Virginia’s Court of Appeals has upheld a Maryland man’s conviction on malicious wounding and firearms charges, ruling that a Fairfax County trial judge found an appropriate remedy for the prosecution’s failure to disclose information favorable to the defense.
An attorney for Collins Agyei had argued that the charges against him should’ve been fully dismissed by the Fairfax County Circuit Court in December 2024 due to a failure of prosecutors to disclose an admitted error in testimony, among other legal contentions.
The lack of disclosure violated the defendant’s due process rights under the landmark 1963 Supreme Court ruling in Brady v. Maryland and a related case, Giglio v. United States.
“We affirm appellant’s convictions,” Judge Mary Grace O’Brien, on behalf of the three-justice panel, wrote in a memorandum opinion issued Oct. 27. “The court fashioned an appropriate remedy for the Commonwealth’s Brady violation.”
Agyei was arrested on Feb. 7, 2023 after a 28-year-old woman was shot six times at Mount Vernon’s Mallard Court Apartments. The victim, Esther Arko, was the mother of Agyei’s child but had recently separated from him.
Surveillance footage shown during the trial showed Arko returning to the apartments after dropping their son off at a school bus stop, where a man, identified by a neighbor as Agyei, confronted her.
Agyei, who was wearing black latex gloves, pulled out a gun as they stood in the hallway and initiated a physical attack, according to the appellate court’s summary of the evidence. As Arko fled, he fired multiple times.
After officers arrived at the scene, the victim identified Agyei as the shooter. He was charged with aggravated malicious wounding and the use of a firearm in the commission of a felony.
The prosecution’s troubles began at a pretrial hearing, when the Commonwealth called on a trauma surgeon to testify about Arko’s availability as a witness. Dr. Erick Teicher testified that Arko had vocal cord paralysis and, as a result, had undergone a tracheostomy, which opens a hole in a person’s windpipe for placement of a breathing tube.
However, Teicher realized after his testimony — but before the court ruled on a motion to admit statements Arko made to officers at the scene — that he had confused her with another patient. While the symptoms were correct, the cause was not: Arko had tracheal stenosis, not vocal cord paralysis.
The doctor notified the prosecutor, who did not share the information with the defense. This became an issue at trial, when Teicher testified that the cause of Arko’s inability to testify was tracheal stenosis.
The prosecutor “explained that he thought the difference in testimony was not important because the evidence only related to Arko’s availability as a trial witness,” not her statement from the scene, and it wasn’t necessary to prove permanent injury, the appellate court wrote.
However, Agyei’s defense attorney argued that he had spent months “preparing an extensive cross-examination of the doctor and other witnesses, researching vocal cord paralysis as a permanent injury, and organizing his trial strategy around the issue,” the appellate court said.
The original circuit court judge found that a Brady violation had occurred, but found two appropriate remedies, striking Teicher’s testimony and dismissing the “aggravated” portion of the malicious wounding charge, according to the appellate court.
The revised charge reduced the maximum penalty Agyei faced, since a conviction for aggravated malicious wounding, which requires proof of permanent injury, would result in a prison term of 20 years to life. Malicious wounding, which does not require permanent injury, carries a potential sentence of only five to 20 years.
“These remedies resolved the prejudice from the Brady violation,” the appellate court wrote.
Ultimately, the jury found Agyei guilty and recommended the maximum sentence: 20 years for malicious wounding, another three for the firearms charge, and a $100,000 fine.
Agyei’s appeal further argued that the trial court should not have admitted a police video recording of the victim’s statements; that his speedy-trial rights were violated due to the availability of his lawyer for trial; and that there was insufficient evidence of his identity or malice on his part.
However, “the record reflects that appellant planned his attack on Arko in advance and carried it out deliberately and willfully,” wrote the appellate court, which determined that the circuit court “did not err by admitting the victim’s recorded statements or by denying appellant’s motion to dismiss on speedy-trial grounds.”
The appellate court’s memorandum opinion is not designated for publication, meaning that it’s of lesser gravity than a published opinion, which is intended to establish precedent.
