ARSEAN LAMONE HICKS v. DIRECTOR, DEPARTMENT OF CORRECTIONS
Record No. 131945
Supreme Court of Virginia
February 26, 2015
Everett A. Martin, Jr., Judge
OPINION BY SENIOR JUSTICE ELIZABETH B. LACY
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
In this appeal, Arsean Lamone Hicks challenges the trial court‘s judgment that his petition for a writ of habeas corpus based on an alleged violation of the prosecution‘s duty to disclose exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963), was untimely filed because it was not filed within the one year limitations period provided in
FACTS AND PROCEEDINGS
In December of 1999, Hicks, then 16 years old, lived with his legal guardian, Haskell Corry, in Norfolk, Virginia. Hicks shared a bedroom with Larry Roscoe. On December 26, 1999, Hicks, Roscoe, and two other persons robbed a pizza delivery driver. During the robbery, Roscoe pointed his gun at the driver‘s head while Hicks took $50 from the driver‘s pocket and the other men took the pizzas. On December 27, 1999, Hicks committed a second armed robbery of a pizza delivery driver. Two days later, on December 29, 1999, Hicks, Farrell Richardson and Kenny Riddick agreed to rob another pizza delivery driver. Hicks, wearing a mask and armed with Roscoe‘s gun, took the driver‘s money and the pizzas. Hicks then drove away in the delivery driver‘s vehicle. Later that evening, Hicks, Richardson and Riddick discussed robbing the Open House Diner in Norfolk, Virginia. Just before 2:00 a.m. on December 30, 1999, Richardson and Riddick entered the Open House Diner. After a few moments, Hicks, again wearing a mask and armed with Roscoe‘s gun, entered the diner, jumped across the counter, and announced the robbery. He ordered an employee to open the cash register. As Hicks was removing money from the register, Lisa Bailey, an off-duty federal police officer, approached him displaying her badge in an attempt to рrevent the robbery. Hicks shot and killed the officer. Hicks and Richardson fled the diner.
Riddick, who had remained in the diner, was questioned by the Norfolk Police officers when they arrived on the scene. Based on
Hicks confessed to the December 26 and 27 robberies and was cоnvicted in two separate jury trials. Hicks pled guilty to the December 29 carjacking, robbery and two counts of using a firearm in the commission of those felonies. Hicks subsequently pled not guilty to the Open House Diner crimes and, following a jury trial, was convicted of first degree murder, use of a firearm in the commission of murder, robbery, use of a firearm in the commission of robbery and conspiracy to commit robbеry. Hicks’ appeals of these convictions were unsuccessful and direct review concluded on January 9, 2004. On July 24, 2013, Hicks, appearing pro se and in forma pauperis, filed a petition for a writ of habeas corpus with regard to his convictions for the Open House Diner crimes. That petition is the subject of this appeal.
In his petition, Hicks alleged that on October 12, 2012, he received a sworn affidavit executed by Roscoe on November 28, 2006, stating that Roscoe had “admitted to Detective Ford that the gun, shoes, coat and mask were mine when I gave him a recorded statement at the [police operations center]. [A]t no time did anyone touch or use my items which I also stated [there was] no way possible any of them could have committed those crimes if these items are said to have been used.” Roscoe had given this affidavit to Richardson, who, according to Richardson‘s affidavit “sat on it” for several years before giving it to Hicks’ girlfriend, who, in turn, mailed it to Hicks in October of 2012.
Based on this information, Hicks asserted that the Norfolk Commonwealth Attorney suppressed or failed to disclose Roscoe‘s recorded statement referenced in the affidavit and that the affidаvit contained exculpatory evidence in violation of Hicks’ due process rights under the Constitution of the United States and Article I, Section 11 of the Constitution of Virginia, as defined in Brady. In response, the Commonwealth filed a motion to dismiss, arguing that
The trial court ultimately dismissed Hicks’ petition, holding that it was not timely filed under
ANALYSIS
Hicks raises three assignments of error. In his first two assignments of error he
Hicks first argues that his petition was timely filed under
When the filing of an action is obstructed by a defendant‘s . . . using any other direct оr indirect means to obstruct the filing of an action, then the time that such obstruction has continued shall not be counted as any part of the period within which the action must be brought.
This section, Hicks argues, operates as an exception to the limitations period established in
The Commonwealth asserts that Supreme Court Rule 5:25 bars our consideration of this argument because it was not raised before the habeas court. Hicks acknowledges that, proceeding pro se and in forma pauperis, he did not specifically cite
We disagree with Hicks’ assertion that his arguments were sufficient to alert the habeas court to the tolling provisions of
Ends of Justice Exception
We apply the ends of justice exception to Rule 5:25 in limited circumstances. Gheorghiu v. Commonwealth, 280 Va. 678, 689, 701 S.E.2d 407, 413-14 (2010) (citing Ali v. Commonwealth, 280 Va. 665, 671, 701 S.E.2d 64, 68 (2010); Charles v. Commonwealth, 270 Va. 14, 17, 20, 613 S.E.2d 432, 433, 435 (2005); Jimenez v. Commonwealth, 241 Va. 244, 249-50, 402 S.E.2d 678, 680 (1991); Ball v. Commonwealth, 221 Va. 754, 758, 273 S.E.2d 790, 793 (1981)). Applying the exception is appropriate when there is error as contended by the appellant and when the failure to apply the exception would result in a grave injustice. Gheorghiu, 280 Va. at 689, 701 S.E.2d at 413.
1. Error
The Commonwealth argues that there was no error in the triаl court‘s judgment because
We do not find this argument persuasive. The lack of an exception to the limitations period within
Next, the Commonwealth asserts, even if
The Commonwealth correctly argues that in previous cases we have said that to invoke the tolling provision of
A claim for relief based on an alleged Brady violation is unlike any claim addressed in our previous cases involving
The Commonwealth‘s reasoning that the failure to disclose in this case was insufficient to invoke the statutory tolling provisions would preclude application of
In summary, we conclude that the tolling provision of
2. Grave Injustice
Before we apply the ends of justice exception of Rule 5:25, however, we must determine whether the failure to apply the exception would result in a grave injustice. Gheorghiu, 280 Va. at 689, 701 S.E.2d at 413. Under the facts of this case, Hicks would suffer a grave injustice if his Brady claim was meritorious but barred from consideration by Rule 5:25. There are three components of a violation of the Brady rule of disclosure:
- The evidence not disclosed to the accused must be favorable to the accused, either because it is exculpatory, or because it may be used for impeachment;
- the evidence not disclosed must have been withheld by the Commonwealth either willfully or inadvertently; and
- the accused must have been prejudiced.
Workman v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374 (2006) (quoting Strickler, 527 U.S. at 281-82) (citations and internal quotation marks omitted). We also have recognized that “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a vеrdict worthy of confidence.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). A reviewing court must determine whether the withheld favorable evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict,” Strickler, 527 U.S. at 290 (citation and internal quotation marks omitted); that is, whether such evidence was material.
Hicks bases his Brady claim on statements contained in an affidavit executed by Roscoe in which Roscoe stated that he gave a recorded statement to the investigating detective indicating that the gun, shoes, coat and mask were his and that no one else touched or used the items and that as a result, it was not possible that the items could have been used in the crimes. Hicks argues that this statement was exculpatory because it “proves that only Larry Roscoe could have committed [the Open House Diner crimes]” and “had [the jury] known of Roscoe‘s statement, they would never have found” Hicks guilty beyond a reasonable doubt. Taking Hicks’ allegations as true, Morris v. Smyth, 202 Va. 832, 833, 120 S.E.2d 465, 466 (1961), we acknowledge that the information in Roscoe‘s affidavit, on its face, is exculpatory. While the Commonwealth raises some question about the existence of a recorded statement, for purposes of this analysis wе will assume that Roscoe‘s recorded statement exists, contains the statements alleged by Hicks and that the Commonwealth failed to disclose it. With those assumptions, the final question remains whether the allegedly nondisclosed evidence was material.
In determining materiality we are guided by the following principles:
[A] showing of materiality does not require demonstration by a preponderance thаt disclosure of the suppressed evidence would have resulted ultimately in the defendant‘s
acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). Second, materiality is not a sufficiency of the evidence test. A defendant need not demonstrate that aftеr discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. Third, a harmless error analysis is unnecessary once materiality has been determined. Fourth, suppressed evidence must be considered collectively, not item by item.
Workman, 272 Va. at 645, 636 S.E.2d at 375 (internal quotation marks, alterations, and citations omitted). Applying these factors to the evidence in this case, which includes transcripts from Hicks’ criminal trial, we cannot conclude that the suppression of Roscoe‘s statement undermines confidence in the outcome of Hicks’ trial. At his jury trial for the Open House Diner crimes, Hicks testified that he pled guilty to committing the December 29, 1999 pizza delivery robbery and carjacking crimes, which occurred only hours before the Open House Diner crimеs. Hicks testified that he wore a mask and used Roscoe‘s gun in the commission of those crimes. There was no dispute at Hicks’ trial that the gun recovered at Hicks’ residence belonged to Roscoe and that Roscoe‘s gun was the weapon used to murder Officer Bailey. Hicks’ trial testimony conclusively established that Hicks not only had access to the murder weapon - Roscoe‘s gun - but also that he had actual possession and control of it just hours before the murder of Officer Bailey. Hicks’ own testimony and the forensic evidence presented to the jury at trial is inconsistent with Roscoe‘s statements.
Furthermore, Hicks also testified that Roscoe did not commit the Open House Diner crimes because another man, known only as “Moe,” committed the crimes.
The jury also heard Hicks’ recorded confession to the Open House Diner crimes, as given to the investigating officers. Although Hicks argued at trial that the confession was coerced, the verdict demonstrates that the jury did not find Hicks’ coercion claim credible.
Based on this record, the allegedly withheld evidence could not reasonably be taken “to put the whole case in such a different light” that confidence in the guilty verdict is undеrmined. Strickler, 527 U.S. at 290; Kyles, 514 U.S. at 434. Therefore, we hold that such evidence was not material. Because the allegedly nondisclosed evidence was not material, Hicks fails to establish that he was prejudiced and, therefore, has failed to prove a necessary component to his Brady claim. Consequently, the failure to apply the ends of justice exception would not result in a grave injustice to Hicks, and we will not apply the ends of justice exception to Rule 5:25 in this case.
In light of our holding that the tolling provision of
CONCLUSION
For the reasons stated, we will affirm the judgment of the trial court.
Affirmed.