlier ruled inadmissible.    For the reasons that

follow, we affirm appellant’s convictions.

                  1.   MOTION TO QUASH INDICTMENTS

     Appellant contends first that the trial court erred in

refusing to quash the indictments because he was not allowed to

present evidence at his preliminary hearing that he did not

commit the crimes charged.   He argues that this amounted to the

denial of a proper preliminary hearing and that the charges

should be remanded for a new preliminary hearing.    We hold that

the trial court committed no reversible error.

     Where an accused timely objects, the complete failure to

conduct a preliminary hearing for an offense for which an adult

accused of a crime has neither waived his right to a hearing nor

“been presented or indicted by a grand jury” is reversible

error.   Triplett v. Commonwealth, 212 Va. 649, 650-51, 186

S.E.2d 16, 16-17 (1972).   However, pursuant to Code

§ 16.1-269.1, which provides for the juvenile and domestic

relations district court to conduct a preliminary hearing for a

juvenile fourteen years of age or older charged with various

felonies, including capital murder, “[a]n indictment in the

circuit court cures any error or defect in any proceeding held

in the juvenile court except with respect to the juvenile’s


                                - 2 -
age.”       Code § 16.1-269.1(B), (E); see 1996 Va. Acts chs. 755,

914 (amending Code § 16.1-269.1 to add subsections (C), (D) and

(E) and providing that amendments apply “to offenses committed

and to records created and proceedings held with respect to

those offenses on or after July 1, 1996”).      Therefore, assuming

without deciding that the district court erred in restricting

appellant’s cross-examination of the witnesses and his right to

present evidence to prove that he did not commit the charged

crimes and, thus, erred in finding probable cause for capital

murder, appellant’s indictment in the circuit court cured those

defects. 1     Of course, the evidence produced at trial, which was

sufficient to support appellant’s capital murder conviction,

also supported the grand jury’s issuance of an indictment for

capital murder. 2

        For these reasons, we hold that the trial court committed

no reversible error in denying appellant’s motion to quash the

indictments.



        1
       We also note that the statute provides for consistent
results--if the district court had not found probable cause or
had terminated the proceedings by dismissal, the Commonwealth
would have been permitted under subsection (D) of the statute to
seek a direct indictment in circuit court without having to
start over in the district court. In contrast, if the
proceedings in juvenile court are terminated by nolle prosequi,
“the attorney for the Commonwealth may seek an indictment only
after a preliminary hearing in juvenile court.”
        2
       Appellant does not challenge the sufficiency of the
evidence to support any of his convictions.

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                  2.    EVIDENCE OF PRIOR BAD ACTS

     Generally, evidence tending to show an accused committed

prior crimes or bad acts is inadmissible for the purpose of

showing the accused committed the crime charged.     See Woodfin v.

Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380 (1988).

However, such evidence “may be admissible if introduced to prove

an element of the offense charged, or to prove any number of

relevant facts, such as motive, intent, agency, or knowledge.”

Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229,

234, aff’d, 17 Va. App. 248, 436 S.E.2d 193 (1993) (en banc).

An accused is not entitled “to have the evidence ‘sanitized’ so

as to deny the jury knowledge of all but the immediate crime for

which he is on trial.”    Scott v. Commonwealth, 228 Va. 519,

526-27, 323 S.E.2d 572, 577 (1984).     “In addressing the

admissibility of other crimes evidence the court must balance

the probative value of the evidence of the other offenses and

determine whether it exceeds the prejudice to the accused.      The

court’s weighing of these factors is reviewable only for clear

abuse of discretion.”    Pavlick v. Commonwealth, 27 Va. App. 219,

226, 497 S.E.2d 920, 924 (1998) (en banc) (citations omitted).

     Appellant contends that the trial court erred in admitting

evidence of his prior drug use. 3   We hold that appellant waived


     3
       Appellant also complains that the court improperly limited
his ability to elicit testimony about the drug use of the
Commonwealth’s witnesses. However, appellant’s assignment of

                                - 4 -
the right to object to admission of evidence of his prior drug

use by introducing similar evidence himself.       See Saunders v.

Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 639 (1970).        He

testified on direct examination that he smoked marijuana and

that marijuana-smoking was a “daily ritual” engaged in by

“[e]verybody” in the Baggett household.      Appellant’s counsel

also elicited testimony about appellant’s drug use from Sandy

Rapier.   This testimony did not constitute an attempt to rebut

the Commonwealth’s evidence regarding his drug use.       See McGill

v. Commonwealth, 10 Va. App. 237, 244, 391 S.E.2d 597, 601

(1990) (noting that cross-examination or attempt to rebut does

not waive previous objection).    Appellant concedes on brief that

he decided “to introduce similar evidence in his case-in-chief”

but contends that this was a “necessary adjustment” based on the

trial court’s rulings permitting introduction of such evidence

by the Commonwealth.   We disagree.      The rule that waiver results

from the introduction of similar evidence is clear.

     Appellant also contends that the trial court erred in

admitting evidence that he allegedly used the murder weapon to

shoot into an occupied vehicle on November 25, 1997, several


error asserts only that “the trial court erred in admitting
evidence of [appellant’s] prior bad acts”; it does not claim
that the court erred in preventing him from inquiring fully
about drug use by witnesses for the Commonwealth. Therefore, we
did not grant appellant an appeal on the latter issue, and we
may not consider it on appeal. See Rule 5A:12; Gilley v.
Commonwealth, 21 Va. App. 740, 743, 467 S.E.2d 312, 313 (1996).

                                 - 5 -
weeks before the instant offenses.     He argues that his prior use

of the weapon was too far removed and that use of the firearm to

commit the offense and appellant’s presence at the crime scene

were not at issue.   He challenges both the trial court’s

original ruling permitting the introduction of evidence that he

possessed and fired the weapon but excluding evidence that he

fired into an occupied vehicle and its subsequent ruling that he

“opened the door” to the Commonwealth’s cross-examining him

about whether he fired at an occupied vehicle.    Again, we hold

that the trial court committed no reversible error.

     “The [Virginia] Supreme Court has consistently upheld the

admission of evidence that the defendant committed an additional

crime when that evidence connects the defendant to the murder

weapon.”   Burley v. Commonwealth, 29 Va. App. 140, 144, 510

S.E.2d 265, 267 (1999) (in murder prosecution in which accused

“vigorously attacked any testimony linking him to the gun” until

just before his arrest, upholding admission of evidence of

separate murder committed by accused with same weapon more than

a month after charged offense occurred).    Applying this

principle in a recent case, we noted that

           [a]ny evidence that linked [the accused] to
           the weapon tended to make his guilt more
           probable. The more times he was found in
           possession and the closer the occasions were
           to the date of the murder, the more




                               - 6 -
          convincing the inference that he possessed
          it when [the victim] was killed.

Id. at 146, 510 S.E.2d at 268.

     Here, although the record contains direct testimony from

Khalif Rodriguez that he saw appellant shoot the victim and

statements from other witnesses that appellant admitted the

shooting to them, counsel for appellant implied in his opening

statement and cross-examination of the Commonwealth’s witnesses

that the murder weapon, which was found in Michael Baggett’s

room and did not have appellant’s fingerprints on it, did not

belong to appellant and that Rodriguez and the other witnesses

were lying to protect Rodriguez or Baggett.    Here, as in Burley,

appellant’s possession and use of the murder weapon within

several weeks of the murder clearly was probative of whether

appellant owned the gun and was the criminal agent in the

victim’s murder. 4   Therefore, the challenged evidence in

appellant’s case is less prejudicial than the challenged

evidence in Burley, which proved Burley guilty of murder, the

same offense for which he was on trial.    Here, as in Burley, we

hold that the probative value of the evidence regarding the



     4
       Further, the trial court ruled that evidence that
appellant possessed and fired the weapon on November 25, 1996,
would be admitted but that the most prejudicial evidence
regarding appellant’s behavior that day, that he actually shot
at an occupied vehicle, would not be admitted, and it did not
change its ruling until appellant “opened the door” to further
inquiry. See infra footnote 6.

                                 - 7 -
prior shooting was greater than any prejudice resulting from its

admission. 5

     Appellant also contends that the trial court erred in

allowing the Commonwealth to go beyond the court’s earlier

ruling and to cross-examine appellant about his shooting at an

occupied vehicle.   For the reasons discussed above, we hold that

the admission of evidence that appellant shot at an occupied

vehicle did not constitute an abuse of discretion. 6

     For these reasons, we hold that the trial court did not

abuse its discretion in admitting evidence of the November 25,

1996 shooting.

                    3.   EXCULPATORY STATEMENTS

     The Due Process Clause of the United States Constitution

requires the Commonwealth to disclose to a criminal defendant



     5
       In Burley, the trial court gave a cautionary instruction,
which reduced the prejudice resulting from admission of the
other crimes evidence. Here, appellant did not request a
cautionary instruction.
     6
       Further, we hold that the trial court did not abuse its
discretion in ruling that appellant opened the door to such
cross-examination when he took the stand and testified that he
was “shocked and confused” when he thought Baggett or Rodriguez
had shot someone at the rest stop from the car. After such
testimony, the Commonwealth was entitled to explore what aspect
of that behavior supposedly shocked appellant and why. When
appellant answered yes to the Commonwealth’s question, “It
shocked you that a gun would be fired from your car at another
human being?” the Commonwealth was entitled to question first
appellant and later Justin Velize about the November 25, 1996
incident in which appellant allegedly shot at an occupied
vehicle.

                               - 8 -
exculpatory or favorable evidence and provides that failure to

disclose such evidence may require reversal where that evidence

is material to either guilt or punishment, “irrespective of the

good faith or bad faith of the prosecution.”     Soering v. Deeds,

255 Va. 457, 464, 499 S.E.2d 514, 517 (1998); see Lowe v.

Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977).

Exculpatory evidence includes evidence that impeaches the

credibility of a witness for the Commonwealth.     See Robinson v.

Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986).

     Exculpatory 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 confidence in the outcome [of the

trial].’”    Taitano v. Commonwealth, 4 Va. App. 342, 349, 358

S.E.2d 590, 593-94 (1987) (citations omitted).    In addition, 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].’”

Id. at 349, 358 S.E.2d at 594 (citation omitted).    This test

requires that the effect of the suppressed evidence be

considered collectively.    See Kyles v. Whitley, 514 U.S. 419,


                                - 9 -
436, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995).    No Brady

violation occurs where defense counsel knew about exculpatory

evidence “in sufficient time to make use of [it] at trial.”

Read v. Virginia State Bar, 233 Va. 560, 564, 357 S.E.2d 544,

546 (1987).

     We hold, under the totality of the circumstances, that

appellant received all exculpatory evidence in time to use it

effectively at trial and that no reasonable probability exists

that the outcome would have been different if the Commonwealth

had disclosed the more detailed witness statements prior to

trial.   The challenged statements had value only as impeachment

evidence and did not indicate that appellant did not commit

capital murder.   The record reflects that appellant made no

request for a continuance at any time during the trial.    It also

reflects that the trial court granted all recesses appellant

requested to allow him to examine the disputed statements and

granted all requests to recall witnesses for further

cross-examination based on those statements.

     Appellant received a brief summary of Rodriguez’s pretrial

statements before trial and received the actual statements

before cross-examining him; appellant was able to cross-examine

him thoroughly about any claimed inconsistencies. 7   Although


     7
       Appellant contends that a handwritten and handcorrected
statement made by Rodriguez on January 8, 1997, was never
produced at appellant’s trial but was introduced at Rodriguez’s

                              - 10 -
appellant received Rodriguez’s letters to Albert Richardson

after Rodriguez had testified, appellant did not ask to recall

Rodriguez to cross-examine him about the statements.   Appellant

recalled Baggett after receiving his two pretrial statements and

had an opportunity to cross-examine him fully.   Regarding Stacey

Jones’ statement, although appellant received the statement

after Christopher Payne testified, appellant did not ask to

recall Payne for further cross-examination, and appellant simply

read Jones’ statement into the record rather than calling Jones

to testify.   Appellant also chose to follow the same procedure

with the statements of Eva McDonnell and Edward James Wesley.

Finally, appellant was aware before trial that Vincent “Speedy”

Williams had said Baggett reported being in the restroom at the

time of the murder, and appellant was able to cross-examine

Williams about this statement at trial. 8


subsequent trial. The record on appeal indicates, however, that
this statement was part of Commonwealth’s exhibit 19A, which,
although not admitted at trial, was reviewed at trial by counsel
for appellant.
     8
       Appellant also challenges the Commonwealth’s failure to
produce the pretrial statement of Williams at any stage of the
proceedings. We hold that appellant failed to take the
necessary steps to present a complete record of this issue for
review on appeal. See, e.g., Ferguson v. Commonwealth, 10 Va.
App. 189, 194, 390 S.E.2d 782, 785 (noting general duty of
appellant to furnish complete record), aff'd in part and rev'd
in part on other grounds, 240 Va. ix, 396 S.E.2d 675 (1990). He
neither obtained a copy of the statement, if one exists, for
inclusion in the record on appeal nor furnished evidence that he
took the necessary steps to obtain the statement from an entity
that had actual or constructive possession of it.

                              - 11 -
     Finally, the record reflects that appellant had actual or

constructive knowledge of the bulk of these witnesses’ allegedly

inconsistent statements before he took the stand.   He had

Baggett’s first statement, the statements of Rodriguez and

Jones, and summaries of the statements of Williams and McDonnell

before he testified in his own behalf.




     Reasonable inferences from the record indicate that the
Naval Criminal Investigative Service (NCIS) questioned Williams
when the ship aboard which he was stationed docked in San Diego
in April 1997. When the Commonwealth attempted to question
Williams further at trial about having made such a statement to
NCIS, appellant objected, and more detailed testimony was not
allowed.
     No evidence establishes that the Commonwealth had a copy of
this statement. Compare White v. Commonwealth, 12 Va. App. 99,
101-05, 402 S.E.2d 692, 694-96, aff’d, 13 Va. App. 284, 410
S.E.2d 412 (1991) (en banc) (remanding to trial court to receive
and review exculpatory confession of co-defendant where
prosecutor had told defense counsel he had the confession but
refused to produce more than a summary of it). Further, the
record makes clear that appellant knew about the statement
before the trial was over, but he did not request a continuance
to attempt to subpoena the statement from NCIS and did not
attempt to subpoena the statement from NCIS after trial.
     After trial, appellant moved the court to conduct an
in camera review of the Commonwealth’s files for exculpatory
information not produced, but the court denied the motion.
Although the Commonwealth said it would not object to the
court’s sealing a particular undisclosed statement for
transmission with the appellate record, appellant did not
specifically ask the court to employ such a procedure.
     Because appellant failed to take necessary steps to make
Williams’ statement, if one exists, available for our review on
appeal, we are unable to determine whether it contained
additional exculpatory evidence, beyond what the Commonwealth
provided in summary form before trial, which would have
established a reasonable probability of a different outcome at
trial.


                             - 12 -
     Appellant did not have Baggett’s second statement or the

statement of Wesley until after he testified.   However, Wesley’s

statement that Baggett was in the bathroom during the murder was

merely cumulative of the pretrial statements of McDonnell and

Williams, and appellant had received summaries of those

statements prior to trial.   Therefore, we hold that appellant’s

earlier receipt of Wesley’s statement would not materially have

affected his decision to testify.   We also conclude that

appellant’s earlier receipt of Baggett’s second statement would

not materially have affected his decision to testify. 9

     Finally, reviewing all late disclosed evidence as a whole,

we conclude that no reasonable probability exists that the

outcome of trial would have been different if the Commonwealth

had disclosed the disputed witness statements prior to trial.




     9
       Assuming without deciding that appellant’s brief
accurately characterizes Baggett’s pretrial statements and trial
testimony, the Commonwealth’s prior answers to appellant’s
discovery request and Baggett’s first statement to
police--provided to appellant before appellant took the
stand--contained all the information necessary for appellant to
conclude that nine of the thirteen pretrial statements listed in
his brief were inconsistent with Baggett’s trial testimony. The
only alleged inconsistencies which could not have come to light
until appellant received Baggett’s second statement were listed
in appellant’s brief as (h), (k), (l) and (m). However, our
careful review of the record indicates that these four alleged
inconsistencies either were not actually inconsistent with
Baggett’s trial testimony or were insufficient to establish a
reasonable probability that the outcome of the trial would have
been different had they been disclosed before appellant
testified in his own behalf.

                              - 13 -
            4.   EVIDENCE REFERENCED IN CLOSING ARGUMENT

     Lastly, appellant contends that the trial court erred in

not granting his motion for mistrial after the Commonwealth’s

attorney referred in closing argument to evidence ruled

inadmissible.    We hold that this argument is procedurally

barred.   Although the prosecutor referred to the challenged

testimony twice during closing argument, counsel for appellant

waited until after the jury retired to move for a mistrial.

Under settled principles, the motion was untimely and the trial

court properly denied it.    See Cheng v. Commonwealth, 240 Va.

26, 39, 393 S.E.2d 599, 606 (1990) (holding that “[a] motion for

a mistrial [based on the prosecutor’s improper comments or

conduct during argument] is untimely and properly refused when

it is made after the jury has retired”).

     For these reasons, we hold that the trial court did not err

in denying appellant’s motion to quash the indictments,

admitting evidence of appellant’s prior bad acts, or denying

appellant’s motion to dismiss and motion for a new trial.

Accordingly, we affirm appellant’s convictions.

                                                           Affirmed.




                               - 14 -
