Michael Lynn Willis v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia
MICHAEL LYNN WILLIS
v. 	Record No. 1195-95-3 	MEMORANDUM OPINION* BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA 	APRIL 23, 1996
FROM THE CIRCUIT COURT OF PULASKI COUNTY
Colin R. Gibb, Judge
K. Mike Fleenor, Jr. (Crowell, Nuckols,
Layman & Aust, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his convictions of distribution of cocaine,
Michael Lynn Willis contends that the trial court erred in
denying his motion to require the Commonwealth to provide him a
copy of the order revoking a Commonwealth witness' probation and
a copy of the conditions of probation that were violated. 	We
find no error and affirm the judgment of the trial court.
Two indictments were lodged against Willis, each charging
him with distribution of cocaine. 	An October 31, 1994 trial
resulted in his conviction under Indictment 93.238. 	The jury was
unable to reach a verdict with respect to Indictment 93.239, and
as to that indictment, the trial court declared a mistrial.
Willis was retried and convicted under Indictment 93.239 on
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

- 2 -
February 16, 1995. 	His assignment of error addresses proceedings
at the February 16, 1995 trial. 	The October 31, 1994 conviction
is unaffected by this appeal.
On February 19, 1993, Adrian Harvey, who was working for the
Pulaski County Drug Task Force, met with police in "the Park," an
empty parking lot behind an old factory in downtown Pulaski. 	The
police placed a body transmitter and tape recorder on Harvey.
Both he and his vehicle were searched, and no drugs were found.
Harvey was then given $100 to buy crack cocaine from Willis. 	The
police followed Harvey and saw him enter Willis' apartment.
Willis sold Harvey three rocks of crack cocaine. 	Within ten
minutes of leaving Willis' apartment, Harvey delivered the
cocaine to the police.
Prior to trial, Willis filed a motion for discovery and for
a bill of particulars. 	The Commonwealth advised Willis that
Harvey had two prior felony convictions, one for making a false
statement on a firearms application and one for grand larceny,
and two misdemeanor convictions of petit larceny. 	On the morning
of the trial, the Commonwealth advised Willis that Harvey had
been incarcerated for violating the conditions of his probation
and that his probation for the two petit larcenies had been
revoked. 	This occurred in a jurisdiction outside of Pulaski
County. 	Willis moved the trial court to require the Commonwealth
to provide him a copy of the court order revoking Harvey's
probation and a copy of the notice of conditions violated. 	The

- 3 -
trial court denied this motion.
At trial, Willis thoroughly cross-examined Harvey concerning
all his prior convictions. 	Willis brought out the fact that
Harvey had charges pending against him for possession of cocaine
with intent to distribute and possession of marijuana. 	Harvey
admitted that those charges were pending against him and that he
was testifying in the hope of receiving favorable treatment.
Willis contends that if he had been allowed to cross-examine
Harvey as to why his probation was revoked, he could have
impeached Harvey by further discrediting him. 	He argues that a
revocation of probation should be considered a conviction. 	We
disagree.
Code § 19.2-269 provides:
A person convicted of a felony or perjury should not be
incompetent to testify, but the fact of conviction may
be shown to affect his credit.
A party may impeach a witness' credibility "only by showing the
fact and number of prior felony convictions." 	Able v.
Commonwealth, 16 Va. App. 542, 546, 431 S.E.2d 337, 339 (1993).
Only a conviction, not a revocation of probation, may be used to
impeach the credibility of a witness.
Although no general constitutional right to discovery
exists in a criminal case in this Commonwealth, due
process requires that the prosecution produce evidence
favorable to the accused upon request when that
evidence is material either to guilt or punishment.
Disclosure is required only if the evidence is both
favorable to the accused and material either to guilt
or to punishment.
Keener v. Commonwealth, 8 Va. App. 208, 212, 380 S.E.2d 21, 23

- 4 -
(1989) (citations omitted).
Evidence is material either to guilt or to punishment
. . . if there exists a "reasonable probability that,
had the evidence been disclosed to the defense, the
result of the proceeding would have been different."
Id. at 215-16, 380 S.E.2d at 26 (citation omitted).
Because the conditions of probation and probation revocation
order that Willis sought could not have been used by him to
impeach Harvey, that information was not material and was not a
proper subject of discovery.
The judgment of the trial court is affirmed.
Affirmed.