                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

DANIEL COTTON

v.       Record No. 1272-94-2                MEMORANDUM OPINION *
                                           BY JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA                      JANUARY 16, 1996


            FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      William R. Shelton, Judge

            Angela D. Whitley, for appellant.

            Linwood T. Wells, Jr., Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.


     Daniel Cotton (appellant) appeals from a judgment of the

Circuit Court of Chesterfield County finding him guilty of

statutory burglary and arson.   On appeal, he contends that his

due process rights were violated because the Commonwealth did not

provide timely and adequate discovery pursuant to Brady v.

Maryland, 373 U.S. 83 (1963).    He further argues the trial court

erred in admitting evidence of his other crimes, by excluding his

statement to an accomplice, by refusing to permit impeachment of

a witness with a misdemeanor conviction, and in failing to strike

the evidence as to both offenses.     We agree that the Commonwealth

failed to disclose evidence material to appellant's defense, and

we reverse and remand appellant's convictions.

                                 I.

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

favorable to the Commonwealth, granting to it all reasonable

     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
inferences fairly deducible therefrom."    Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

       On January 31, 1993, appellant quit his job at a bar after

an argument with his employer, Theodore Kastanos.   Appellant left

the bar that night with Clifford Carnes, who also worked at the

bar.   Appellant said Kastanos would "burn in hell" and "God [was]

going to punish [him]."

       Later that night, Carnes and appellant went to a service

station to purchase gas.   Appellant pumped gasoline into Carnes'

car.   Carnes testified that after they left the gas station, he

noted appellant covering something up on the floor board.

Appellant had a jar of gasoline on the floor of the car.    At

appellant's request, Carnes drove to Kastanos' house, and

appellant threw the jar into the house.   Carnes saw an orange

glow about the house.
       A fire fueled by an accelerant was discovered at the house,

which was owned by Kastanos' mother.   The morning after the fire,

a police officer observed a person resembling appellant drive by

the Kastanos home.

       Tyrone Morris, who was incarcerated with appellant before

trial, testified as a rebuttal witness on behalf of the

Commonwealth.   Morris testified that appellant admitted throwing

a jar of gasoline into Kastanos' house.   According to Morris,

appellant had said that he intended to persuade his girlfriend

and brother to testify on his behalf and give him a false alibi.

                                 II.

       Before trial, appellant filed a motion for discovery,




                                 -2-
requesting that the Commonwealth be required to provide him with

information pursuant to Brady, including "all consideration or

promises of consideration given to or on behalf of any potential

witness or expected or hoped for by any witness" and "any and all

other records and/or information which arguably could be helpful

or useful to the defense in impeaching or otherwise detracting

from the probative force of the Commonwealth's evidence or which

arguably could lead to such records or information."   Although

the trial court did not enter an order upon the motion, the court

did state at a pretrial hearing that the Commonwealth was

obligated to answer the discovery request and would "be
                                                  1
handcuffed" at trial by what it did not reveal.
     Immediately before Morris testified, the prosecutor revealed

to the defense that he had agreed to write to the parole board on

Morris' behalf.   In the letter, the prosecutor was to indicate

that Morris had been cooperative in the proceeding against

appellant.   The prosecutor further stated that Morris, at the

time of trial, was serving a sentence for a revocation of his

parole.   Appellant's counsel used this information in her cross-

examination of Morris.

     At his sentencing hearing, appellant introduced evidence

tending to affect Morris' credibility.   Officer Brian Price

testified that he filed a disciplinary report against Morris for


     1
      Although it is advisable for the trial court to enter an
order defining the limits of discovery, the absence of such an
order does not preclude an appellate court from determining
whether the Commonwealth has responded appropriately to a
defendant's motion for discovery. See Hackman v. Commonwealth,
220 Va. 710, 713, 261 S.E.2d 555, 557-58 (1980).




                                -3-
spitting on appellant while in jail.   Vincent Vaughan and James

Rose, both of whom were incarcerated with appellant and Morris,

observed Morris reading the transcript of the statement Carnes

gave to the police.    Morris had said he would do anything to see

appellant "go down."   Vaughan and Rose testified that appellant

consistently denied starting the fire.   Furthermore, when

appellant was moved to a different tier of the jail, Rose heard

Morris comment that he would make sure that appellant suffered.

Prior to sentencing, appellant filed a motion for a new trial,

contending that the Commonwealth had violated its duty to

disclose in a timely fashion Morris' criminal record and

relationship with the Commonwealth.    On February 25, 1994, more

than twenty-one days past the date of the sentencing order and

after appellant had noted his appeal to this Court, the trial

court ordered that the Commonwealth's failure to provide adequate

discovery had denied appellant the opportunity meaningfully to

cross-examine the Commonwealth's witnesses, but that the court

was without jurisdiction to grant appellant a new trial.
                                III.

     Appellant argues that his rights to due process were

violated because the Commonwealth did not timely reveal, among

other things, Morris' relationship with the prosecution and his

criminal record.   He contends that the Commonwealth's late

disclosure of the information was prejudicial to him because it

denied him the opportunity to investigate effectively other

evidence he could have used to impeach Morris, such as that he

presented at sentencing.




                                 -4-
     "[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."     Brady,

373 U.S. at 87.    "Disclosure is required where the evidence is

both (1) favorable to the defendant, and (2) material either to

guilt or to punishment."     Humes v. Commonwealth, 12 Va. App.

1140, 1142-43, 408 S.E.2d 553, 554 (1991).    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."     United States v. Bagley, 473 U.S. 667, 682

(1985).

     "Where a witness is expected to testify, impeachment

evidence known to the Commonwealth must be disclosed."     Moreno v.

Commonwealth, 10 Va. App. 408, 416, 392 S.E.2d 836, 842 (1990).

In fact, reversal of the defendant's conviction is the proper

remedy where evidence withheld by the prosecution

"clearly tends to exculpate the defendant or otherwise

depreciates the value of testimony or evidence central to the

prosecution's case.    When the 'reliability of a given witness may

well be determinative of guilt or innocence,' evidence affecting

the credibility of that witness should not be concealed by the

prosecution."     Burrows v. Commonwealth, 17 Va. App. 469, 472, 438

S.E.2d 300, 303 (1993) (quoting Napue v. Illinois, 360 U.S. 264,

269 (1959)).

     Morris' testimony provided a critical link in the chain of

evidence connecting appellant to the charged offenses.    Morris'

testimony strengthened that of Carnes, a witness with




                                  -5-
questionable credibility, considering his own involvement in the

incident and his agreement to cooperate with the Commonwealth in

the proceedings against appellant.    For this reason, Morris'

credibility was a significant factor in determining appellant's

guilt, and the Commonwealth had a duty to disclose information

appellant could have used to impeach him.

     Furthermore,
          [t]he constitutional right to receive
          exculpatory evidence is not fulfilled, and a
          prosecutor's duty is not satisfied, simply by
          disclosure; timely disclosure is required.
          "This right guarantees an accused sufficient
          time to investigate and evaluate the evidence
          in preparation for trial." Where a defendant
          is forced, to his prejudice, to proceed ill
          prepared or in undue haste because of the
          prosecutor's untimely disclosure, his
          constitutional right is impaired, and his
          conviction must be reversed.


Moreno, 10 Va. App. at 417, 392 S.E.2d at 842.    In assessing

whether appellant was prejudiced, "we compare the evidence

adduced at trial with what [appellant] contends could have been

adduced at trial" had the information been disclosed at an

earlier time, and determine if that evidence would have affected

the trial's outcome.   Robinson v. Commonwealth, 231 Va. 142, 152,

341 S.E.2d 159, 165 (1986).

     Appellant cross-examined Morris concerning his prior

criminal record and his association with the Commonwealth.

However, at sentencing appellant demonstrated the extent of

impeachment evidence he would have been capable of producing at

trial had the Commonwealth responded to appellant's discovery

request in a timely way.   Cf. Moreno, 10 Va. App. at 420, 392

S.E.2d at 844 (defendant, who "introduced no evidence post



                                -6-
verdict that he had uncovered that might have been obtained and

been used at trial had he been furnished" impeachment evidence

earlier, had failed to demonstrate how the late disclosure

prejudiced him).   A reasonable probability exists that if the

jury had heard this evidence, which significantly depreciated the

value of Morris' testimony, the outcome of the trial would have

been different.

                                IV.

     Appellant further contends that the trial judge's failure to

grant his motion in limine violated his constitutional rights to

due process and equal protection.     Prior to trial, defense

counsel made a motion in limine to exclude evidence of other

crimes contained in two taped conversations.    The trial judge

opined that he would not rule on the admissibility of this

evidence until it was offered in evidence.    The judge commented

that he would not expect the prosecutor, who presumably knew the

rules of evidence, to offer inadmissible evidence.    Appellant

made no objection to the ruling of the court and did not raise at

any time a constitutional issue of due process or equal

protection.   Therefore, we decline to address these issues.    Rule

5A:18.

     Furthermore, the trial judge sustained appellant's

objections to Carnes' references to "other cases" and to the fact

that appellant had been in prison.    These rulings cannot be

considered as a basis for reversal on appeal.     See id.
                                V.

     Appellant argues that the trial court erred in excluding




                                -7-
from evidence his denials to Carnes that he started the fire.
          Generally, an out-of-court statement by a
          criminal defendant, if relevant, is
          admissible as an exception to the hearsay
          rule when offered by the prosecution because
          it constitutes an admission of a party.
          However, when proffered by the party who made
          the statement, such a statement is generally
          not admissible. Such statements are hearsay,
          therefore, they are inadmissible unless
          falling within an exception to the hearsay
          rule.


King v. Commonwealth, 18 Va. App. 57, 59, 441 S.E.2d 704, 705

(1994).    Appellant did not establish that his own statements

which he sought to admit fell within any exception to the hearsay

rule.    The trial court, therefore, did not err in excluding them.
                                  VI.

        Defense counsel, on cross-examination, asked Morris whether

he had been found guilty of the misdemeanor of interfering with a

police officer.    The prosecutor objected to this question.   The

trial court ruled that defense counsel could ask only questions

that affected Morris' credibility.      Defense counsel questioned

Morris no further.

        Appellant complains on appeal that the trial court prevented

him from impeaching the credibility of Morris with a conviction

of a misdemeanor involving moral turpitude.     Generally,

"[e]vidence of a prior conviction of a misdemeanor involving

moral turpitude is admissible to impeach the credibility of a

witness."     Dowell v. Commonwealth, 12 Va. App. 1145, 1147, 408

S.E.2d 263, 264 (1991), aff'd en banc, 14 Va. App. 58, 414 S.E.2d

440 (1992).    "'Moral turpitude' is defined as 'an act of

baseness, vileness or depravity in the private and social duties




                                  -8-
which a man owes to his fellow man, or to society in general,

contrary to the accepted and customary rule of right and duty

between man and man.'"     Id. (citation omitted).   "The character

of the misdemeanor affords the test" of whether the crime

involves moral turpitude.     Parr v. Commonwealth, 198 Va. 721,

724, 96 S.E.2d 160, 163 (1957).

     "'To constitute obstruction of an officer in the performance

of his duty . . . there must be acts clearly indicating an

intention on the part of the accused to prevent the officer from

performing his duty . . . .'"     Love v. Commonwealth, 212 Va. 492,

494, 184 S.E.2d 769, 771 (1971) (citation omitted).     A conviction

of interfering with a police officer, however, does not involve a

witness' credibility and is not a crime of moral turpitude.

Thus, the ruling of the trial court was plainly correct.      See 1

Charles E. Friend, The Law of Evidence in Virginia § 4-2 (4th ed.

1993).

                                 VII.

     We do not address appellant's challenges to the sufficiency

of the evidence because it is unlikely these same issues will

recur in a future trial.    Because we find appellant was

prejudiced by the late disclosure of information the Commonwealth

was required to reveal, we reverse appellant's convictions and

remand the case for further proceedings should the Commonwealth

be so advised.

                                           Reversed and remanded.




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