                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Petty and Senior Judge Bumgardner
UNPUBLISHED


              Argued at Chesapeake, Virginia


              CAMERON PAUL CROCKETT
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 0119-13-1                                JUDGE RUDOLPH BUMGARDNER, III
                                                                                   JULY 15, 2014
              COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                               Frederick B. Lowe, Judge

                                Afshin Farashahi for appellant.

                                Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
                                Attorney General, on brief), for appellee.


                      Cameron Paul Crockett appeals his conviction of involuntary manslaughter, Code

              § 18.2-36.1(A). He maintains the trial court erred in denying his motion for a new trial on the basis

              of newly discovered evidence and in denying his motion based upon Batson v. Kentucky, 476 U.S.

              79 (1986). Concluding the trial court did not err, we affirm.

                      The defendant was charged with aggravated involuntary manslaughter of Jack Korte, Code

              § 18.2-36.1(B). At his first jury trial in May 2011, the jury returned a verdict of guilty of

              involuntary manslaughter, but was unable to reach a verdict on punishment. The trial court declared

              a mistrial and conducted a second jury trial on March 1, 2012 on the lesser charge of involuntary

              manslaughter. The jury again convicted the defendant of involuntary manslaughter. When the

              defendant absconded to Guatemala, the trial court conducted the penalty phase in his absence, and

              the jury fixed punishment at five years of imprisonment. The defendant was returned to the


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, and the trial court held the sentencing hearing on December 17, 2012. Before

entering judgment on the verdict, the trial court heard motions for a new trial, which it denied. It

then entered judgment on the verdict and imposed the sentence of five years imprisonment.

        The charge arose on December 28, 2008 when a car slammed into a tree in the 2100 block

of Wolfsnare Road, Virginia Beach, killing Korte, who was in the front passenger seat. The

defendant was also found in the car. Numerous residents of that area heard the sounds as the car

slid out of control and struck the tree, but Pamela Patrick, Antoine Smith, and James Reid were the

primary witnesses. They described seeing the car speed down Wolfsnare Road, lose control, and

wreck. They explained what they observed about the car and its occupants immediately after

impact. The police arrived at the scene about ninety seconds after the wreck.

        The Commonwealth maintained the defendant was the driver and the only other person in

the car. The defendant maintained a third person, Jacob Palmer, was the driver and fled from the

wreck without being seen by anyone at the accident scene. The factual issue at trial was the identity

of the driver.

        The defendant’s motion for a new trial was based on a claim of three instances of newly

discovered evidence: expert evidence that the driver was wearing a seatbelt; allegedly exculpatory

statements provided by the Commonwealth after the trial; and evidence of third party confessions.

After argument by counsel, the trial court noted in summary that the motion presented two scenarios

of after-discovered evidence: a new expert opinion about the seatbelt and evidence of inculpatory

statements made by a third party. The trial judge found that the expert opinion about the seatbelt

mechanism could have been secured for use at the trial in the exercise of reasonable diligence. The

court ruled that the evidence provided by the new expert opinion could have been available at trial

and therefore was not a basis for a new trial.




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       The trial court then took evidence on the claim that two witnesses heard Palmer state that he

was the driver. It found that one witness denied hearing Palmer make such a statement and that the

other witness’ statement was vague. The court found the testimony implicating another driver to be

suspect and unlikely to result in a different outcome. The trial court ruled the proffered evidence

would not produce an opposite result at a new trial and denied the motion for a new trial.

       The defense argument, as it pertained to the statements provided by the Commonwealth

after the trial, was incorporated primarily into the broad argument for a new trial based on

after-discovered evidence. These statements were used in conjunction with the other two assertions

of after-discovered evidence to show the three instances of after-discovered evidence cumulatively

were sufficient to meet the requirements for a new trial. To the extent that the three statements

provided by the Commonwealth could also be the basis for a claim for a new trial based on Brady v.

Maryland, 373 U.S. 83 (1963), the trial court made no ruling. It did not decide if the statements

were material or would have produced a different result had they been disclosed before trial.

       In this appeal, the defendant first argues that the trial court erred in denying his motion for a

new trial because the Commonwealth failed to disclose exculpatory evidence in a timely manner.

The court made no ruling on the defendant’s challenge to the extent it rested on a claim that the

Commonwealth had violated Brady.

       It is well settled that where the trial court does not rule on an objection, “there is no ruling

for us to review on appeal.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489

(1998). In this case, the trial court did not rule on any Brady challenge, and counsel never sought

such a ruling. “Hence, the objection was not saved for our consideration.” Taylor v.

Commonwealth, 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967).

       In any case, the statements of Patrick, Smith, and Reid provided after the trial would not

meet the Brady requirement of materiality. See Workman v. Commonwealth, 272 Va. 633, 644-45,

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636 S.E.2d 368, 374-75 (2006) (finding that a conviction is reversed only if the evidence was

material in the sense that the suppression of it undermined the confidence in the outcome of the

trial). The statements offered minor variations in the details in their testimony but did not touch on

the issue in dispute: was someone other than the defendant driving.

        In this appeal, the defendant next argues the trial court erred in denying his motion for a new

trial based upon after-discovered evidence that the driver’s seatbelt was used. In Hopkins v.

Commonwealth, 20 Va. App. 242, 456 S.E.2d 147 (1995) (en banc), this Court held:

                “The applicant bears the burden to establish that the evidence
                (1) appears to have been discovered subsequent to trial; (2) could
                not have been secured for use at the trial in the exercise of
                reasonable diligence by the movant; (3) is not merely cumulative,
                corroborative or collateral; and (4) is material, and such as should
                produce opposite results on the merits at another trial.”

Id. at 249, 456 S.E.2d at 150 (quoting Stockton v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d

371, 387 (1984)).

        At all stages of this case, the defense was the defendant was not the driver. The defense had

access to the car before defendant’s trials. Prior to the sentencing hearing, the defendant obtained a

new attorney and a new expert. The report prepared by the second expert only “suggests” that the

driver’s seatbelt was in use at the time of the accident. This opinion offered by the new expert could

have been reached before trial by the exercise of reasonable diligence. The defendant had access to

the car, and an expert examined it before his trial. The trial judge did not abuse his discretion in

finding reasonable diligence would have produced the evidence and in denying a new trial based

upon this after-discovered evidence.

        In his third assignment of error, the defendant maintains the trial court erred in denying his

motion for a new trial based upon evidence of a third party confession. The defendant contended

that Palmer was the driver of the car. He maintained that two different witnesses overheard Palmer

admit that he was the driver at the time of the wreck.
                                                  -4-
        The defendant proffered that Shaun Hoover could testify that Palmer admitted to him that he

was the driver of the car. However, at the hearing on the motion for a new trial, Hoover did not

testify that Palmer drove the car. To the contrary, Hoover testified that Palmer never told him that

he was driving the car.

        The second witness at the hearing on the motion, Elizabeth Wales, testified that she knew

Palmer from Cox High School, which they both attended. She overheard Palmer say, “I just got

free. I thought I killed them both.” Wales testified that Palmer also mentioned the name “Jack.”

Wales did not come forward with her evidence until June 2012, and she was unsure if she overheard

the conversation in 2010 or 2011. She only came forward after she saw a statement that the

defendant’s girlfriend posted on Facebook, which maintained the defendant had been wrongly

convicted.

        At the conclusion of the evidence on the motion, the trial judge was troubled by Hoover’s

testimony, found that Wales’ testimony was vague at best, and determined that Wales’ testimony

would not produce a different result at another trial.

        Trial counsel was aware of the defendant’s contention that Palmer was the driver prior to

trial. At trial, the defendant called witnesses who saw Korte, Palmer, and the defendant at a party

before the wreck with the intent to show Palmer disappeared from the party for a period of time.

Defense counsel and his investigator spoke to Palmer prior to trial but elected not to call Palmer as a

witness. The trial judge heard Wales’ testimony and observed her demeanor and determined that

her testimony was vague and was unlikely to produce a different result in another trial. A review of

the record shows that the trial judge did not abuse his discretion in ruling that the evidence was

unlikely to produce an opposite result at another trial and in denying the motion for a new trial

based upon after-discovered evidence.




                                                  -5-
       In his last assignment of error, the defendant maintains the trial court erred in denying his

motion based upon Batson because the Commonwealth used two peremptory strikes to remove two

African-American women from the venire. The defendant argues the trial court erred by ruling that

he failed to make a prima facie case of purposeful discrimination.

       The Commonwealth struck two African-American women from the venire. There were a

total of four or five African-Americans on the venire, and the defendant struck one

African-American woman himself. The defendant objected, but he made no attempt at showing a

pattern of discrimination. He stated simply that striking the two African-American women

established a pattern. The trial judge found that there was no pattern of discrimination and

overruled the defendant’s objection.

       “The fact that the prosecution has excluded African-Americans by using peremptory strikes

does not itself establish such a prima facie case under Batson. A defendant also must identify facts

and circumstances that raise an inference that potential jurors were excluded based on their race.”

Johnson v. Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780-81 (2000) (citations omitted);

see Juniper v. Commonwealth, 271 Va. 362, 407, 626 S.E.2d 383, 412 (2006); Yarbrough v.

Commonwealth, 262 Va. 388, 394, 551 S.E.2d 306, 309 (2001).

       The fact the Commonwealth excluded African-Americans by using peremptory strikes did

not establish a prima facie case of racial discrimination. The defendant made no attempt to identify

facts and circumstances that would raise the inference that the Commonwealth struck the two

females based upon their race. There is no evidence of purposeful discrimination by the

Commonwealth in the jury selection process. Thus, the record supports the trial court’s ruling that

the defendant failed to make a prima facie showing of purposeful discrimination under Batson.




                                                 -6-
       In conclusion, we hold that the trial court did not err in its several rulings on the motions for

a new trial and the defendant’s challenge based upon Baston. Accordingly, we affirm.

                                                                                              Affirmed.




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