COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Willis and 

 Senior Judge Overton 

Argued at Alexandria, Virginia 

ANTHONY RUMONT ROBERTS 

 MEMORANDUM OPINION* BY 

v. Record No. 0322-00-4 JUDGE NELSON T. OVERTON 

 FEBRUARY 6, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT 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 (appellant) contends the 

trial court erred in (1) refusing to set aside the verdicts due to 

the Commonwealth's failure to provide exculpatory evidence and (2) 

questioning two jurors in camera midtrial without his being 

present. Finding no error, we affirm. 

BACKGROUND 

 On March 1, 1997, a jury found appellant guilty of the 

September 12, 1996 murder of Kathy Hartley. The jury also found 

appellant guilty of feloniously and maliciously shooting into an 

occupied vehicle and using a firearm in the commission of murder. 
 On July 25, 1997, prior to the imposition of sentence, 

appellant argued for a new trial based on, inter alia, the 

Commonwealth's failure to provide exculpatory information about 

one of its witnesses and the trial court's in camera questioning 

of two jurors during trial without appellant being 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 requires the Commonwealth to disclose all 

exculpatory evidence 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)). "Exculpatory evidence" is defined 

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as evidence that is "material to guilt or punishment and favorable 

to the accused," id., and includes impeachment evidence. See

United States v. Bagley, 473 U.S. 667, 676 (1985); Robinson v. 

Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986). 

Evidence is "material," and its nondisclosure justifies reversal 

on appeal, 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." Bagley, 473 U.S. at 682; 

see Correll v. Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352, 358 

(1987). "'A "reasonable probability" is a probability sufficient 

to undermine confidence in the 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 the entire record, including the 

omitted evidence, a jury would have entertained a reasonable 

doubt" as to appellant's guilt. Id. "The mere possibility that 

an item of undisclosed information might have helped the defense 

. . . does not establish 'materiality' in the constitutional 

sense." United States v. Agurs, 427 U.S. 97, 109-10 (1976). 

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

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. Commonwealth, 

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). 

So viewed, the evidence proved that, around 6:30 p.m. on September 

12, 1996, Willie Burns was driving a Ford Escort in which Hartley 

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was shot and killed while a front seat passenger. Chansey Fasano 

was a rear seat passenger in the car. 

 Burns testified that he started dating Hartley about a month 

before her death. Prior thereto, she dated and lived with 

appellant. About two weeks before the murder, Burns was present 

when Hartley told appellant she no longer wanted to be with him, 

she wanted to be with Burns. Burns explained how, on September 

12, 1996, appellant recognized him driving Hartley and Fasano 

through town and followed them in his white Mitsubishi 3000GT. 

Burns tried to elude appellant, but was unable to do so. 

Appellant followed Burns onto an entrance ramp to Interstate 81. 

When appellant's car approached Burns' car from the right side, 

Hartley yelled out that appellant had a gun. Seconds later, Burns 

heard a gunshot, and Hartley fell over beside him. 

 Fasano corroborated Burns' account of how appellant followed 

and chased them. Fasano heard the fatal gunshot and saw Hartley 

slump over onto Burns' shoulder. 

 Carey Davis met and spoke with appellant in the afternoon on 

the day of the murder. Davis and Hartley conversed for a short 

time. When Davis indicated she had to go, appellant said, "'I 

have got to find that crazy-ass Kathy.'" Appellant also told 

Davis, "'One of the these days I am going to kill that girl.'" 

 A few days before the murder, appellant visited Susan French, 

a special prosecutor for the City of Winchester. French testified 

that appellant was concerned that Hartley had become associated 

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with persons dealing in illegal drugs and had again become 

addicted to crack cocaine. Appellant offered to work undercover. 

French wrote down the information and said she would contact local 

authorities. French testified that appellant told her that 

"[s]omebody had better get it under control" and that, "if 

somebody didn't get it under control," and if "Kathy didn't get 

off the drugs," appellant "was going to have to kill Kathy." 

 Two days before the murder, James Jackson visited Hartley, a 

former co-worker. Appellant was present. Jackson testified that 

appellant "had a gun." When Hartley walked Jackson to the door so 

he could leave, appellant "[t]urned the gun" at Hartley. 

 Douglas Delagaetano, a forensic scientist, tested evidence 

collected from appellant's car by police. He found gunshot 

residue from samples taken from the steering 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' house. The 

note read, in pertinent part, 

I leave you all my worldly belongings. 

Please be good and always remember not to be 

bad like me. 

 The day after the murder, Robert Moore recognized a newspaper 

photograph of the Escort driven by Burns, so he contacted 

authorities to report an incident he witnessed the previous day 

while driving. He testified that, around 6:40 p.m. on September 

12, 1996, a sports car resembling appellant's passed him on the 

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right shoulder of an interstate entrance ramp. Moore described 

the driver as a fair-skinned African-American man. Once on the 

highway, the car pulled behind a car resembling the one driven by 

Burns. Moore looked down at his dashboard, then "heard a pop." 

Moore then saw the Escort swerve from the travel lane to the 

shoulder and back while the car resembling appellant's car sped 

away. 

 Appellant has failed to prove there is a reasonable 

probability that, had the evidence of the criminal charges against 

Moore been disclosed to the defense, the result of the proceeding 

would have been different. See Bagley, 473 U.S. at 682. Moore's 

testimony was merely cumulative of the testimony of Burns and 

Fasano. Thus, absent Moore's testimony, we find the testimony of 

Burns and Fasano, in conjunction with other evidence of 

appellant's statements and conduct before and after the murder, 

more than sufficient to prove beyond a reasonable doubt that 

appellant was the murderer. Accordingly, the trial court did not 

err in denying appellant's motion for a new trial. 

DENIAL OF RIGHT TO PUBLIC TRIAL 

 After the presentation of evidence by both parties, the trial 

court advised the parties that two jurors admitted knowing Eric 

Roberts, appellant's brother and a witness for the defense. When 

he testified, they recognized him as a bus driver with whom they 

were familiar. The trial court agreed with defense counsel that 

it should voir dire the two jurors before the jury began 

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deliberating. Appellant, through counsel, initially asserted that 

he should be present when the trial court questioned the jurors. 

However, the following colloquy then occurred 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 

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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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