COURT OF APPEALS OF VIRGINIA
Present: Judges Hum phreys, Petty and Alston Argued at Richmond, Virginia

LAWRENCE BARTLESON PALMER MEMORANDUM OPINION * BY v. Record Nos. 194 9-07-2 and JUDGE RO BERT J. HUMPHREYS 0072-08-2 1 JULY 28, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Michael C. A llen, Judge Wilford Taylor, Jr., Judge Designate 2 Diane M. Abato (Abato & Da vis, on brief), for appellant. Jennifer C. Willia mson, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Lawrence Bartleson Palmer (“Palmer”) appeals the trial court’s denial of his motions to reconsider. On appeal, Palmer contends that the combination of the evidence adduced at trial and the evidence discovered afterward required the trial court to grant him a new trial. Palmer further contends that the prosecutor in his case committed a Brady violation by not disclosing the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Though this case has two record numbers, it is a single appeal. On August 9, 2007, Palmer was tried in a bench trial and found gu ilty of indecent exposure and eluding police. However, the final order was not entered until August 27, 2007. Nevertheless, Palmer’s trial counsel at the time (Herbert Laine) filed a not ice of appeal on August 13, 2007. That appeal was assigned Record No. 1949-07-2. Over the next few months, Palmer hired a new attorney (Anthony Spencer) and filed two moti ons to reconsider, both of wh ich were denied by the trial court. Following the denial of his second moti on to reconsider, Palmer filed an amended notice of appeal on January 2, 2008, which was assigned Record No. 0072-08-2.

2 Judge Michael C. Allen presided over Palm er’s trial and first motion to reconsider. Judge Wilford Taylor, Jr. presided over Palmer’s second motion to reconsider on December 3, 2007.- 2 - fact that the complaining witness lied when she testified at trial. For the following reasons, we affirm. BACKGROUND On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S. E.2d 781, 786 (2003). Therefore, we must “discard the evidence of the accus ed in conflict with that of the Co mmonwealth, and re gard as true all the credible evidence favorab le to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 27 0 S.E.2d 755, 759 (1 980) (emphasis and citation omitted). So viewed, the eviden ce was as follows. On January 14, 2007, Crystal Thurmond 3 (“Thurmond”) and her fiancé were traveling from Wilmington, North Carolina , to Washington D.C. At approximately 6:00 p.m., Thurmond stopped at an East Coast gas station in Chesterfield County. Thurmond entered the gas station’s convenience store and went to the ladies’ room. Upon enteri ng the ladies’ room, Thurmond testified that she opened the door to the first st all and “s[aw] the defend ant [Palmer] sitting there with his pants to his kn ees fondling himself, mast urbating.” Thurmond furt her testified that she stood and looked at Palmer for a few seconds, called him “sick,” and then left the ladies’ room. Thurmond reported what sh e saw to the store clerk and the police. While sh e was on the phone with the police, Thurmond observed Palmer leave the la dies’ room, purchase a cup of coffee, and then return to his vehicle. During cross-examination, th e following exchange took place between Thurmond and defense counsel:

3 At trial, the complaining witness was refe rred to as Crystal “Thurman.” However, the correct spelling of her name is “Thurmond.” No one asked her to spell her name for the court reporter.- 3 - Q: Have you ever been convicted of a felony or a crime involving moral turpitude or a misdemeanor involving moral turpitude? A: I’ve never been convi cted of any crimes, sir. Q: Being aware that moral turpitude is anything having to do with dishonesty, like theft or things of that nature. A: I’ve never been co nvicted of any crime. In fact, Thurmond had two convictions from North Carolina on her re cord, one for disorderly conduct and the other for reckless driving. Thurmond had also been charged with misdemeanor larceny; however, she was never co nvicted of that offense. Officer Nathan Almond (“Alm ond”) of the Chesterfield Co unty Police Department also testified as a witness for the Co mmonwealth. Almond responded to a report that a gentleman had exposed himself and was masturbati ng in the women’s bathroom of the East Coast ga s station near “Route 10 and Kingston or Kingsland. ” Almond testified that, as he arrived at the ga s station, he received an updated report that the suspect was traveling eastbound on Route 10. The update also included a description of the vehi cle. Almond located a vehicle ma tching the description, verified the vehicle’s license plate number, and activated hi s emergency equipment. Almond testified that the driver of the vehicle did not pull over for some time , despite the fact that there were numerous places where he could have done so safely. When the vehicle finally pulled over, Almond identified Palmer as the driver. The police then escorted Thur mond to the scen e, and she identified Palmer as the man she saw in the ladies’ room. Palmer testified that he stopped at the East Coast gas station on hi s way home from a round of golf. Palmer testified that he was experien cing “diarrhea symptoms” as the result of some medications that he was prescribed . Palmer stopped at the gas sta tion because he “didn’t feel like [he] was going to make it back with out stopping at that point.” Palm er stated that he entered the gas station and asked the clerk where he could find the restroom. The clerk indi cated that the restrooms- 4 - were located in the back of the st ore. Palmer testified that he proceeded to the back of the store, entered the bathroom to the right, and went into the first stall on the left. Palmer further testified that he did not know he was in the ladies’ room. Palmer stated that he attempted to close the door to the stall, but could not becau se the latch was missing. Palmer testified that approximately five to eight minutes later, he heard someone enter the restroom. Moments later, a person opened the d oor to Palmer’s stall an d then “shut the door quickly.” Palmer claimed that he was unable to identify whether the pers on who opened the door was male or female. Approximately five minutes la ter, the door to the la dies’ room opened and a voice yelled, “Sir, you’re in the wr ong bathroom. I’m goin g to call the police.” Palmer then left the ladies’ room, purchased a cup of coffee, and “drove off.” When asked if he entered the convenience store in order to perform a lewd or obscene act with the hope th at some female would view it, Palmer responded “[a] bsolutely not.” After hearing testimony from Thurmond, Almond, Palmer, and two character witnesses who testified on behalf of Palmer, th e trial court found Palm er guilty of indecent exposure and eluding police. The trial court specifical ly found Thurmond to be a more credible witness than Palmer and noted that Palmer’s failure to st op for the police was further evid ence of his guilt. Following his conviction, Palmer filed a motion to reconsider. Palmer asked the trial court to re consider whether Thurmond’s testimony proved his guilt beyond a reasonable doubt. Pa lmer also asked the trial court to consider after-discovered evid ence of Thurmond’s bad character and reputation for dishonesty. The trial court denied Palmer’s motion to reconsider, finding that the new evidence could have been discovered prior to trial through th e reasonable diligence of Palmer. On November 2, 2007, Palmer filed a renewed motion to reco nsider, which ch allenged the legal standard used by the trial court in denying hi s first motion to reconsider . Palmer also alleged that the Commonw ealth committed a Brady violation by not providing Palmer with information that- 5 - Thurmond had been convicted of di sorderly conduct and th at she had a driver’s license for a state in which she did not live. Again the trial court denied Palmer’s renewed motion to reconsider. The trial court found that there was no Brady violation and that it was pr esented with no evidence to justify reopening the case. This appeal followed. ANALYSIS I. Motions to Reconsider Palmer argues that the trial court erred in de nying his motions to reconsider in light of after-discovered evidence of Thurmond’s bad char acter and reputation for dishonesty, as well as the inconsistencies contained in her tr ial testimony. Palmer maintains that [a]n examination of the evidence both adduced at trial and discovered afterward ma[ke] it overw helmingly clear that the trial court could not rely on the testim ony of [Thurmond] to establish beyond a reasonable doubt that [Palmer] intentionally made an obscene display or exposure of himself in a public place or place where others [were] present. We disagree. Though styled as a “Motion to Reconsider,” Palmer’s motion was essentially for a new trial. “Motions for new trials based on after-discovered evidence are addressed to the sound discretion of the trial judge, are not looked upon with favor, are considered with special care and caution, and are awarded with great reluctance. . . . 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 dilig ence by the movant; (3) is not merely cumulative, corroborative or collatera l; and (4) is materi al, and such as should produce opposite results on th e merits at another trial.” Hopkins v. Commonwealth , 20 Va. App. 242, 249, 456 S.E.2d 147, 150 (1995) ( en banc ) (quoting Stockton v. Commonwealth , 227 Va. 124, 149, 314 S.E.2d 371, 387, cert. denied , 469 U.S. 873 (1984)). In order to succeed, “[t]he moving party must establish each of these- 6 - mandatory criteria.” Commonwealth v. Tweed , 264 Va. 524, 529, 570 S.E.2d 797, 800 (2002). In this case, we need go no further than noting th at Palmer failed to establish that the evidence “could not have been secured for use at trial in the exercise of reasonable diligence.” Hopkins , 20 Va. App. at 249, 456 S.E.2d at 150. “‘[A] party who seeks a new trial on the gr ound of after-discovered evidence must show that he used reasonable diligence to secure such evidence before the earlier trial.’” Carter v. Commonwealth , 10 Va. App. 507, 513, 393 S.E.2d 639, 642 (1990) (quoting Fulcher v. Whitlow , 208 Va. 34, 38, 155 S.E.2d 362, 365 (1967)). “‘It is not sufficient merely to say that the evidence could not have been disc overed by the use of due diligence.’” Id. at 513, 393 S.E.2d at 642-43. Rather, “‘[t]h e applicant for a new trial must set forth in affidavits facts showing what his efforts were to obtain the ev idence and explaining why he was prevented from securing it.’” Id. at 513, 393 S.E.2d at 643. First and foremost, Palmer failed to provide any explanation for why he could not obtain the evidence of Thurmond’s allege d criminal record and reputation for dishonesty before trial. Second, much of what Palmer claims he “c ould not have known through the exercise of reasonable diligence” was, in fact, known to Palmer prior to trial. Palmer asserts that he could not have known through the exercise of reasonable diligence that: (1) Th urmond would testify at trial that she had never been convicted of a crim e; (2) Thurmond had a prior criminal conviction; and (3) Thurmond has a reputation in her community as a dishonest person. However, the record in this case belies Palmer’s assertion. On July 13, 2007, almost a month before trial, a private investigator retained by Palmer conducted a criminal records search of “Crystal Thurmond” at the request of Palmer’s trial counsel. The report indicated that Thurmond was convicted of reckless driving and disorderly conduct in 1994 and that she was charged with larce ny in 1996. The report al so stated that “[a]ll- 7 - information was reported verbally and this report was sent to the Client with results and these suggestions for further surveillance.” Based on th e information contained in this report, it is clear that Palmer knew the correct spelling of Thurmond’s name and the substance of her criminal record. Thus, Palmer could have obtaine d, and in fact, did obtai n, this evidence prior to trial through the exercise of reasonable diligence , and the trial court did not err in denying his motion to reconsider. II. Brady Violation Palmer also contends that the prosecutor in this case violated Brady v. Maryland , 373 U.S. 83 (1963), “by not providing [him] with information that the complaining witn ess was lying when she testified at trial that she had never been convicted of a crim e and that she had a driver’s license for a state where she did not live wi th a name that was not hers.” This argument is without merit. Though “a defendant does not have a general constitutional righ t to discovery in a criminal case,” the prosecutor “is required to provide a defendant with exculpatory evidence, including evidence which impeache s the credibility of a pr osecution witness.” Goins v. Commonwealth , 251 Va. 442, 456, 470 S.E. 2d 114, 124 (1996). “‘In order for a defendant to establish a Brady violation, he must demonstrate that the undi sclosed evidence was exculpatory an d material either to the issue of guilt or to the is sue of punishment.’” Id. (quoting United States v. Agurs , 427 U.S. 97, 109-10 (1976)). “‘Exculpatory evidence is material if th ere is a reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense. A ‘reasonable probability’ is one which is sufficient to undermine confidence in the outcome of the proceeding.’” Wilson v. Commonwealth , 25 Va. App. 263, 270, 487 S.E.2d 857, 861 (1997) (quoting Bowman v. Commonwealth , 248 Va. 130, 133, 145 S.E.2d 110, 112 (1994)). However, “‘where the exculpatory informati on is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled- 8 - to the benefit of the Brady doctrine.’” United States v. Roane , 378 F.3d 38 2, 402 (4th Cir. 2004) (quoting United States v. Wilson , 901 F.2d 378, 381 (4 th Cir. 1990)). Furthermore, “information actually known by the defendant falls outside the ambit of the Brady rule.” Id. (emphasis added). This is because “[t]he rationale underlying Brady is not to supply a defenda nt with all the evidence in the Government's possession which might concei vably assist the prepar ation of his defense, but to assure that the defendant will not be denied access to ex culpatory evidence only known to the Government.” United States v. LeRoy , 687 F.2d 610, 619 (2d Cir. 1982). The evidence in the record demonstrates that Pa lmer knew both the correct spelling of Thurmond’s name and the s ubstance of her criminal record prior to trial. A private investigator, hired by Palmer, obtained Thurmond’s criminal reco rd nearly a month before trial. That record contained Thurmond’s 1994 convictions for disorderly conduct and reckless driving. 4 It is important to note that “[t]his court is firmly comm itted to the view that proof of conviction of a misdemeanor involving moral turpitude is admissible to impeach the credibil ity of a witness, and that conversely, proof of c onviction of a misdemeanor not involving moral turpitude is inadmissible for that purpose.” Parr v. Commonwealth , 198 Va. 721, 724, 96 S.E.2d 160, 163 (1957) (citing Bell v. Commonwealth , 167 Va. 526, 189 S.E. 44 (1937); Burford v. Commonwealth , 179 Va. 752, 20 S.E.2d 509 (1942); Taylor v. Commonwealth , 180 Va. 413, 23 S.E.2d 139 (1942); Chesapeake & Ohio Ry. Co. v. Hanes, Adm’r. , 196 Va. 806, 86 S.E.2d 122 (1955); Pike v. Eubank , 197 Va. 692, 90 S.E.2d 821 (1956) (emphasis added). “‘Misdemeanor crimes of moral turpitude ar e limited to those crimes invol ving lying, cheating and stealing, including making a false stat ement and petit larceny.’” Johnson v. Commonwealth , 41 Va. App.

4 Thurmond had a disposition of “prayer for judg ment continued,” after pleading guilty to both disorderly conduct and reckle ss driving. Under North Caroli na law, a guilty plea followed by a prayer for judgment conti nued is deemed a conviction. See State v. Sidberry , 448 S.E.2d 798, 800-01 (N.C. 1994).- 9 - 37, 43, 581 S.E.2d 880, 883 (2003) (quoting Newton v. Commonwealth , 29 Va. App. 433, 448, 512 S.E.2d 846, 853 (1999) (citation omitted)). Disorderly conduct and reckless driving are not crimes involving lying, cheating or stealing. Th us, evidence of Thurmond’s convictions for those offenses would not have been admissible to impeach her testimony. Furthermore, during his cross-examination of Thurmond, Palmer inquired about a 1996 charge of “larceny by changing price tag.” That informatio n was also contained in the investigator’s report. In fact, the record demons trates that the information of Thurmond’s criminal record and reputation was not onl y available to Palmer, but was actually known to him prior to trial. Therefore, when Thurmond testifie d, “I’ve never been convicted of any crimes, sir,” Palmer had actual knowledge that she was not te lling the truth. Thus, that info rmation “falls outside the ambit of the Brady rule.” 5 Roane , 378 F.3d at 402. Affirmed.

5 Moreover, Palmer failed to es tablish that this “undisclosed evidence” was material. The mere fact that Thurmond possessed a Virginia dr iver’s license with the name “Thurman” and had a prior conviction for disorderly conduct does not render her testimony so inherently incredible as to “‘undermine confidence in the outcome of the proceeding.’” Wilson , 25 Va. App. at 270, 487 S.E.2d at 861 (quoting Bowman , 248 Va. at 133, 4 45 S.E.2d at 112).