COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Frank 

Argued at Chesapeake, Virginia 

JEROME MOSES THORNTON 

 MEMORANDUM OPINION* BY 

v. Record No. 2579-99-1 JUDGE LARRY G. ELDER 

 DECEMBER 5, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Johnny E. Morrison, Judge 

 S. Jane Chittom, Appellate Counsel (Public 

Defender Commission, on brief), for 

appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Jerome Moses Thornton (appellant) appeals from his bench 

trial conviction for the unlawful wounding of James Cary in 

violation of Code § 18.2-51.1 On appeal, he contends the trial 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

1

 Appellant originally was indicted for malicious wounding 

in violation of Code § 18.2-51. The order of conviction recites 

that the court found him guilty of the lesser-included offense 

of unlawful wounding in violation of Code § 18.2-51. The 

sentencing order, however, purports to indicate that appellant 

was convicted for malicious wounding and cites an unrelated code 

section, § 18.2-250, which proscribes the possession of certain 

controlled substances. The trial transcript makes clear that 

the trial court "[found] [appellant] guilty of unlawful 

wounding," as confirmed by the conviction order and agreed upon 

by the parties. Therefore, we remand the matter to the trial 
court erroneously (1) denied his mistrial motion based on the 

Commonwealth's failure to disclose the existence of a knife, 

which he contends was material, exculpatory evidence; (2) denied 

his motion for a continuance to secure testimony concerning the 

previously undisclosed exculpatory evidence; and (3) held the 

evidence sufficient to support his conviction given impeachment 

of victim Cary and appellant's claim of self-defense. We hold 

the evidence did not establish the Commonwealth should have 

known the existence of the knife or the location from which it 

was seized was exculpatory evidence. Further, the evidence 

established that a diligent defense attorney would have been 

aware of the existence and seizure of the knife prior to trial. 

Because no discovery or due process violation occurred, the 

trial court did not abuse its discretion in denying the mistrial 

and continuance motions. Finally, Cary's testimony was not 

inherently incredible, and that testimony, along with the 

physical evidence, was sufficient to support appellant's 

unlawful wounding conviction. Therefore, we affirm the 

conviction. 

 

court for the sole purpose of correcting the clerical errors in 

the sentencing order. See Tatum v. Commonwealth, 17 Va. App. 

585, 592, 440 S.E.2d 133, 138 (1994); see also Code 

§ 8.01-428(B). 

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A. 

MISTRIAL AND CONTINUANCE MOTIONS 

 Whether to grant a motion for a mistrial or for a 

continuance rests within the discretion of the trial court. 

See, e.g., Novak v. Commonwealth, 20 Va. App. 373, 391-92, 457 

S.E.2d 402, 410-11 (1995). Denial of either motion will be 

reversed on appeal only upon a showing that the trial court 

abused its discretion and that the party was prejudiced as a 

result. See id. at 391-92, 457 S.E.2d at 411. "A court must 

not exercise its discretion in a manner which would deny an 

accused . . . sufficient time to investigate and evaluate the 

evidence in preparation for trial." Lomax v. Commonwealth, 228 

Va. 168, 172, 319 S.E.2d 763, 765 (1984). 

 "[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, 

irrespective of the good faith or bad faith of the prosecution." 

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 

L. Ed. 2d 215 (1963). "[I]nformation known to the police is 

information within the Commonwealth's knowledge[,] and the 

prosecutor is obliged to disclose [it] regardless of the state 

of his actual knowledge." Moreno v. Commonwealth, 10 Va. App. 

408, 418, 392 S.E.2d 836, 842-43 (1990). A Brady violation 

occurs when the prosecution fails to disclose material 

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exculpatory evidence within its exclusive control. See Lugo v. 

Munoz, 682 F.2d 7, 9 (1st Cir. 1982), cited with approval in

United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990). 

However, Brady is not violated "'if the evidence in question is 

available to the defendant from . . . sources [other than the 

government],'" Wilson, 901 F.2d at 380 (quoting United States v. 

Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)), and would have 

been "readily available to a diligent defense attorney" through 

those other sources, Lugo, 682 F.2d at 9; cf. Coleman v. 

Commonwealth, 27 Va. App. 768, 773-76 & n.2, 501 S.E.2d 461, 

463-65 & n.2 (1998) (in case not implicating Brady because 

evidence was not exculpatory, holding that defendant waived 

statutory right to have Commonwealth furnish him with copy of 

certificate of analysis it planned to introduce at trial because 

defendant requested copy in discovery motion, agreed to appear 

in Commonwealth's Attorney's office to receive items requested, 

and never appeared in office to complete discovery). "'The 

purpose of the Brady rule is . . . to assure that [the 

defendant] will not be denied access to exculpatory evidence 

known to the government but unknown to him.'" Lugo, 682 F.2d at 

10 (quoting United States v. Ruggiero, 472 F.2d 599, 604 (2d 

Cir. 1973)). 

 In appellant's case, the defense requested all exculpatory 

material, and the Commonwealth responded that "no exculpatory 

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evidence in this case is known to the Commonwealth." The 

Commonwealth's attorney was charged with the knowledge of all 

police in the jurisdiction involved in the case, and he admitted 

he was unaware, prior to trial, of the existence of the second 

knife or what Officer Jones would say about its seizure. 

However, the existence of the knife was not inherently 

exculpatory, and nothing in the record indicates the 

Commonwealth should have been aware prior to trial that 

appellant was proceeding on a theory of self-defense.2 Thus, no 

evidence established that the Commonwealth's lack of awareness 

led to a discovery or due process violation. 

 Assuming the second knife was seized by Officer Jones in 

connection with this case--a reasonable assumption given its 

presence in the evidence bag and the testimony of Officer 

Milteer that he did not seize the knife--no evidence either 

previously admitted or proffered to the trial court at the time 

of appellant's mistrial and continuance motions established that 

the existence of the knife or the location from which Jones 

seized it was exculpatory. The victim had testified that he was 

unarmed during the altercation. If Jones, by way of example, 

had told the Commonwealth's attorney he seized the second knife 

 2

 Not until appellant's mistrial motion and case-in-chief 

did his theory of the case become clear, and no evidence ever 

established what Officer Jones would have said about his seizure 

of the knife. 

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from appellant's room along with the meat cleaver or hatchet 

appellant used to cut the victim, the Commonwealth would have 

had no reason to believe the second knife was exculpatory and, 

therefore, no duty to reveal its existence or the location from 

which it was seized in response to the request for exculpatory 

evidence. 

 Because appellant failed to establish at the time he moved 

for the mistrial and continuance that the existence of the knife 

or the location in which it was found was exculpatory or that 

the Commonwealth should have known it may have been exculpatory 

under appellant's theory of the case, the trial court did not 

abuse its discretion in denying the motions. 

 Further, no reversible error occurred because the substance 

of the evidence, if it was exculpatory, was "readily available 

to a diligent defense attorney" through sources other than the 

government. Lugo, 682 F.2d at 9; Wilson, 901 F.2d at 380. 

Appellant himself testified that Cary began the altercation by 

threatening appellant with a pocketknife. Defense witness 

Barker testified that he told one of the officers at the scene 

that Cary threatened appellant with a knife and that Barker 

observed one of the officers seize this knife from Cary's pocket 

at the scene.3 A diligent defense attorney would have been aware 

 3

 To the extent this testimony could be considered an 

informal proffer of Officer Jones' expected testimony, it was 

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of these representations prior to trial, would have taken 

advantage of the opportunity under the discovery order to view 

the Commonwealth's tangible evidence, cf. Coleman, 27 Va. App. 

at 773-76, 501 S.E.2d at 463-65, and, upon discovering the 

second knife in the evidence bag, would have taken steps to 

obtain further information about it--by questioning the 

Commonwealth's attorney about the knife, arranging to speak to 

Officer Jones about the knife, or at least refusing to stipulate 

to the chain of custody of the evidence or subpoenaing Officer 

Jones to assure his availability for trial. 

 Under these circumstances, a diligent defense attorney 

should have had ample time to obtain and use this information in 

preparing for trial. Therefore, we hold the trial court did not 

abuse its discretion in denying the mistrial or continuance 

motions. 

B. 

SUFFICIENCY OF THE EVIDENCE 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, we view the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Higginbotham v. 

 

offered and admitted only after the trial court had denied 

appellant's mistrial and continuance motions, and appellant did 

not renew the motions after this informal proffer was made. 

Therefore, the trial court had no duty to revisit the issue. 

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Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The 

conclusions of the fact finder on issues of witness credibility 

may be disturbed on appeal only if this Court finds that the 

witness' testimony was "inherently incredible, or so contrary to 

human experience as to render it unworthy of belief." Fisher v. 

Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984). 

 Appellant was charged with malicious wounding and convicted 

for the lesser-included offense of unlawful wounding. Code 

§ 18.2-51 provides: 

 If any person maliciously shoot, stab, 

cut, or wound any person or by any means 

cause him bodily injury, with the intent to 

maim, disfigure, disable, or kill, he shall, 

except where it is otherwise provided be 

guilty of a Class 3 felony. If such act be 

done unlawfully but not maliciously, with 

the intent aforesaid, the offender shall be 

guilty of a Class 6 felony. 

If a wounding remains unlawful but results from "heat of 

passion," such as rage or fear, rather than malice, it 

constitutes unlawful wounding rather than malicious wounding. 

See Miller v. Commonwealth, 5 Va. App. 22, 24-25, 359 S.E.2d 

841, 842 (1987). Finally, where the accused responds to a 

threat of harm from another and "the amount of force [the 

accused] use[s] [is] reasonable in relation to the harm 

threatened," the accused may be acquitted based on self-defense. 

See Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 

24, 25-26 (1989). 

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 Although appellant contends he should have been acquitted 

based on self-defense, the evidence, viewed in the light most 

favorable to the Commonwealth supports the trial court's finding 

that appellant committed an unlawful wounding. The undisputed 

evidence established that appellant attacked and cut Cary with 

an eleven-inch meat cleaver. Cary testified that he did nothing 

to provoke the attack and that he did not have a knife in his 

possession during the altercation. The trial court was entitled 

to reject the testimony of Barker and appellant that it was Cary 

who first brandished a knife and that appellant did not injure 

Cary until after Cary threatened appellant with the knife. The 

mere fact that the police officers responding to the scene 

recovered a knife that may have belonged to Cary did not compel 

the conclusion, contrary to Cary's testimony, that Cary had the 

knife in his possession or that he used it to threaten 

appellant. Finally, even if the trial court concluded that Cary 

wielded a knife, the undisputed evidence established that Cary's 

injuries were severe whereas appellant sustained no injuries. 

These facts permitted the trial court to find that the amount of 

force appellant used was not reasonable in relation to the harm 

threatened, thereby justifying the trial court's rejection of 

appellant's self-defense claim. 

 For these reasons, we hold the trial court's denial of 

appellant's mistrial and continuance motions was not erroneous 

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and that the evidence, viewed in the light most favorable to the 

Commonwealth, was sufficient to support appellant's conviction 

for unlawful wounding. Therefore, we affirm the conviction. 

However, due to the clerical errors in the sentencing order 

regarding the offense for which appellant was convicted, see

supra footnote 1, we remand this matter to the trial court for 

the sole purpose of amending the sentencing order to reflect 

that appellant was convicted of unlawful wounding in violation 

of Code § 18.2-51.

Affirmed on the merits and remanded with instructions.

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Benton, J., dissenting. 

 I would hold that when the prosecutor disclosed for the 

first time at trial evidence that had exculpatory value to 

Jerome Moses Thornton, the trial judge abused his discretion by 

refusing to grant Thornton's motion for a continuance. 

 I. 

 In pertinent part, the grand jury indictment reads as 

follows: 

[T]he accused, 

 JEROME H. THORNTON 

 1. Malicious Wounding

 On or about March 6, 1999, did unlawfully 

shoot, stab, cut, or wound, or cause bodily 

injury to [James] Cary with the intent to 

maim, disfigure, disable or kill. 

 A Class 3 felony, in violation of [Code] 

§ 18.2-51. 

 The trial transcript and conviction order demonstrate that 

the trial judge convicted Thornton of the offense of unlawful 

wounding, a Class 6 felony. I agree with the majority that the 

trial judge's sentencing order erroneously states that the trial 

judge convicted Thornton of "malicious wounding." Thus, the 

sentencing order contradicts the conviction order and, 

furthermore, it erroneously references Code § 18.2-250, which 

relates to controlled substances. Unlike the majority, however, 

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I do not believe that these discrepancies are mere clerical 

errors because the record does not establish that they are such. 

Because these mistakes may well have influenced the sentence 

itself, I believe that at a minimum we should vacate the 

sentencing order and remand the matter for resentencing. 

 II. 

 I believe, however, that the record requires us to reverse 

the conviction and remand for a new trial. At trial, the 

complaining witness, James Cary, testified that Thornton struck 

him without provocation, cutting and scarring the left side of 

his face. Cary denied attacking Thornton with a knife during 

the incident and denied having a knife during the fray. He 

testified that "when [he] went to bed the next day, [he] got up, 

felt in [his] pocket for [his] pocket knife, it was not there. 

[He] didn't have no weapon on [him] at that time." 

 Officer Milteer, who investigated the incident with Officer 

Jones, testified that Officer Jones recovered a meat cleaver 

from Thornton's room. Officer Milteer testified that another 

knife was seized during the investigation but he did not seize 

it. He said Officer Jones "recovered the evidence." The 

prosecutor did not call Officer Jones as a witness and stated 

that Thornton's counsel had "stipulated to . . . the chain of 

evidence." 

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 Thornton's counsel moved for a mistrial because the 

prosecutor had affirmatively stated during discovery that "[n]o 

exculpatory evidence in this case is known to the Commonwealth" 

and had failed to disclose the second knife. Opposing the 

motion, the prosecutor informed the judge he was unaware the 

knife was in the evidence bag. The record contains a discovery 

order requiring the prosecutor to provide to the defense "[a]ll 

evidence or information in the possession or control of the 

Commonwealth which tends to exculpate the defendant." In 

addition, Thornton's counsel informed the judge she had not 

inspected the objects in the prosecutor's possession even though 

the discovery order permitted her to do so. Without stating a 

reason, the trial judge denied Thornton's motion for mistrial. 

Thornton's counsel then sought a "continuance, so that [she] at 

least can have an opportunity to get Officer Jones here, so that 

[she] can question him about this knife." The trial judge 

summarily denied that motion. I would hold that the trial judge 

abused his discretion in denying Thornton a continuance. 

 III. 

 "[T]he suppression by the prosecution of evidence favorable 

to an accused upon request violates due process where the 

evidence is material . . . to guilt . . . , irrespective of the 

good faith or bad faith of the prosecution." Brady v. Maryland, 

373 U.S. 83, 87 (1963). Under Brady, "the individual prosecutor 

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has a duty to learn of any favorable evidence known to the 

others acting on the government's behalf in the case, including 

the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). The 

existence of two knives in the evidence bag was more than 

sufficient to alert the prosecutor in this case to the 

reasonable probability that both men were armed and to make 

inquiry of the officers concerning the source of the second 

knife. 

[T]he Commonwealth is not relieved of the 

discovery responsibilities because it fails 

to make reasonable inquiry of the police 

concerning the evidence it will use to prove 

the case. The Commonwealth is charged with 

the responsibility to interview all 

government personnel involved in a case in 

order to comply with its discovery 

obligations. 

Harrison v. Commonwealth, 12 Va. App. 581, 585, 405 S.E.2d 854, 

857 (1991). The existence of the two knives and the 

prosecutor's interview of her witnesses would have reasonably 

informed the prosecutor that evidence favorable to Thornton was 

in her possession. 

 As the majority opinion notes, Thornton's trial counsel is 

not blameless in the matter. The discovery order required the 

prosecutor to "[p]ermit the defendant to inspect . . . tangible 

objects . . . in the possession, custody, or control of the 

Commonwealth." Thornton's counsel failed to request an 

opportunity to view the evidence file. Despite that lapse, 

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however, the prosecutor's affirmative statement in writing prior 

to entry of the discovery order that "[n]o exculpatory evidence 

in this case is known to the Commonwealth" establishes a Brady

violation. 

 Faced with these circumstances and the disclosure of this 

evidence during the trial, the trial judge abused his discretion 

in failing to grant Thornton's request for a continuance. In so 

doing, he adversely affected Thornton's opportunity to use this 

evidence in his defense at trial. 

[A]lthough granting or denying a continuance 

is within the discretion of the trial court, 

it must exercise its discretion "with due 

regard to the provisions of the Bill of 

Rights, which secure to one accused of crime 

a fair and impartial trial; and to that end 

safe-guard his right 'to call for evidence 

in his favor.'" When a court has no reason 

to believe that a motion for a continuance 

is spurious, it should seriously consider 

whether a failure to grant the continuance 

may "imperil the just determination of the 

cause." . . . "An ideal system of laws would 

be one in which speedy justice is 

administered, but justice and not speed 

should be its paramount purpose." 

Gilchrist v. Commonwealth, 227 Va. 540, 546, 317 S.E.2d 784, 787 

(1984) (citations omitted). "The very integrity of the judicial 

system and public confidence in the system depend on full 

disclosure of all the facts, within the framework of the rules 

of evidence." United States v. Nixon, 418 U.S. 683, 709 (1974). 

When the evidence proves, as here, that "[t]he right to explore 

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and develop this evidence was critical to the defendant's case," 

the failure to grant his motion for a continuance is an abuse of 

discretion. Lomax v. Commonwealth, 228 Va. 168, 173, 319 S.E.2d 

763, 766 (1984). 

 The record established that the late disclosure of evidence 

regarding the existence of the second knife and its seizure by 

police from Cary prejudiced Thornton in the preparation of his 

defense. In the absence of Officer Jones' testimony concerning 

the origin of the knife, the trial judge apparently disbelieved 

the defense witness' testimony. A defense witness, who lived in 

the boarding house with the two men, testified that Thornton and 

Cary "had words" and that Cary then swung at Thornton. During 

the ensuing tussle, Cary "took out a knife." The witness 

testified that later, when the police arrived, he told them Cary 

had a knife. He testified that a police officer removed the 

knife from Cary's pocket. The witness identified the knife 

Officer Milteer displayed as Cary's knife. 

 Thornton testified that Cary swung at him after Cary 

mistakenly believed Thornton had commented on Cary's body odor. 

Thornton testified that after they tussled he got away from Cary 

and went outside. When he returned, Cary came toward him with a 

knife to stab him. He testified that he cut Cary with a cleaver 

while he was defending himself. 

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 After both parties presented their evidence, the trial 

judge recalled Cary to the courtroom and asked if the knife was 

his. Cary said it was. The trial judge expressly ruled, 

however, that Cary's identification of the knife as his own was 

"not evidence." The judge then convicted Thornton of unlawful 

wounding. 

 Although Cary denied that he had a weapon during the fray, 

Officer Milteer's testimony established that Officer Jones 

seized this knife during their investigation immediately after 

the altercation. Apparently, appellant did not know Officer 

Jones seized the knife and agreed to stipulate to the chain of 

custody of the Commonwealth's evidence. If Officer Jones had 

been present at trial, he could have confirmed that he seized 

the second knife from Cary in response to the witness' 

contemporaneous report that Cary brandished the knife at 

Thornton during their altercation. Such testimony from a 

witness with no known motive to fabricate would have 

strengthened Thornton's claim of self-defense significantly and 

would have given Thornton a much stronger base from which to 

cross-examine Cary about his claim that he did not have the 

knife in his possession and did nothing to provoke the fight 

with Thornton. Officer Jones' absence from the trial, a direct 

result of the prosecutor's failure timely to disclose its 

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possession of exculpatory evidence, clearly prejudiced Thornton) 

in the presentation of his defense. 

 The trial judge could have cured this prejudice effectively 

by granting Thornton's continuance request. This was not a case 

in which Thornton's testimony or trial strategy was at odds with 

the undisclosed exculpatory evidence. Moreover, nothing in the 

record indicates that Thornton would have presented a different 

theory of the case had he received advance notice of the 

prosecutor's possession of Cary's knife. Compare Conway v. 

Commonwealth, 12 Va. App. 711, 716, 407 S.E.2d 310, 312-13 

(1991) (en banc) (holding that late disclosure of taped 

statement of accused in response to discovery order prejudiced 

accused's defense and required mistrial because it was not 

revealed to him until after he had testified at odds with 

statement and it was used to impeach him), with Knight v. 

Commonwealth, 18 Va. App. 207, 214-15, 443 S.E.2d 165, 169-70 

(1994) (holding that late disclosure of accused's statement to 

police did not require mistrial because it was not at odds with 

his testimony and theory of the case). The prejudice caused by 

this late discovery could have been cured by granting Thornton's 

request for a continuance to allow him to present testimony from 

Officer Jones. If necessary, Thornton's counsel could then also 

have recalled Cary or Thornton for further examination prompted 

by Officer Jones' testimony. 

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 At the conclusion of the evidence the trial judge ruled 

"the Court is of the opinion that malicious wounding should be 

reduced to unlawful wounding; therefore, the Court finds you 

guilty of unlawful wounding." The trial judge's statement that 

Thornton was guilty of "unlawful wounding" may well have been 

predicated in part upon his doubt whether Cary was completely 

truthful when he testified that he "didn't have [a] weapon on 

[him] at that time." Thus, the failure to allow Thornton a 

continuance to obtain the testimony of Officer Jones deprived 

him of evidence that tended directly to establish his 

self-defense. 

 For these reasons, I would hold that the trial judge abused 

his discretion in denying Thornton's motion for a continuance to 

obtain the material testimony of Officer Jones. I dissent. 

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