COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Bumgardner 

Argued at Richmond, Virginia 

ANDRE VASHAWN CARTER, a/k/a DRE 

 MEMORANDUM OPINION* BY 

v. Record No. 0076-98-4 JUDGE LARRY G. ELDER 

 JUNE 29, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Richard B. Potter, Judge 

 James T. Maloney (Joseph D. Morrisey; 

Morrisey, Hershner & Jacobs, on brief), for 

appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Richard B. Campbell, Assistant Attorney 

General, on brief), for appellee. 

 Andre Vashawn Carter (appellant), a juvenile when the 

charged offenses occurred, appeals from his jury trial 

convictions for first-degree murder, use of a firearm in the 

commission of murder, robbery, and use of a firearm in the 

commission of robbery. On appeal, he contends the circuit court 

(trial court) erroneously (1) denied his motion to quash the 

indictments; (2) admitted evidence of appellant’s drug use and 

involvement in a prior shooting; (3) denied his motion to 

dismiss based on the Commonwealth’s failure to produce allegedly 

 

 * Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 
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exculpatory evidence; and (4) denied his motion for a new trial 

based on the Commonwealth’s reference in closing argument to 

evidence earlier ruled inadmissible. For the reasons that 

follow, we affirm appellant’s convictions. 

1. MOTION TO QUASH INDICTMENTS 

 Appellant contends first that the trial court erred in 

refusing to quash the indictments because he was not allowed to 

present evidence at his preliminary hearing that he did not 

commit the crimes charged. He argues that this amounted to the 

denial of a proper preliminary hearing and that the charges 

should be remanded for a new preliminary hearing. We hold that 

the trial court committed no reversible error. 

 Where an accused timely objects, the complete failure to 

conduct a preliminary hearing for an offense for which an adult 

accused of a crime has neither waived his right to a hearing nor 

“been presented or indicted by a grand jury” is reversible 

error. Triplett v. Commonwealth, 212 Va. 649, 650-51, 186 

S.E.2d 16, 16-17 (1972). However, pursuant to Code 

§ 16.1-269.1, which provides for the juvenile and domestic 

relations district court to conduct a preliminary hearing for a 

juvenile fourteen years of age or older charged with various 

felonies, including capital murder, “[a]n indictment in the 

circuit court cures any error or defect in any proceeding held 

in the juvenile court except with respect to the juvenile’s 
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age.” Code § 16.1-269.1(B), (E); see 1996 Va. Acts chs. 755, 

914 (amending Code § 16.1-269.1 to add subsections (C), (D) and 

(E) and providing that amendments apply “to offenses committed 

and to records created and proceedings held with respect to 

those offenses on or after July 1, 1996”). Therefore, assuming 

without deciding that the district court erred in restricting 

appellant’s cross-examination of the witnesses and his right to 

present evidence to prove that he did not commit the charged 

crimes and, thus, erred in finding probable cause for capital 

murder, appellant’s indictment in the circuit court cured those 

defects.1 Of course, the evidence produced at trial, which was 

sufficient to support appellant’s capital murder conviction, 

also supported the grand jury’s issuance of an indictment for 

capital murder.2

 For these reasons, we hold that the trial court committed 

no reversible error in denying appellant’s motion to quash the 

indictments. 

 1

 We also note that the statute provides for consistent 

results--if the district court had not found probable cause or 

had terminated the proceedings by dismissal, the Commonwealth 

would have been permitted under subsection (D) of the statute to 

seek a direct indictment in circuit court without having to 

start over in the district court. In contrast, if the 

proceedings in juvenile court are terminated by nolle prosequi, 

“the attorney for the Commonwealth may seek an indictment only 

after a preliminary hearing in juvenile court.” 

2

 Appellant does not challenge the sufficiency of the 

evidence to support any of his convictions. 
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2. EVIDENCE OF PRIOR BAD ACTS 

 Generally, evidence tending to show an accused committed 

prior crimes or bad acts is inadmissible for the purpose of 

showing the accused committed the crime charged. See Woodfin v. 

Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380 (1988). 

However, such evidence “may be admissible if introduced to prove 

an element of the offense charged, or to prove any number of 

relevant facts, such as motive, intent, agency, or knowledge.” 

Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229, 

234, aff’d, 17 Va. App. 248, 436 S.E.2d 193 (1993) (en banc). 

An accused is not entitled “to have the evidence ‘sanitized’ so 

as to deny the jury knowledge of all but the immediate crime for 

which he is on trial.” Scott v. Commonwealth, 228 Va. 519, 

526-27, 323 S.E.2d 572, 577 (1984). “In addressing the 

admissibility of other crimes evidence the court must balance 

the probative value of the evidence of the other offenses and 

determine whether it exceeds the prejudice to the accused. The 

court’s weighing of these factors is reviewable only for clear 

abuse of discretion.” Pavlick v. Commonwealth, 27 Va. App. 219, 

226, 497 S.E.2d 920, 924 (1998) (en banc) (citations omitted). 

 Appellant contends that the trial court erred in admitting 

evidence of his prior drug use.3 We hold that appellant waived 

 3

 Appellant also complains that the court improperly limited 

his ability to elicit testimony about the drug use of the 

Commonwealth’s witnesses. However, appellant’s assignment of 
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the right to object to admission of evidence of his prior drug 

use by introducing similar evidence himself. See Saunders v. 

Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 639 (1970). He 

testified on direct examination that he smoked marijuana and 

that marijuana-smoking was a “daily ritual” engaged in by 

“[e]verybody” in the Baggett household. Appellant’s counsel 

also elicited testimony about appellant’s drug use from Sandy 

Rapier. This testimony did not constitute an attempt to rebut 

the Commonwealth’s evidence regarding his drug use. See McGill 

v. Commonwealth, 10 Va. App. 237, 244, 391 S.E.2d 597, 601 

(1990) (noting that cross-examination or attempt to rebut does 

not waive previous objection). Appellant concedes on brief that 

he decided “to introduce similar evidence in his case-in-chief” 

but contends that this was a “necessary adjustment” based on the 

trial court’s rulings permitting introduction of such evidence 

by the Commonwealth. We disagree. The rule that waiver results 

from the introduction of similar evidence is clear. 

 Appellant also contends that the trial court erred in 

admitting evidence that he allegedly used the murder weapon to 

shoot into an occupied vehicle on November 25, 1997, several 

 

error asserts only that “the trial court erred in admitting 

evidence of [appellant’s] prior bad acts”; it does not claim 

that the court erred in preventing him from inquiring fully 

about drug use by witnesses for the Commonwealth. Therefore, we 

did not grant appellant an appeal on the latter issue, and we 

may not consider it on appeal. See Rule 5A:12; Gilley v. 

Commonwealth, 21 Va. App. 740, 743, 467 S.E.2d 312, 313 (1996). 
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weeks before the instant offenses. He argues that his prior use 

of the weapon was too far removed and that use of the firearm to 

commit the offense and appellant’s presence at the crime scene 

were not at issue. He challenges both the trial court’s 

original ruling permitting the introduction of evidence that he 

possessed and fired the weapon but excluding evidence that he 

fired into an occupied vehicle and its subsequent ruling that he 

“opened the door” to the Commonwealth’s cross-examining him 

about whether he fired at an occupied vehicle. Again, we hold 

that the trial court committed no reversible error. 

 “The [Virginia] Supreme Court has consistently upheld the 

admission of evidence that the defendant committed an additional 

crime when that evidence connects the defendant to the murder 

weapon.” Burley v. Commonwealth, 29 Va. App. 140, 144, 510 

S.E.2d 265, 267 (1999) (in murder prosecution in which accused 

“vigorously attacked any testimony linking him to the gun” until 

just before his arrest, upholding admission of evidence of 

separate murder committed by accused with same weapon more than 

a month after charged offense occurred). Applying this 

principle in a recent case, we noted that 

[a]ny evidence that linked [the accused] to 

the weapon tended to make his guilt more 

probable. The more times he was found in 

possession and the closer the occasions were 

to the date of the murder, the more 
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convincing the inference that he possessed 

it when [the victim] was killed. 

Id. at 146, 510 S.E.2d at 268. 

 Here, although the record contains direct testimony from 

Khalif Rodriguez that he saw appellant shoot the victim and 

statements from other witnesses that appellant admitted the 

shooting to them, counsel for appellant implied in his opening 

statement and cross-examination of the Commonwealth’s witnesses 

that the murder weapon, which was found in Michael Baggett’s 

room and did not have appellant’s fingerprints on it, did not 

belong to appellant and that Rodriguez and the other witnesses 

were lying to protect Rodriguez or Baggett. Here, as in Burley, 

appellant’s possession and use of the murder weapon within 

several weeks of the murder clearly was probative of whether 

appellant owned the gun and was the criminal agent in the 

victim’s murder.4 Therefore, the challenged evidence in 

appellant’s case is less prejudicial than the challenged 

evidence in Burley, which proved Burley guilty of murder, the 

same offense for which he was on trial. Here, as in Burley, we 

hold that the probative value of the evidence regarding the 

 4

 Further, the trial court ruled that evidence that 

appellant possessed and fired the weapon on November 25, 1996, 

would be admitted but that the most prejudicial evidence 

regarding appellant’s behavior that day, that he actually shot 

at an occupied vehicle, would not be admitted, and it did not 

change its ruling until appellant “opened the door” to further 

inquiry. See infra footnote 6. 
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prior shooting was greater than any prejudice resulting from its 

admission.5

 Appellant also contends that the trial court erred in 

allowing the Commonwealth to go beyond the court’s earlier 

ruling and to cross-examine appellant about his shooting at an 

occupied vehicle. For the reasons discussed above, we hold that 

the admission of evidence that appellant shot at an occupied 

vehicle did not constitute an abuse of discretion.6

 For these reasons, we hold that the trial court did not 

abuse its discretion in admitting evidence of the November 25, 

1996 shooting. 

3. EXCULPATORY STATEMENTS 

 The Due Process Clause of the United States Constitution 

requires the Commonwealth to disclose to a criminal defendant 

5

 In Burley, the trial court gave a cautionary instruction, 

which reduced the prejudice resulting from admission of the 

other crimes evidence. Here, appellant did not request a 

cautionary instruction. 

6

 Further, we hold that the trial court did not abuse its 

discretion in ruling that appellant opened the door to such 

cross-examination when he took the stand and testified that he 

was “shocked and confused” when he thought Baggett or Rodriguez 

had shot someone at the rest stop from the car. After such 

testimony, the Commonwealth was entitled to explore what aspect 

of that behavior supposedly shocked appellant and why. When 

appellant answered yes to the Commonwealth’s question, “It 

shocked you that a gun would be fired from your car at another 

human being?” the Commonwealth was entitled to question first 

appellant and later Justin Velize about the November 25, 1996 

incident in which appellant allegedly shot at an occupied 

vehicle. 
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exculpatory or favorable evidence and provides that failure to 

disclose such evidence may require reversal where that evidence 

is material to either guilt or punishment, “irrespective of the 

good faith or bad faith of the prosecution.” Soering v. Deeds, 

255 Va. 457, 464, 499 S.E.2d 514, 517 (1998); see Lowe v. 

Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112, 118 (1977). 

Exculpatory evidence includes evidence that impeaches the 

credibility of a witness for the Commonwealth. See Robinson v. 

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

 Exculpatory 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. A “reasonable probability” is a probability 

sufficient to undermine confidence in the outcome [of the 

trial].’” Taitano v. Commonwealth, 4 Va. App. 342, 349, 358 

S.E.2d 590, 593-94 (1987) (citations omitted). In addition, the 

court must “assess the reasonable probability of a different 

result in ‘light of the totality of circumstances and with an 

awareness of the difficulty of reconstructing in a post-trial 

proceeding the course that the defense and the trial would have 

taken had the defense not been misled by the [nondisclosure].’” 

Id. at 349, 358 S.E.2d at 594 (citation omitted). This test 

requires that the effect of the suppressed evidence be 

considered collectively. See Kyles v. Whitley, 514 U.S. 419, 
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436, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995). No Brady

violation occurs where defense counsel knew about exculpatory 

evidence “in sufficient time to make use of [it] at trial.” 

Read v. Virginia State Bar, 233 Va. 560, 564, 357 S.E.2d 544, 

546 (1987). 

 We hold, under the totality of the circumstances, that 

appellant received all exculpatory evidence in time to use it 

effectively at trial and that no reasonable probability exists 

that the outcome would have been different if the Commonwealth 

had disclosed the more detailed witness statements prior to 

trial. The challenged statements had value only as impeachment 

evidence and did not indicate that appellant did not commit 

capital murder. The record reflects that appellant made no 

request for a continuance at any time during the trial. It also 

reflects that the trial court granted all recesses appellant 

requested to allow him to examine the disputed statements and 

granted all requests to recall witnesses for further 

cross-examination based on those statements. 

 Appellant received a brief summary of Rodriguez’s pretrial 

statements before trial and received the actual statements 

before cross-examining him; appellant was able to cross-examine 

him thoroughly about any claimed inconsistencies.7 Although 

 7

 Appellant contends that a handwritten and handcorrected 

statement made by Rodriguez on January 8, 1997, was never 

produced at appellant’s trial but was introduced at Rodriguez’s 
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appellant received Rodriguez’s letters to Albert Richardson 

after Rodriguez had testified, appellant did not ask to recall 

Rodriguez to cross-examine him about the statements. Appellant 

recalled Baggett after receiving his two pretrial statements and 

had an opportunity to cross-examine him fully. Regarding Stacey 

Jones’ statement, although appellant received the statement 

after Christopher Payne testified, appellant did not ask to 

recall Payne for further cross-examination, and appellant simply 

read Jones’ statement into the record rather than calling Jones 

to testify. Appellant also chose to follow the same procedure 

with the statements of Eva McDonnell and Edward James Wesley. 

Finally, appellant was aware before trial that Vincent “Speedy” 

Williams had said Baggett reported being in the restroom at the 

time of the murder, and appellant was able to cross-examine 

Williams about this statement at trial.8

subsequent trial. The record on appeal indicates, however, that 

this statement was part of Commonwealth’s exhibit 19A, which, 

although not admitted at trial, was reviewed at trial by counsel 

for appellant. 

8

 Appellant also challenges the Commonwealth’s failure to 

produce the pretrial statement of Williams at any stage of the 

proceedings. We hold that appellant failed to take the 

necessary steps to present a complete record of this issue for 

review on appeal. See, e.g., Ferguson v. Commonwealth, 10 Va. 

App. 189, 194, 390 S.E.2d 782, 785 (noting general duty of 

appellant to furnish complete record), aff'd in part and rev'd

in part on other grounds, 240 Va. ix, 396 S.E.2d 675 (1990). He 

neither obtained a copy of the statement, if one exists, for 

inclusion in the record on appeal nor furnished evidence that he 

took the necessary steps to obtain the statement from an entity 

that had actual or constructive possession of it. 
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 Finally, the record reflects that appellant had actual or 

constructive knowledge of the bulk of these witnesses’ allegedly 

inconsistent statements before he took the stand. He had 

Baggett’s first statement, the statements of Rodriguez and 

Jones, and summaries of the statements of Williams and McDonnell 

before he testified in his own behalf. 

Reasonable inferences from the record indicate that the 

Naval Criminal Investigative Service (NCIS) questioned Williams 

when the ship aboard which he was stationed docked in San Diego 

in April 1997. When the Commonwealth attempted to question 

Williams further at trial about having made such a statement to 

NCIS, appellant objected, and more detailed testimony was not 

allowed. 

No evidence establishes that the Commonwealth had a copy of 

this statement. Compare White v. Commonwealth, 12 Va. App. 99, 

101-05, 402 S.E.2d 692, 694-96, aff’d, 13 Va. App. 284, 410 

S.E.2d 412 (1991) (en banc) (remanding to trial court to receive 

and review exculpatory confession of co-defendant where 

prosecutor had told defense counsel he had the confession but 

refused to produce more than a summary of it). Further, the 

record makes clear that appellant knew about the statement 

before the trial was over, but he did not request a continuance 

to attempt to subpoena the statement from NCIS and did not 

attempt to subpoena the statement from NCIS after trial. 

After trial, appellant moved the court to conduct an 

in camera review of the Commonwealth’s files for exculpatory 

information not produced, but the court denied the motion. 

Although the Commonwealth said it would not object to the 

court’s sealing a particular undisclosed statement for 

transmission with the appellate record, appellant did not 

specifically ask the court to employ such a procedure. 

Because appellant failed to take necessary steps to make 

Williams’ statement, if one exists, available for our review on 

appeal, we are unable to determine whether it contained 

additional exculpatory evidence, beyond what the Commonwealth 

provided in summary form before trial, which would have 

established a reasonable probability of a different outcome at 

trial. 
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 Appellant did not have Baggett’s second statement or the 

statement of Wesley until after he testified. However, Wesley’s 

statement that Baggett was in the bathroom during the murder was 

merely cumulative of the pretrial statements of McDonnell and 

Williams, and appellant had received summaries of those 

statements prior to trial. Therefore, we hold that appellant’s 

earlier receipt of Wesley’s statement would not materially have 

affected his decision to testify. We also conclude that 

appellant’s earlier receipt of Baggett’s second statement would 

not materially have affected his decision to testify.9

 Finally, reviewing all late disclosed evidence as a whole, 

we conclude that no reasonable probability exists that the 

outcome of trial would have been different if the Commonwealth 

had disclosed the disputed witness statements prior to trial. 

9

 Assuming without deciding that appellant’s brief 

accurately characterizes Baggett’s pretrial statements and trial 

testimony, the Commonwealth’s prior answers to appellant’s 

discovery request and Baggett’s first statement to 

police--provided to appellant before appellant took the 

stand--contained all the information necessary for appellant to 

conclude that nine of the thirteen pretrial statements listed in 

his brief were inconsistent with Baggett’s trial testimony. The 

only alleged inconsistencies which could not have come to light 

until appellant received Baggett’s second statement were listed 

in appellant’s brief as (h), (k), (l) and (m). However, our 

careful review of the record indicates that these four alleged 

inconsistencies either were not actually inconsistent with 

Baggett’s trial testimony or were insufficient to establish a 

reasonable probability that the outcome of the trial would have 

been different had they been disclosed before appellant 

testified in his own behalf. 
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4. EVIDENCE REFERENCED IN CLOSING ARGUMENT 

 Lastly, appellant contends that the trial court erred in 

not granting his motion for mistrial after the Commonwealth’s 

attorney referred in closing argument to evidence ruled 

inadmissible. We hold that this argument is procedurally 

barred. Although the prosecutor referred to the challenged 

testimony twice during closing argument, counsel for appellant 

waited until after the jury retired to move for a mistrial. 

Under settled principles, the motion was untimely and the trial 

court properly denied it. See Cheng v. Commonwealth, 240 Va. 

26, 39, 393 S.E.2d 599, 606 (1990) (holding that “[a] motion for 

a mistrial [based on the prosecutor’s improper comments or 

conduct during argument] is untimely and properly refused when 

it is made after the jury has retired”). 

 For these reasons, we hold that the trial court did not err 

in denying appellant’s motion to quash the indictments, 

admitting evidence of appellant’s prior bad acts, or denying 

appellant’s motion to dismiss and motion for a new trial. 

Accordingly, we affirm appellant’s convictions. 

Affirmed.