                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Willis and
          Senior Judge Overton
Argued at Alexandria, Virginia


ANTHONY RUMONT ROBERTS
                                          MEMORANDUM OPINION * BY
v.   Record No. 0322-00-4                 JUDGE NELSON T. OVERTON
                                              FEBRUARY 6, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                       James L. Berry, Judge

           Walter F. Green, IV, for appellant.

           Michael T. Judge, Assistant Attorney General
           (Mark L. Earley, Attorney General, on
           brief), for appellee.


     On appeal, Anthony Rumont Roberts (appellant) contends the

trial court erred in (1) refusing to set aside the verdicts due to

the Commonwealth's failure to provide exculpatory evidence and (2)

questioning two jurors in camera midtrial without his being

present.   Finding no error, we affirm.

                             BACKGROUND

     On March 1, 1997, a jury found appellant guilty of the

September 12, 1996 murder of Kathy Hartley.   The jury also found

appellant guilty of feloniously and maliciously shooting into an

occupied vehicle and using a firearm in the commission of murder.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On July 25, 1997, prior to the imposition of sentence,

appellant argued for a new trial based on, inter alia, the

Commonwealth's failure to provide exculpatory information about

one of its witnesses and the trial court's in camera questioning

of two jurors during trial without appellant being present.

             FAILURE TO DISCLOSE EXCULPATORY EVIDENCE

     After the jury found appellant guilty, appellant learned

that Robert Moore, one of the witnesses at appellant's February

28, 1997 trial, had been arrested in Frederick County on June

27, 1996 for driving under the influence and speeding.       His

February 1997 trial on those charges was continued until a date

after appellant's trial.   At Moore's DUI trial, he was placed on

probation.   At the July 25, 1997 hearing, the prosecutor

conceded that knowledge of Moore's charges was properly imputed

to his office, however, he proffered that no one in his office

was aware of Moore's charges at the time.      The prosecutor

further represented that Moore never asked for, nor did anyone

give him, a deal or special treatment in exchange for his

testimony.   Appellant contends that withholding such evidence in

the possession of the Commonwealth required the trial court to

set aside the verdict and grant him a new trial.

     Due process requires the Commonwealth to disclose all

exculpatory evidence to an accused.      Allen v. Commonwealth, 20 Va.

App. 630, 637, 460 S.E.2d 248, 251 (1995) (citing Brady v.

Maryland, 373 U.S. 83 (1963)).    "Exculpatory evidence" is defined

                                 - 2 -
as evidence that is "material to guilt or punishment and favorable

to the accused," id., and includes impeachment evidence.   See

United States v. Bagley, 473 U.S. 667, 676 (1985); Robinson v.

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

Evidence is "material," and its nondisclosure justifies reversal

on appeal, 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."   Bagley, 473 U.S. at 682;

see Correll v. Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352, 358

(1987).    "'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 Bagley, 473 U.S.

at 682).   Therefore, appellant "must show that when the case is

evaluated in the context of the entire record, including the

omitted evidence, a jury would have entertained a reasonable

doubt" as to appellant's guilt.   Id.   "The mere possibility that

an item of undisclosed information might have helped the defense

. . . does not establish 'materiality' in the constitutional

sense."    United States v. Agurs, 427 U.S. 97, 109-10 (1976).

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"    Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

So viewed, the evidence proved that, around 6:30 p.m. on September

12, 1996, Willie Burns was driving a Ford Escort in which Hartley

                                - 3 -
was shot and killed while a front seat passenger.    Chansey Fasano

was a rear seat passenger in the car.

        Burns testified that he started dating Hartley about a month

before her death.    Prior thereto, she dated and lived with

appellant.    About two weeks before the murder, Burns was present

when Hartley told appellant she no longer wanted to be with him,

she wanted to be with Burns.    Burns explained how, on September

12, 1996, appellant recognized him driving Hartley and Fasano

through town and followed them in his white Mitsubishi 3000GT.

Burns tried to elude appellant, but was unable to do so.

Appellant followed Burns onto an entrance ramp to Interstate 81.

When appellant's car approached Burns' car from the right side,

Hartley yelled out that appellant had a gun.    Seconds later, Burns

heard a gunshot, and Hartley fell over beside him.

        Fasano corroborated Burns' account of how appellant followed

and chased them.    Fasano heard the fatal gunshot and saw Hartley

slump over onto Burns' shoulder.

        Carey Davis met and spoke with appellant in the afternoon on

the day of the murder.    Davis and Hartley conversed for a short

time.    When Davis indicated she had to go, appellant said, "'I

have got to find that crazy-ass Kathy.'"    Appellant also told

Davis, "'One of the these days I am going to kill that girl.'"

        A few days before the murder, appellant visited Susan French,

a special prosecutor for the City of Winchester.    French testified

that appellant was concerned that Hartley had become associated

                                 - 4 -
with persons dealing in illegal drugs and had again become

addicted to crack cocaine.   Appellant offered to work undercover.

French wrote down the information and said she would contact local

authorities.   French testified that appellant told her that

"[s]omebody had better get it under control" and that, "if

somebody didn't get it under control," and if "Kathy didn't get

off the drugs," appellant "was going to have to kill Kathy."

     Two days before the murder, James Jackson visited Hartley, a

former co-worker.   Appellant was present.   Jackson testified that

appellant "had a gun."    When Hartley walked Jackson to the door so

he could leave, appellant "[t]urned the gun" at Hartley.

     Douglas Delagaetano, a forensic scientist, tested evidence

collected from appellant's car by police.    He found gunshot

residue from samples taken from the steering wheel and on the

driver's side doorpost.

     Sometime before 10:00 p.m. on the day of the murder,

appellant left a note for his son at Melissa Thomas' house.     The

note read, in pertinent part,

          I leave you all my worldly belongings.
          Please be good and always remember not to be
          bad like me.

     The day after the murder, Robert Moore recognized a newspaper

photograph of the Escort driven by Burns, so he contacted

authorities to report an incident he witnessed the previous day

while driving.   He testified that, around 6:40 p.m. on September

12, 1996, a sports car resembling appellant's passed him on the

                                - 5 -
right shoulder of an interstate entrance ramp.    Moore described

the driver as a fair-skinned African-American man.    Once on the

highway, the car pulled behind a car resembling the one driven by

Burns.    Moore looked down at his dashboard, then "heard a pop."

Moore then saw the Escort swerve from the travel lane to the

shoulder and back while the car resembling appellant's car sped

away.

        Appellant has failed to prove there is a reasonable

probability that, had the evidence of the criminal charges against

Moore been disclosed to the defense, the result of the proceeding

would have been different.    See Bagley, 473 U.S. at 682.    Moore's

testimony was merely cumulative of the testimony of Burns and

Fasano.    Thus, absent Moore's testimony, we find the testimony of

Burns and Fasano, in conjunction with other evidence of

appellant's statements and conduct before and after the murder,

more than sufficient to prove beyond a reasonable doubt that

appellant was the murderer.    Accordingly, the trial court did not

err in denying appellant's motion for a new trial.

                    DENIAL OF RIGHT TO PUBLIC TRIAL

        After the presentation of evidence by both parties, the trial

court advised the parties that two jurors admitted knowing Eric

Roberts, appellant's brother and a witness for the defense.     When

he testified, they recognized him as a bus driver with whom they

were familiar.    The trial court agreed with defense counsel that

it should voir dire the two jurors before the jury began

                                 - 6 -
deliberating.   Appellant, through counsel, initially asserted that

he should be present when the trial court questioned the jurors.

However, the following colloquy then occurred between the trial

court and counsel:

          [DEFENSE COUNSEL]: Would the Court want to
          do it without us here and then tell us on
          the record what occurred? Do you think the
          [two] Jurors would be less intimidated by
          that? Perhaps that might be the best way to
          do it.

          THE COURT: I have no objection,
          particularly if you propose it, but –

          [DEFENSE COUNSEL]: I think I will propose
          it that way. I certainly trust Your Honor's
          ability to ask them the right questions and
          perhaps with nobody in the courtroom, it
          might be certainly less intimidating.

          [PROSECUTOR]:   I agree.

          [DEFENSE COUNSEL]:    I agree with that too.

The trial court advised counsel that it would notify them if it

appeared either juror's familiarity with the defense witness

presented "a problem" with their continuing to sit on the jury.

     The two jurors admitted knowing Eric Roberts through his

employment as a bus driver.    Both jurors indicated that they had

no personal or social relationships with Roberts, they were not

biased in any way against him, and they could judge his

credibility fairly and impartially.     After the in camera meeting

with the jurors, the trial court advised counsel, "Gentlemen, I

investigated the matter we discussed earlier and found no




                                - 7 -
difficulty."   Defense counsel thanked the trial court, after

which the trial court instructed the jury.

     Assuming that this was a critical stage of the proceedings,

appellant cannot now complain that the trial court erred when it

did as he requested through counsel.    "'No litigant, even a

defendant in a criminal case, will be permitted to approbate and

reprobate - to invite error . . . and then to take advantage of

the situation created by his own wrong.'"    Manns v.

Commonwealth, 13 Va. App. 677, 680, 414 S.E.2d 613, 615 (1992)

(quoting Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d

46, 54 (1988)).   See also Doe v. Simmers, 207 Va. 956, 960, 154

S.E.2d 146, 149 (1967).    Accordingly, the trial court did not

commit reversible error.

     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                                          Affirmed.




                                - 8 -
