                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia


JEROME MOSES THORNTON
                                           MEMORANDUM OPINION * BY
v.   Record No. 2579-99-1                   JUDGE LARRY G. ELDER
                                              DECEMBER 5, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Johnny E. Morrison, Judge

          S. Jane Chittom, Appellate Counsel (Public
          Defender Commission, on brief), for
          appellant.

          Robert H. Anderson, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Jerome Moses Thornton (appellant) appeals from his bench

trial conviction for the unlawful wounding of James Cary in

violation of Code § 18.2-51. 1   On appeal, he contends the trial



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Appellant originally was indicted for malicious wounding
in violation of Code § 18.2-51. The order of conviction recites
that the court found him guilty of the lesser-included offense
of unlawful wounding in violation of Code § 18.2-51. The
sentencing order, however, purports to indicate that appellant
was convicted for malicious wounding and cites an unrelated code
section, § 18.2-250, which proscribes the possession of certain
controlled substances. The trial transcript makes clear that
the trial court "[found] [appellant] guilty of unlawful
wounding," as confirmed by the conviction order and agreed upon
by the parties. Therefore, we remand the matter to the trial
court erroneously (1) denied his mistrial motion based on the

Commonwealth's failure to disclose the existence of a knife,

which he contends was material, exculpatory evidence; (2) denied

his motion for a continuance to secure testimony concerning the

previously undisclosed exculpatory evidence; and (3) held the

evidence sufficient to support his conviction given impeachment

of victim Cary and appellant's claim of self-defense.   We hold

the evidence did not establish the Commonwealth should have

known the existence of the knife or the location from which it

was seized was exculpatory evidence.    Further, the evidence

established that a diligent defense attorney would have been

aware of the existence and seizure of the knife prior to trial.

Because no discovery or due process violation occurred, the

trial court did not abuse its discretion in denying the mistrial

and continuance motions.   Finally, Cary's testimony was not

inherently incredible, and that testimony, along with the

physical evidence, was sufficient to support appellant's

unlawful wounding conviction.   Therefore, we affirm the

conviction.




court for the sole purpose of correcting the clerical errors in
the sentencing order. See Tatum v. Commonwealth, 17 Va. App.
585, 592, 440 S.E.2d 133, 138 (1994); see also Code
§ 8.01-428(B).

                                - 2 -
                                 A.

                 MISTRIAL AND CONTINUANCE MOTIONS

     Whether to grant a motion for a mistrial or for a

continuance rests within the discretion of the trial court.

See, e.g., Novak v. Commonwealth, 20 Va. App. 373, 391-92, 457

S.E.2d 402, 410-11 (1995).   Denial of either motion will be

reversed on appeal only upon a showing that the trial court

abused its discretion and that the party was prejudiced as a

result.   See id. at 391-92, 457 S.E.2d at 411.   "A court must

not exercise its discretion in a manner which would deny an

accused . . . sufficient time to investigate and evaluate the

evidence in preparation for trial."     Lomax v. Commonwealth, 228

Va. 168, 172, 319 S.E.2d 763, 765 (1984).

     "[T]he suppression 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, 83 S. Ct. 1194, 1196-97, 10

L. Ed. 2d 215 (1963).   "[I]nformation known to the police is

information within the Commonwealth's knowledge[,] and the

prosecutor is obliged to disclose [it] regardless of the state

of his actual knowledge."    Moreno v. Commonwealth, 10 Va. App.

408, 418, 392 S.E.2d 836, 842-43 (1990).    A Brady violation

occurs when the prosecution fails to disclose material


                                - 3 -
exculpatory evidence within its exclusive control.     See Lugo v.

Munoz, 682 F.2d 7, 9 (1st Cir. 1982), cited with approval in

United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990).

However, Brady is not violated "'if the evidence in question is

available to the defendant from . . . sources [other than the

government],'" Wilson, 901 F.2d at 380 (quoting United States v.

Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)), and would have

been "readily available to a diligent defense attorney" through

those other sources, Lugo, 682 F.2d at 9; cf. Coleman v.

Commonwealth, 27 Va. App. 768, 773-76 & n.2, 501 S.E.2d 461,

463-65 & n.2 (1998) (in case not implicating Brady because

evidence was not exculpatory, holding that defendant waived

statutory right to have Commonwealth furnish him with copy of

certificate of analysis it planned to introduce at trial because

defendant requested copy in discovery motion, agreed to appear

in Commonwealth's Attorney's office to receive items requested,

and never appeared in office to complete discovery).    "'The

purpose of the Brady rule is . . . to assure that [the

defendant] will not be denied access to exculpatory evidence

known to the government but unknown to him.'"   Lugo, 682 F.2d at

10 (quoting United States v. Ruggiero, 472 F.2d 599, 604 (2d

Cir. 1973)).

     In appellant's case, the defense requested all exculpatory

material, and the Commonwealth responded that "no exculpatory


                              - 4 -
evidence in this case is known to the Commonwealth."      The

Commonwealth's attorney was charged with the knowledge of all

police in the jurisdiction involved in the case, and he admitted

he was unaware, prior to trial, of the existence of the second

knife or what Officer Jones would say about its seizure.

However, the existence of the knife was not inherently

exculpatory, and nothing in the record indicates the

Commonwealth should have been aware prior to trial that

appellant was proceeding on a theory of self-defense. 2    Thus, no

evidence established that the Commonwealth's lack of awareness

led to a discovery or due process violation.

     Assuming the second knife was seized by Officer Jones in

connection with this case--a reasonable assumption given its

presence in the evidence bag and the testimony of Officer

Milteer that he did not seize the knife--no evidence either

previously admitted or proffered to the trial court at the time

of appellant's mistrial and continuance motions established that

the existence of the knife or the location from which Jones

seized it was exculpatory.   The victim had testified that he was

unarmed during the altercation.   If Jones, by way of example,

had told the Commonwealth's attorney he seized the second knife


     2
       Not until appellant's mistrial motion and case-in-chief
did his theory of the case become clear, and no evidence ever
established what Officer Jones would have said about his seizure
of the knife.

                               - 5 -
from appellant's room along with the meat cleaver or hatchet

appellant used to cut the victim, the Commonwealth would have

had no reason to believe the second knife was exculpatory and,

therefore, no duty to reveal its existence or the location from

which it was seized in response to the request for exculpatory

evidence.

     Because appellant failed to establish at the time he moved

for the mistrial and continuance that the existence of the knife

or the location in which it was found was exculpatory or that

the Commonwealth should have known it may have been exculpatory

under appellant's theory of the case, the trial court did not

abuse its discretion in denying the motions.

     Further, no reversible error occurred because the substance

of the evidence, if it was exculpatory, was "readily available

to a diligent defense attorney" through sources other than the

government.   Lugo, 682 F.2d at 9; Wilson, 901 F.2d at 380.

Appellant himself testified that Cary began the altercation by

threatening appellant with a pocketknife.    Defense witness

Barker testified that he told one of the officers at the scene

that Cary threatened appellant with a knife and that Barker

observed one of the officers seize this knife from Cary's pocket

at the scene. 3   A diligent defense attorney would have been aware


     3
       To the extent this testimony could be considered an
informal proffer of Officer Jones' expected testimony, it was

                                - 6 -
of these representations prior to trial, would have taken

advantage of the opportunity under the discovery order to view

the Commonwealth's tangible evidence, cf. Coleman, 27 Va. App.

at 773-76, 501 S.E.2d at 463-65, and, upon discovering the

second knife in the evidence bag, would have taken steps to

obtain further information about it--by questioning the

Commonwealth's attorney about the knife, arranging to speak to

Officer Jones about the knife, or at least refusing to stipulate

to the chain of custody of the evidence or subpoenaing Officer

Jones to assure his availability for trial.

     Under these circumstances, a diligent defense attorney

should have had ample time to obtain and use this information in

preparing for trial.   Therefore, we hold the trial court did not

abuse its discretion in denying the mistrial or continuance

motions.

                                B.

                   SUFFICIENCY OF THE EVIDENCE

     When considering the sufficiency of the evidence on appeal

in a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.   See Higginbotham v.



offered and admitted only after the trial court had denied
appellant's mistrial and continuance motions, and appellant did
not renew the motions after this informal proffer was made.
Therefore, the trial court had no duty to revisit the issue.

                               - 7 -
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).     The

conclusions of the fact finder on issues of witness credibility

may be disturbed on appeal only if this Court finds that the

witness' testimony was "inherently incredible, or so contrary to

human experience as to render it unworthy of belief."     Fisher v.

Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984).

     Appellant was charged with malicious wounding and convicted

for the lesser-included offense of unlawful wounding.    Code

§ 18.2-51 provides:

               If any person maliciously shoot, stab,
          cut, or wound any person or by any means
          cause him bodily injury, with the intent to
          maim, disfigure, disable, or kill, he shall,
          except where it is otherwise provided be
          guilty of a Class 3 felony. If such act be
          done unlawfully but not maliciously, with
          the intent aforesaid, the offender shall be
          guilty of a Class 6 felony.

If a wounding remains unlawful but results from "heat of

passion," such as rage or fear, rather than malice, it

constitutes unlawful wounding rather than malicious wounding.

See Miller v. Commonwealth, 5 Va. App. 22, 24-25, 359 S.E.2d

841, 842 (1987).    Finally, where the accused responds to a

threat of harm from another and "the amount of force [the

accused] use[s] [is] reasonable in relation to the harm

threatened," the accused may be acquitted based on self-defense.

See Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d

24, 25-26 (1989).


                                - 8 -
     Although appellant contends he should have been acquitted

based on self-defense, the evidence, viewed in the light most

favorable to the Commonwealth supports the trial court's finding

that appellant committed an unlawful wounding.    The undisputed

evidence established that appellant attacked and cut Cary with

an eleven-inch meat cleaver.   Cary testified that he did nothing

to provoke the attack and that he did not have a knife in his

possession during the altercation.     The trial court was entitled

to reject the testimony of Barker and appellant that it was Cary

who first brandished a knife and that appellant did not injure

Cary until after Cary threatened appellant with the knife.    The

mere fact that the police officers responding to the scene

recovered a knife that may have belonged to Cary did not compel

the conclusion, contrary to Cary's testimony, that Cary had the

knife in his possession or that he used it to threaten

appellant.   Finally, even if the trial court concluded that Cary

wielded a knife, the undisputed evidence established that Cary's

injuries were severe whereas appellant sustained no injuries.

These facts permitted the trial court to find that the amount of

force appellant used was not reasonable in relation to the harm

threatened, thereby justifying the trial court's rejection of

appellant's self-defense claim.

     For these reasons, we hold the trial court's denial of

appellant's mistrial and continuance motions was not erroneous


                               - 9 -
and that the evidence, viewed in the light most favorable to the

Commonwealth, was sufficient to support appellant's conviction

for unlawful wounding.   Therefore, we affirm the conviction.

However, due to the clerical errors in the sentencing order

regarding the offense for which appellant was convicted, see

supra footnote 1, we remand this matter to the trial court for

the sole purpose of amending the sentencing order to reflect

that appellant was convicted of unlawful wounding in violation

of Code § 18.2-51.

           Affirmed on the merits and remanded with instructions.




                              - 10 -
Benton, J., dissenting.

     I would hold that when the prosecutor disclosed for the

first time at trial evidence that had exculpatory value to

Jerome Moses Thornton, the trial judge abused his discretion by

refusing to grant Thornton's motion for a continuance.

                               I.

     In pertinent part, the grand jury indictment reads as

follows:

           [T]he accused,


                   JEROME H. THORNTON

                  1. Malicious Wounding

              On or about March 6, 1999, did unlawfully
           shoot, stab, cut, or wound, or cause bodily
           injury to [James] Cary with the intent to
           maim, disfigure, disable or kill.


              A Class 3 felony, in violation of [Code]
           § 18.2-51.

     The trial transcript and conviction order demonstrate that

the trial judge convicted Thornton of the offense of unlawful

wounding, a Class 6 felony.   I agree with the majority that the

trial judge's sentencing order erroneously states that the trial

judge convicted Thornton of "malicious wounding."   Thus, the

sentencing order contradicts the conviction order and,

furthermore, it erroneously references Code § 18.2-250, which

relates to controlled substances.   Unlike the majority, however,



                              - 11 -
I do not believe that these discrepancies are mere clerical

errors because the record does not establish that they are such.

Because these mistakes may well have influenced the sentence

itself, I believe that at a minimum we should vacate the

sentencing order and remand the matter for resentencing.

                               II.

      I believe, however, that the record requires us to reverse

the conviction and remand for a new trial.   At trial, the

complaining witness, James Cary, testified that Thornton struck

him without provocation, cutting and scarring the left side of

his face.    Cary denied attacking Thornton with a knife during

the incident and denied having a knife during the fray.    He

testified that "when [he] went to bed the next day, [he] got up,

felt in [his] pocket for [his] pocket knife, it was not there.

[He] didn't have no weapon on [him] at that time."

      Officer Milteer, who investigated the incident with Officer

Jones, testified that Officer Jones recovered a meat cleaver

from Thornton's room.   Officer Milteer testified that another

knife was seized during the investigation but he did not seize

it.   He said Officer Jones "recovered the evidence."   The

prosecutor did not call Officer Jones as a witness and stated

that Thornton's counsel had "stipulated to . . . the chain of

evidence."




                               - 12 -
     Thornton's counsel moved for a mistrial because the

prosecutor had affirmatively stated during discovery that "[n]o

exculpatory evidence in this case is known to the Commonwealth"

and had failed to disclose the second knife.   Opposing the

motion, the prosecutor informed the judge he was unaware the

knife was in the evidence bag.    The record contains a discovery

order requiring the prosecutor to provide to the defense "[a]ll

evidence or information in the possession or control of the

Commonwealth which tends to exculpate the defendant."   In

addition, Thornton's counsel informed the judge she had not

inspected the objects in the prosecutor's possession even though

the discovery order permitted her to do so.    Without stating a

reason, the trial judge denied Thornton's motion for mistrial.

Thornton's counsel then sought a "continuance, so that [she] at

least can have an opportunity to get Officer Jones here, so that

[she] can question him about this knife."   The trial judge

summarily denied that motion.    I would hold that the trial judge

abused his discretion in denying Thornton a continuance.

                                 III.

     "[T]he suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the

evidence is material . . . to guilt . . . , irrespective of the

good faith or bad faith of the prosecution."    Brady v. Maryland,

373 U.S. 83, 87 (1963).   Under Brady, "the individual prosecutor


                                - 13 -
has a duty to learn of any favorable evidence known to the

others acting on the government's behalf in the case, including

the police."     Kyles v. Whitley, 514 U.S. 419, 437 (1995).    The

existence of two knives in the evidence bag was more than

sufficient to alert the prosecutor in this case to the

reasonable probability that both men were armed and to make

inquiry of the officers concerning the source of the second

knife.

          [T]he Commonwealth is not relieved of the
          discovery responsibilities because it fails
          to make reasonable inquiry of the police
          concerning the evidence it will use to prove
          the case. The Commonwealth is charged with
          the responsibility to interview all
          government personnel involved in a case in
          order to comply with its discovery
          obligations.

Harrison v. Commonwealth, 12 Va. App. 581, 585, 405 S.E.2d 854,

857 (1991).    The existence of the two knives and the

prosecutor's interview of her witnesses would have reasonably

informed the prosecutor that evidence favorable to Thornton was

in her possession.

     As the majority opinion notes, Thornton's trial counsel is

not blameless in the matter.    The discovery order required the

prosecutor to "[p]ermit the defendant to inspect . . . tangible

objects . . . in the possession, custody, or control of the

Commonwealth."    Thornton's counsel failed to request an

opportunity to view the evidence file.    Despite that lapse,


                                - 14 -
however, the prosecutor's affirmative statement in writing prior

to entry of the discovery order that "[n]o exculpatory evidence

in this case is known to the Commonwealth" establishes a Brady

violation.

     Faced with these circumstances and the disclosure of this

evidence during the trial, the trial judge abused his discretion

in failing to grant Thornton's request for a continuance.    In so

doing, he adversely affected Thornton's opportunity to use this

evidence in his defense at trial.

             [A]lthough granting or denying a continuance
             is within the discretion of the trial court,
             it must exercise its discretion "with due
             regard to the provisions of the Bill of
             Rights, which secure to one accused of crime
             a fair and impartial trial; and to that end
             safe-guard his right 'to call for evidence
             in his favor.'" When a court has no reason
             to believe that a motion for a continuance
             is spurious, it should seriously consider
             whether a failure to grant the continuance
             may "imperil the just determination of the
             cause." . . . "An ideal system of laws would
             be one in which speedy justice is
             administered, but justice and not speed
             should be its paramount purpose."

Gilchrist v. Commonwealth, 227 Va. 540, 546, 317 S.E.2d 784, 787

(1984) (citations omitted).    "The very integrity of the judicial

system and public confidence in the system depend on full

disclosure of all the facts, within the framework of the rules

of evidence."     United States v. Nixon, 418 U.S. 683, 709 (1974).

When the evidence proves, as here, that "[t]he right to explore



                                - 15 -
and develop this evidence was critical to the defendant's case,"

the failure to grant his motion for a continuance is an abuse of

discretion.    Lomax v. Commonwealth, 228 Va. 168, 173, 319 S.E.2d

763, 766 (1984).

     The record established that the late disclosure of evidence

regarding the existence of the second knife and its seizure by

police from Cary prejudiced Thornton in the preparation of his

defense.   In the absence of Officer Jones' testimony concerning

the origin of the knife, the trial judge apparently disbelieved

the defense witness' testimony.   A defense witness, who lived in

the boarding house with the two men, testified that Thornton and

Cary "had words" and that Cary then swung at Thornton.   During

the ensuing tussle, Cary "took out a knife."   The witness

testified that later, when the police arrived, he told them Cary

had a knife.   He testified that a police officer removed the

knife from Cary's pocket.   The witness identified the knife

Officer Milteer displayed as Cary's knife.

     Thornton testified that Cary swung at him after Cary

mistakenly believed Thornton had commented on Cary's body odor.

Thornton testified that after they tussled he got away from Cary

and went outside.    When he returned, Cary came toward him with a

knife to stab him.   He testified that he cut Cary with a cleaver

while he was defending himself.




                               - 16 -
       After both parties presented their evidence, the trial

judge recalled Cary to the courtroom and asked if the knife was

his.   Cary said it was.   The trial judge expressly ruled,

however, that Cary's identification of the knife as his own was

"not evidence."    The judge then convicted Thornton of unlawful

wounding.

       Although Cary denied that he had a weapon during the fray,

Officer Milteer's testimony established that Officer Jones

seized this knife during their investigation immediately after

the altercation.   Apparently, appellant did not know Officer

Jones seized the knife and agreed to stipulate to the chain of

custody of the Commonwealth's evidence.     If Officer Jones had

been present at trial, he could have confirmed that he seized

the second knife from Cary in response to the witness'

contemporaneous report that Cary brandished the knife at

Thornton during their altercation.      Such testimony from a

witness with no known motive to fabricate would have

strengthened Thornton's claim of self-defense significantly and

would have given Thornton a much stronger base from which to

cross-examine Cary about his claim that he did not have the

knife in his possession and did nothing to provoke the fight

with Thornton.    Officer Jones' absence from the trial, a direct

result of the prosecutor's failure timely to disclose its




                               - 17 -
possession of exculpatory evidence, clearly prejudiced Thornton)

in the presentation of his defense.

     The trial judge could have cured this prejudice effectively

by granting Thornton's continuance request.   This was not a case

in which Thornton's testimony or trial strategy was at odds with

the undisclosed exculpatory evidence.    Moreover, nothing in the

record indicates that Thornton would have presented a different

theory of the case had he received advance notice of the

prosecutor's possession of Cary's knife.    Compare Conway v.

Commonwealth, 12 Va. App. 711, 716, 407 S.E.2d 310, 312-13

(1991) (en banc) (holding that late disclosure of taped

statement of accused in response to discovery order prejudiced

accused's defense and required mistrial because it was not

revealed to him until after he had testified at odds with

statement and it was used to impeach him), with Knight v.

Commonwealth, 18 Va. App. 207, 214-15, 443 S.E.2d 165, 169-70

(1994) (holding that late disclosure of accused's statement to

police did not require mistrial because it was not at odds with

his testimony and theory of the case).   The prejudice caused by

this late discovery could have been cured by granting Thornton's

request for a continuance to allow him to present testimony from

Officer Jones.   If necessary, Thornton's counsel could then also

have recalled Cary or Thornton for further examination prompted

by Officer Jones' testimony.


                               - 18 -
     At the conclusion of the evidence the trial judge ruled

"the Court is of the opinion that malicious wounding should be

reduced to unlawful wounding; therefore, the Court finds you

guilty of unlawful wounding."    The trial judge's statement that

Thornton was guilty of "unlawful wounding" may well have been

predicated in part upon his doubt whether Cary was completely

truthful when he testified that he "didn't have [a] weapon on

[him] at that time."   Thus, the failure to allow Thornton a

continuance to obtain the testimony of Officer Jones deprived

him of evidence that tended directly to establish his

self-defense.

     For these reasons, I would hold that the trial judge abused

his discretion in denying Thornton's motion for a continuance to

obtain the material testimony of Officer Jones.   I dissent.




                                - 19 -
