COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpa trick, Judge Willis and Senior Judge Overton Argued at Alex andria, Virginia

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

FROM THE CIRCUIT COUR T 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.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On appeal, Anthony Rumont Roberts (appel lant) contends the trial court erred in (1) refusing to set aside the verdicts due to the Commonweal th's failure to provide ex culpatory evid ence and (2) questioning two jurors in camera midtrial with out his being present. Find ing no error, we affirm. BACKGROUND On March 1, 1997, a jury found appell ant guilty of the September 12, 1996 murder of Kath y Hartley. The jury also found appellant guil ty of feloniously and maliciously sh ooting into an occupied vehicle and us ing a firearm in the co mmission of murder.On July 25, 1997, prior to the imposi tion of sentence, appellant argued for a new tr ial based on, inter alia , the Commonwealth's failur e to provide exculpat ory informat ion about one of its witnesses and the tria l court's in camera questioning of two jurors during trial withou t appellant be ing 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 requir es the Commonwealth to disclose all exculpatory ev idence 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)). "Exc ulpatory eviden ce" is defined - 2 -as evidence that is "material to guilt or pu nishment and favorable to the accused," id. , and includes impe achment ev idence. See United States v. Bagley , 473 U.S. 667, 676 (1985); Robinson v. Commonwealth , 231 Va. 142, 15 0, 341 S.E.2d 15 9, 164 (1986). Evidence is "mat erial," and its no ndisclosure just ifies reversal on appeal, only "if th ere is a reasonable probability that, had the evidence been disclosed to the defens e, 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 "reasonabl e probability" is a probabilit y sufficient to undermine co nfidence in th e 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 th e entire record , including the omitted evidence , a jury would have en tertained a reasonable doubt" as to appe llant's gu ilt. Id. "The mere po ssibility that an item of undisclose d information mi ght have helped the defense . . . does not establ ish 'materiali ty' in the co nstitutional
sense." United States v. Agurs , 427 U.S. 97, 109-10 (1976). "On appeal, 'we re view the evidence in the light most favorable to the Comm onwealth, granti ng to it al l reasonable inferences fairly dedu cible theref rom.'" Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 83 1 (1997) (citat ion omitted). So viewed, the evid ence proved that , around 6:30 p. m. on September 12, 1996, Willie Burns was driving a Fo rd Escort in which Hartley - 3 -was shot and killed wh ile a front seat passen ger. Chan sey Fasano was a rear seat passen ger in the car. Burns testified that he starte d dating Hartle y about a month before her death. Prior thereto, she da ted and lived with appellant. Abou t two weeks before the murder, Bu rns was present when Hartley told appell ant she no longer want ed to be with him, she wanted to be with Burns. Burn s explained how, on September 12, 1996, appell ant recognized him driv ing Hartley and Fasano through town and follow ed them in his white Mitsubishi 3000GT. Burns tried to elude appellant, but was unable to do so. Appellant follow ed Burns onto an entrance ramp to Interstate 81. When appellant's car ap proached Burns' car from the right side, Hartley yelled out that appellant had a gun. Second s later, Burns heard a gunshot, and Hartley fe ll over beside him. Fasano corroborated Burns' ac count of how appe llant followed and chased them. Fasa no heard the fatal gu nshot and sa w Hartley slump over onto Burns' shoulder. Carey Davis met and spoke with appellan t in the afternoon on the day of the murder . Davis and Ha rtley converse d for a short time. When Davis in dicated she had to go, appell ant said, "'I have got to find that crazy-ass Kath y.'" Appellan t also told Davis, "'One of the th ese days I am going to kill that girl.'" A few days before the murder, appe llant visited Susan French, a special prosecut or for the City of Winchester. French testified that appellant was conc erned that Hartley ha d become associated - 4 -with persons dealing in illegal drugs an d had again become addicted to crack cocaine. Appell ant offered to wo rk undercover. French wrote down the information and said she would contact local authorities. Fr ench testified that ap pellant told her that "[s]omebody had better get it under co ntrol" and that, "if somebody didn't get it under control, " and if "Kathy didn't get off the drugs," ap pellant "was going to ha ve to kill Kathy." Two days before th e murder, James Jackson visite d Hartley, a former co-worker. Ap pellant was pres ent. Jackson testified that appellant "had a gun." When Hartley walked Ja ckson to the door so he could leave, appe llant "[t]urne d the gun" at Hartley. Douglas Delagaet ano, a forensic scient ist, tested evidence collected from appellant's car by police. He found gunshot residue from samples taken from the steeri ng 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' hous e. The note read, in pe rtinent part, I leave you all my worldly belongings. Please be good and always remember not to be bad like me. The day after the mu rder, Robert Moore re cognized a newspaper photograph of th e Escort driven by Bu rns, so he contacted authorities to report an incident he witnes sed the prev ious day while driving. He testified that , around 6:40 p. m. on September 12, 1996, a sports car resembling appellan t's passed him on the

- 5 -right shoulder of an interstate entrance ramp. Moor e described the driver as a fair-skinned African-Americ an man. Once on the highway, the car pulled behind a car resembling th e one driven by Burns. Moore looked down at hi s dashboard, then "heard a pop." Moore then saw the Esco rt swerve from the travel lane to the shoulder and back whil e the car resemb ling appellan t's car sped away. Appellant has failed to prove there is a reasonable probability th at, had the ev idence of th e criminal charges against Moore been disclosed to the defense, the resu lt of the proceeding would have been different. See Bagley , 473 U.S. at 682. Moore's testimony was mere ly cumulative of the testimony of Burns and Fasano. Thus, absent Moore's testimon y, we find th e testimony of Burns and Fasano , in conjunction with other evidence of appellant's st atements and conduct befo re and after the murder, more than suffic ient to prove be yond a reasonable doubt that appellant was the murderer. Accordingly, the trial court did not err in denying ap pellant's motion for a new trial. DENIAL OF RIGHT TO PUBLIC TRIAL After the presen tation of eviden ce by both part ies, the trial court advised the parties that two jurors admitted knowing Eric Roberts, appellant's br other and a witness for the defe nse. When he testified, they reco gnized him as a bus dr iver with whom they were familiar. The tr ial court agreed with defense counsel that it should voir dire the two jurors befo re the jury began - 6 -deliberating. Appellan t, through coun sel, initially asserted that he should be present when the trial court qu estioned the jurors. However, the following colloquy then occurr ed 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.

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