ANALYSIS OF FEBRUARY 9, 2010 CAV OPINIONS[Posted February 9, 2010] The CAV returns to the opinion-publishing business today with two decisions. Both are criminal appeals, and both appellants walk away empty-handed.
When the prosecution withholds material that it’s supposed to disclose under Brady v. Maryland, the appellant gets a new trial, right? Well, not quite. Today’s ruling in Coley v. Commonwealth illustrates one important limitation of that doctrine.
A couple of officers noted Coley’s name in a motel register, and observed that it matched a name for which an outstanding arrest warrant existed. They went to the appropriate motel room and knocked, but no one answered. Instead, they watched as an SUV “back[ed] out of a parking space quickly and [spun] its wheels as it left the area.” The officers figured they’d better check this out, but they didn’t have far to go; the would-be escapee drove all the way across the street to a gas station and parked the car there. Some getaway, huh?
The driver of the SUV then got out, looked right at the officers, and then calmly strode into the station. The officers testified that they were just a few feet away from the driver, and one of them recognized him, from a previous encounter, as Coley.
The officers decided against an immediate arrest; they called for backup. That gave Coley time to finish his business and return to his car. Since he was about to get away, the officers tried to make a traffic stop. When Coley pulled over and they got out of their police car, he backed into their car (probably ramming it in an effort to set off the airbag) and drove off. The officers got a search warrant and checked out the motel room, where they found several snapshots of Coley and his buds. Coley was eventually caught and charged with eluding and two counts of assault of a police officer.
At trial, four items of non-disclosed evidence appeared. Coley’s lawyer no doubt objected to them, but he never asked for a continuance of the trial to deal with them. (This omission is significant because he thereby waived the right to appeal based on surprise.) The lawyer cross-examined the police vigorously on all four items, but the trial court (this was a bench trial) found Coley guilty anyway. After the trial, the defense learned that the police had found a piece of paper in the hotel with someone else’s name and address. That hadn’t been disclosed, either. Coley sought a new trial based on newly-acquired evidence, but the trial court refused.
On appeal, the CAV affirms the conviction. Disposition of the first four items is easy, since the defense actually knew about the evidence during the trial. That means that it wasn’t really “after-acquired,” under the caselaw interpreting that principle. That leaves the slip of paper. Today the court finds that that’s “neither relevant nor exculpatory.” Among other problems, the existence of the scrap of paper doesn’t mean that the phantom suspect was actually in the motel room (and there was testimony from none other than the defendant’s own mother that Coley was, in fact, in the motel room around that time). One last detail clinches the ruling: The paper listed the phantom’s name . . . and his “Richmond City Jail number, tier number, and jail address.” That would make it fairly difficult for him to have been around to commit these crimes.
Before closing, today’s opinion observes that the prosecution failed to turn over Brady material, but holds that Coley suffered no prejudice as a result. So just because the prosecutor holds on to that material doesn’t get you a new trial. The court probably wasn’t too keen on the Commonwealth’s Attorney’s failure to comply with Brady, but there’s no “Get Out of Prison, Free” card for Coley in today’s ruling.
Today’s other published opinion is Lamm v. Commonwealth, and it also involves something the defense learns after the trial is over. Lamm was charged with battering his girlfriend savagely, breaking bones in her face to the point that she had to have metal plates implanted under her skin. At the time of trial, five months after the attack, the victim testified that she had lost her senses of smell and taste, and that several of her teeth were still numb. Her doctor testified that that condition might or might not be permanent. He also opined that the metal plates could eventually be removed, but he had no plans to do that.
Six months after the jury convicted him of aggravated malicious wounding, Lamm was back in court for sentencing. But so was the victim, with surprising news: She could smell and taste things again. Lamm seized on this new information and argued that the victim no longer had a permanent injury, which is one of the predicate facts for the charge of which he was convicted.
This really looks promising, because unlike the “after-acquired” evidence about which Coley squawked, this evidence really was after-acquired. And it’s not a matter of credibility, since no one doubted the victim’s good news. But Lamm loses anyway, as you know because I spilled the beans back in my introductory paragraph. How could he lose?
Because the loss-of-sense evidence wasn’t the only evidence about permanency; that’s how. As far as the CAV knew, the victim’s teeth were still numb; and she still had those plates in her head. The court comes to the unsurprising conclusion that having a metal plate in your head is a permanent injury, or at least that the trial judge didn’t abuse his discretion by so finding. Lamm accordingly will enjoy the hospitality of the Attorney General for the next ten years.