COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

DANIEL COTTON 

v. Record No. 1272-94-2 MEMORANDUM OPINION* BY JUDGE MARVIN F. COLE 

COMMONWEALTH OF VIRGINIA JANUARY 16, 1996 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Angela D. Whitley, for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Daniel Cotton (appellant) appeals from a judgment of the 

Circuit Court of Chesterfield County finding him guilty of 

statutory burglary and arson. On appeal, he contends that his 

due process rights were violated because the Commonwealth did not 

provide timely and adequate discovery pursuant to Brady v. 

Maryland, 373 U.S. 83 (1963). He further argues the trial court 

erred in admitting evidence of his other crimes, by excluding his 

statement to an accomplice, by refusing to permit impeachment of 

a witness with a misdemeanor conviction, and in failing to strike 

the evidence as to both offenses. We agree that the Commonwealth 

failed to disclose evidence material to appellant's defense, and 

we reverse and remand appellant's convictions. 

 I. 

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

favorable to the Commonwealth, granting to it all reasonable 

 

 *Pursuant to Code § 17-116.010, this opinion is not 

designated for publication. 
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inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 On January 31, 1993, appellant quit his job at a bar after 

an argument with his employer, Theodore Kastanos. Appellant left 

the bar that night with Clifford Carnes, who also worked at the 

bar. Appellant said Kastanos would "burn in hell" and "God [was] 

going to punish [him]." 

 Later that night, Carnes and appellant went to a service 

station to purchase gas. Appellant pumped gasoline into Carnes' 

car. Carnes testified that after they left the gas station, he 

noted appellant covering something up on the floor board. 

Appellant had a jar of gasoline on the floor of the car. At 

appellant's request, Carnes drove to Kastanos' house, and 

appellant threw the jar into the house. Carnes saw an orange 

glow about the house. 

 A fire fueled by an accelerant was discovered at the house, 

which was owned by Kastanos' mother. The morning after the fire, 

a police officer observed a person resembling appellant drive by 

the Kastanos home. 

 Tyrone Morris, who was incarcerated with appellant before 

trial, testified as a rebuttal witness on behalf of the 

Commonwealth. Morris testified that appellant admitted throwing 

a jar of gasoline into Kastanos' house. According to Morris, 

appellant had said that he intended to persuade his girlfriend 

and brother to testify on his behalf and give him a false alibi. 

 II. 

 Before trial, appellant filed a motion for discovery, 
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requesting that the Commonwealth be required to provide him with 

information pursuant to Brady, including "all consideration or 

promises of consideration given to or on behalf of any potential 

witness or expected or hoped for by any witness" and "any and all 

other records and/or information which arguably could be helpful 

or useful to the defense in impeaching or otherwise detracting 

from the probative force of the Commonwealth's evidence or which 

arguably could lead to such records or information." Although 

the trial court did not enter an order upon the motion, the court 

did state at a pretrial hearing that the Commonwealth was 

obligated to answer the discovery request and would "be 

handcuffed" at trial by what it did not reveal.1

 

 Immediately before Morris testified, the prosecutor revealed 

to the defense that he had agreed to write to the parole board on 

Morris' behalf. In the letter, the prosecutor was to indicate 

that Morris had been cooperative in the proceeding against 

appellant. The prosecutor further stated that Morris, at the 

time of trial, was serving a sentence for a revocation of his 

parole. Appellant's counsel used this information in her crossexamination of Morris. 

 At his sentencing hearing, appellant introduced evidence 

tending to affect Morris' credibility. Officer Brian Price 

testified that he filed a disciplinary report against Morris for 

 

 1Although it is advisable for the trial court to enter an 

order defining the limits of discovery, the absence of such an 

order does not preclude an appellate court from determining 

whether the Commonwealth has responded appropriately to a 

defendant's motion for discovery. See Hackman v. Commonwealth, 

220 Va. 710, 713, 261 S.E.2d 555, 557-58 (1980). 
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spitting on appellant while in jail. Vincent Vaughan and James 

Rose, both of whom were incarcerated with appellant and Morris, 

observed Morris reading the transcript of the statement Carnes 

gave to the police. Morris had said he would do anything to see 

appellant "go down." Vaughan and Rose testified that appellant 

consistently denied starting the fire. Furthermore, when 

appellant was moved to a different tier of the jail, Rose heard 

Morris comment that he would make sure that appellant suffered. 

Prior to sentencing, appellant filed a motion for a new trial, 

contending that the Commonwealth had violated its duty to 

disclose in a timely fashion Morris' criminal record and 

relationship with the Commonwealth. On February 25, 1994, more 

than twenty-one days past the date of the sentencing order and 

after appellant had noted his appeal to this Court, the trial 

court ordered that the Commonwealth's failure to provide adequate 

discovery had denied appellant the opportunity meaningfully to 

cross-examine the Commonwealth's witnesses, but that the court 

was without jurisdiction to grant appellant a new trial. 

 III. 

 Appellant argues that his rights to due process were 

violated because the Commonwealth did not timely reveal, among 

other things, Morris' relationship with the prosecution and his 

criminal record. He contends that the Commonwealth's late 

disclosure of the information was prejudicial to him because it 

denied him the opportunity to investigate effectively other 

evidence he could have used to impeach Morris, such as that he 

presented at sentencing. 
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 "[T]he suppression by the prosecution of evidence favorable 

to an accused upon request violates due process where the 

evidence is material either to guilt or to punishment." Brady, 

373 U.S. at 87. "Disclosure is required where the evidence is 

both (1) favorable to the defendant, and (2) material either to 

guilt or to punishment." Humes v. Commonwealth, 12 Va. App. 

1140, 1142-43, 408 S.E.2d 553, 554 (1991). Evidence is material 

"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." United States v. Bagley, 473 U.S. 667, 682 

(1985). 

 "Where a witness is expected to testify, impeachment 

evidence known to the Commonwealth must be disclosed." Moreno v. 

Commonwealth, 10 Va. App. 408, 416, 392 S.E.2d 836, 842 (1990). 

In fact, reversal of the defendant's conviction is the proper 

remedy where evidence withheld by the prosecution 

"clearly tends to exculpate the defendant or otherwise 

depreciates the value of testimony or evidence central to the 

prosecution's case. When the 'reliability of a given witness may 

well be determinative of guilt or innocence,' evidence affecting 

the credibility of that witness should not be concealed by the 

prosecution." Burrows v. Commonwealth, 17 Va. App. 469, 472, 438 

S.E.2d 300, 303 (1993) (quoting Napue v. Illinois, 360 U.S. 264, 

269 (1959)). 

 Morris' testimony provided a critical link in the chain of 

evidence connecting appellant to the charged offenses. Morris' 

testimony strengthened that of Carnes, a witness with 
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questionable credibility, considering his own involvement in the 

incident and his agreement to cooperate with the Commonwealth in 

the proceedings against appellant. For this reason, Morris' 

credibility was a significant factor in determining appellant's 

guilt, and the Commonwealth had a duty to disclose information 

appellant could have used to impeach him. 

 Furthermore, 

 [t]he constitutional right to receive 

exculpatory evidence is not fulfilled, and a 

prosecutor's duty is not satisfied, simply by 

disclosure; timely disclosure is required. 

"This right guarantees an accused sufficient 

time to investigate and evaluate the evidence 

in preparation for trial." Where a defendant 

is forced, to his prejudice, to proceed ill 

prepared or in undue haste because of the 

prosecutor's untimely disclosure, his 

constitutional right is impaired, and his 

conviction must be reversed. 

Moreno, 10 Va. App. at 417, 392 S.E.2d at 842. In assessing 

whether appellant was prejudiced, "we compare the evidence 

adduced at trial with what [appellant] contends could have been 

adduced at trial" had the information been disclosed at an 

earlier time, and determine if that evidence would have affected 

the trial's outcome. Robinson v. Commonwealth, 231 Va. 142, 152, 

341 S.E.2d 159, 165 (1986). 

 Appellant cross-examined Morris concerning his prior 

criminal record and his association with the Commonwealth. 

However, at sentencing appellant demonstrated the extent of 

impeachment evidence he would have been capable of producing at 

trial had the Commonwealth responded to appellant's discovery 

request in a timely way. Cf. Moreno, 10 Va. App. at 420, 392 

S.E.2d at 844 (defendant, who "introduced no evidence post 
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verdict that he had uncovered that might have been obtained and 

been used at trial had he been furnished" impeachment evidence 

earlier, had failed to demonstrate how the late disclosure 

prejudiced him). A reasonable probability exists that if the 

jury had heard this evidence, which significantly depreciated the 

value of Morris' testimony, the outcome of the trial would have 

been different. 

 IV. 

 Appellant further contends that the trial judge's failure to 

grant his motion in limine violated his constitutional rights to 

due process and equal protection. Prior to trial, defense 

counsel made a motion in limine to exclude evidence of other 

crimes contained in two taped conversations. The trial judge 

opined that he would not rule on the admissibility of this 

evidence until it was offered in evidence. The judge commented 

that he would not expect the prosecutor, who presumably knew the 

rules of evidence, to offer inadmissible evidence. Appellant 

made no objection to the ruling of the court and did not raise at 

any time a constitutional issue of due process or equal 

protection. Therefore, we decline to address these issues. Rule 

5A:18. 

 Furthermore, the trial judge sustained appellant's 

objections to Carnes' references to "other cases" and to the fact 

that appellant had been in prison. These rulings cannot be 

considered as a basis for reversal on appeal. See id.

 V. 

 Appellant argues that the trial court erred in excluding 
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from evidence his denials to Carnes that he started the fire. 

 Generally, an out-of-court statement by a 

criminal defendant, if relevant, is 

admissible as an exception to the hearsay 

rule when offered by the prosecution because 

it constitutes an admission of a party. 

However, when proffered by the party who made 

the statement, such a statement is generally 

not admissible. Such statements are hearsay, 

therefore, they are inadmissible unless 

falling within an exception to the hearsay 

rule. 

King v. Commonwealth, 18 Va. App. 57, 59, 441 S.E.2d 704, 705 

(1994). Appellant did not establish that his own statements 

which he sought to admit fell within any exception to the hearsay 

rule. The trial court, therefore, did not err in excluding them. 

 VI. 

 Defense counsel, on cross-examination, asked Morris whether 

he had been found guilty of the misdemeanor of interfering with a 

police officer. The prosecutor objected to this question. The 

trial court ruled that defense counsel could ask only questions 

that affected Morris' credibility. Defense counsel questioned 

Morris no further. 

 Appellant complains on appeal that the trial court prevented 

him from impeaching the credibility of Morris with a conviction 

of a misdemeanor involving moral turpitude. Generally, 

"[e]vidence of a prior conviction of a misdemeanor involving 

moral turpitude is admissible to impeach the credibility of a 

witness." Dowell v. Commonwealth, 12 Va. App. 1145, 1147, 408 

S.E.2d 263, 264 (1991), aff'd en banc, 14 Va. App. 58, 414 S.E.2d 

440 (1992). "'Moral turpitude' is defined as 'an act of 

baseness, vileness or depravity in the private and social duties 
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which a man owes to his fellow man, or to society in general, 

contrary to the accepted and customary rule of right and duty 

between man and man.'" Id. (citation omitted). "The character 

of the misdemeanor affords the test" of whether the crime 

involves moral turpitude. Parr v. Commonwealth, 198 Va. 721, 

724, 96 S.E.2d 160, 163 (1957). 

 "'To constitute obstruction of an officer in the performance 

of his duty . . . there must be acts clearly indicating an 

intention on the part of the accused to prevent the officer from 

performing his duty . . . .'" Love v. Commonwealth, 212 Va. 492, 

494, 184 S.E.2d 769, 771 (1971) (citation omitted). A conviction 

of interfering with a police officer, however, does not involve a 

witness' credibility and is not a crime of moral turpitude. 

Thus, the ruling of the trial court was plainly correct. See 1 

Charles E. Friend, The Law of Evidence in Virginia § 4-2 (4th ed. 

1993). 

 VII. 

 We do not address appellant's challenges to the sufficiency 

of the evidence because it is unlikely these same issues will 

recur in a future trial. Because we find appellant was 

prejudiced by the late disclosure of information the Commonwealth 

was required to reveal, we reverse appellant's convictions and 

remand the case for further proceedings should the Commonwealth 

be so advised. 

 Reversed and remanded.