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the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Chesapeake, Virginia
Record No. 3022-02-1
JOHN BYRD NELSON
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE ROBERT P. FRANK
DECEMBER 2, 2003
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
James B. Covington for appellant.
Stephen R. McCullough, Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
John Byrd Nelson (appellant) appeals his convictions by a jury
of taking indecent liberties
with a child, in violation of Code ? 18.2-370; sexual object
penetration of a victim under the age of
thirteen, in violation of Code ? 18.2-67.2(A); and three counts
of forcible sodomy, in violation of
Code ? 18.2-67.1(A). Appellant argues the trial court erred in
(1) refusing him access to
subpoenaed documents, (2) failing to excuse a juror during the
trial, (3) failing to dismiss the
forcible sodomy indictments for failure to state an offense, (4)
denying his motion for a bill of
particulars, and (5) refusing to consolidate the forcible sodomy
indictments. For the reasons below,
we affirm appellant’s convictions.
I. Sealing Subpoenaed Documents
Appellant was charged with committing sexual assault on a victim
under the age of
fourteen. Prior to trial, appellant requested a subpoena duces
tecum for the medical records of
Dr. Alan Rountree, a doctor who treated the victim after the
incidents. Although the
was issued, the trial court sealed the documents prior to their
release to appellant and the
Commonwealth. At the hearing on this subpoena, the court
The Court, frankly, it reviewed a number of cases that dealt
this issue . . . and it thinks it would be highly prejudicial to
victim to release that information. I frankly don’t believe
can review the information and not tell your client. I think you
have an ethical obligation to tell him and I don’t think that
would be appropriate.
So what the Court’s going to do is seal these records . . . .
But the Court looked at these records very carefully, studied
cases and determined it would not be appropriate to release
The Court thought the others were material to your case.
release those and it thought it was also exculpatory. But I
real test is whether it’s material to your case. You have a
right to it
if it decides it is material. These records aren’t material at
the Court is not going to – you haven’t convinced me
Appellant argues Rule 3A:12(b) mandates "examination and
review" of the subpoenaed
documents "by the parties and counsel." He contends
the rule requires a "determination
regarding materiality be made at the time the subpoena duces
tecum is requested." If the
documents are material, appellant argues, then the trial court
cannot refuse to release the items to
the parties for their examination. We disagree.
Decisions involving discovery issues are within the discretion
of the trial court, and
appellate courts will not reverse those decisions "unless
‘the action taken was improvident and
affected substantial rights.’" O’Brian v. Langley Sch.,
256 Va. 547, 552, 507 S.E.2d 363, 366
(1998) (quoting Rakes v. Fulcher, 210 Va. 542, 546, 172 S.E.2d
751, 755 (1970)). See also
Willard v. Moneta Bldg. Supply, Inc., 258 Va. 140, 153 n.12, 515
S.E.2d 277, 286 n.12 (1999).
An appellant must show prejudice
from the trial court’s ruling before this Court will overturn
the conviction. Gibbs v. Commonwealth, 16 Va. App. 697, 701, 432
S.E.2d 514, 516 (1993).
Rule 3A:12(b) addresses the "[p]roduction of [d]ocumentary
[e]vidence" before a trial
court. Initially, this rule explains the process for obtaining
Upon notice to the adverse party and on affidavit by the party
applying for the subpoena that the requested writings or objects
material to the proceedings and are in the possession of a
not a party to the action, the judge or the clerk may issue a
subpoena duces tecum for the production of writings or objects
described in the subpoena. Such subpoena shall command either
(1) that the individual to whom it is addressed shall appear in
person and with the items described either before the court or
clerk or (2) that such individual shall deliver the items
Although appellant argues the contrary, nothing in this rule
requires that the trial court
make a determination on the materiality of the requested items
prior to issuance of a subpoena.
In fact, the rule does not require any ruling by a judge, as the
clerk also has the authority to issue
a subpoena if a party has filed an appropriate affidavit and
notice. A plain reading of the rule
does not include a requirement that the trial court rule on
materiality prior to the issuance of a
subpoena. See Rasmussen v. Commonwealth, 31 Va. App. 233, 238,
522 S.E.2d 401, 403
(1999) (noting courts prefer to use the plain meaning of words
Appellant also contends that, once the requested items are
produced, Rule 3A:12(b)
requires that a trial court allow all the parties access to
those items without limitation. He relies
on the following language of the rule:
Any subpoenaed writings and objects, regardless by whom
requested, shall be available for examination and review by all
parties and counsel. Subpoenaed writings or objects shall be
received by the clerk and shall not be open for examination and
review except by the parties and counsel unless otherwise
by the court.
Rule 3A:12(b) then provides:
Where subpoenaed writings and objects are of such nature or
content that disclosure to other parties would be unduly
the court, upon written motion and notice to all parties, may
such relief as it deems appropriate, including limiting
removal and copying.
The Commonwealth argues the above provision permits the trial
court to limit access to the
subpoenaed items. We agree with the Commonwealth that trial
courts are permitted to restrict
the viewing of subpoenaed documents.
The provision of Rule 3A:12(b) that prohibits "examination
and review except by the
parties and counsel" is modified by the clause "unless
otherwise directed by the court." This
language plainly allows the court to either expand or limit the
normal conditions for viewing the
subpoenaed items, whether the examination is by the parties,
counsel, or non-parties. See Green
v. Commonwealth, 28 Va. App. 567, 569, 507 S.E.2d 627, 629
(1998) (explaining that courts
should consider the plain language of a statute when determining
its meaning); Gilliam v.
Commonwealth, 21 Va. App. 519, 522-23, 465 S.E.2d 592, 594
Without judicial authority to limit review by the parties, items
that are immaterial to the
proceedings could be provided to the parties.
To avoid allowing an opposing party access to
items that are immaterial, a trial court must review the
requested documents and determine
whether they are material. Without issuing the subpoena to
obtain those documents, a trial court
would have no opportunity to review their contents and rule on
their materiality. For example, in
Gibbs, 16 Va. App. at 698-99, 432 S.E.2d at 515, a case cited by
appellant, the trial court
"reviewed the documents [produced by the bank’s
representative] in camera and ruled" on their
materiality. See also N. Am. Mortgage Investors v. Pomponio, 219
Va. 914, 252 S.E.2d 345
(1979) (remanding a case for the trial court to review the
subpoenaed documents and determine
if they were subject to a privilege). Clearly, the trial court
can consider, after the production of
the documents, whether the items are material or immaterial to
the proceedings for which they
were subpoenaed. See, e.g., NAACP, Inc. v. Comm. on Offenses
Against the Admin. of Justice,
199 Va. 665, 101 S.E.2d 631, vacated on other grounds, 358 U.S.
40 (1958) (discussing a trial
court’s denial of a motion to quash subpoenas duces tecum after
they were issued).
The following provision of Rule 3A:12(b), which allows the court
to limit disclosure of
items that are "unduly prejudicial" by means such as
"limiting disclosure, removal and copying,"
makes sense only if it refers to the court’s authority to
limit the access of the parties in the case,
as people who are not parties generally are not allowed access
to any subpoenaed documents
under Rule 3A:12(b).
Additionally, while appellant argues that "parties" in
the provision allowing
"examination and review" refers to the people directly
involved in the legal action, he contends
the same word, modified by "other," refers to all
people who are not parties to the action. His
definition of "parties" is contradictory. He defines
"other parties" in the second paragraph of
Rule 3A:12(b), which allows the courts to restrict access to
"unduly prejudicial" subpoenaed
documents, as "non-parties." However, the previous
paragraph generally prohibits non-parties’
access to subpoenaed documents, "unless otherwise directed
by the court." Rule 3A:12(b). As
non-parties are denied access to subpoenaed documents in the
earlier paragraph, appellant’s
argument, that the later paragraph is designed only to give the
court the authority to deny access
to non-parties, makes the earlier portion of the rule
irrelevant. As this Court avoids such
contradictory and strained constructions of statutes, see Green,
28 Va. App. at 569, 507 S.E.2d at
629; Gilliam, 21 Va. App. at 522-23, 465 S.E.2d at 594, we also
avoid such constructions of our
We also note appellant’s argument would eliminate motions to
quash, which are a
third-party’s only option to prevent disclosure of subpoenaed
information, as third-parties do not
receive notice of a subpoena until it is served on them. See
Rule 3A:12(b) (requiring notice to
the adverse party before issuance of a subpoena duces tecum,
but not notice to the non-party).
See, e.g., Kauffmann v. Commonwealth, 8 Va. App. 400, 408, 382
S.E.2d 279, 283 (1989)
(discussing a non-party’s motion to quash after issuance of a
subpoena). Additionally, the
adverse parties also need the option of a motion to quash, as
they may not receive notice of the
request for a subpoena duces tecum until after the
issuance of the subpoena. See Rule 3A:12(b)
(requiring only notice to adverse parties, not notice within a
number of days before the subpoena
is issued). See, e.g., Castelow v. Commonwealth, 29 Va. App.
305, 314-15, 512 S.E.2d 137, 141
(1999) (discussing a motion to quash by the Commonwealth).
Appellant also argues the trial court denied his right to call
for evidence in his favor and
to prepare his defense when it denied him access to Dr. Rountree’s
Commonwealth correctly notes this Court will not overturn a
conviction based on a trial court’s
refusal to grant a subpoena to a defendant unless a showing of
prejudice is made. Gibbs, 16
Va. App. at 701, 432 S.E.2d at 516 ("The trial court’s
refusal to issue a subpoena duces tecum,
however, is not reversible error absent a showing of
prejudice."). Here, the trial court effectively
refused to grant the subpoena for Dr. Rountree’s records when
it sealed those documents.
Because the trial court denied appellant access to these
records, this Court must "determine if
[the] evidence not disclosed to the defense was ‘material.’"
Patterson v. Commonwealth, 3
Va. App. 1, 8, 348 S.E.2d 285, 289 (1986). If the documents are
material, their nondisclosure
has prejudiced appellant "‘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.’" Id. (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)).
After reviewing the sealed documents, we find no reasonable
probability that the result of
the proceeding would have been different if the records were
given to appellant. As the trial
court indicated, nothing in these documents would have provided
appellant with material to
impeach any witnesses. Nothing in these documents suggests
further avenues of investigation of
which appellant was unaware. Therefore, appellant was not
prejudiced by the trial court’s
refusal to provide him access to Dr. Rountree’s records.
II. Refusal to Question Juror during Trial
In the morning on the second day of trial, the prosecutor
informed the trial court and
appellant that Christine Lane, the foster mother of the victim,
had left a message at the
Commonwealth’s office. Lane said "she knew one of the
jurors that was seated from work at
Gateway over a year and a half ago." Lane added, "[A]t
no time did [the victim] ever meet [the
juror] or did he come in contact with her, that she doesn’t
know [the victim], doesn’t know
[Lane’s] husband, she only knows her. And that while [the
juror] was her direct supervisor, [the
victim] did not even live with them."
Lane and the juror had "made eye contact and smiled"
during voir dire, but the victim
was sitting with his father and not Lane. Lane left the
courtroom before voir dire was completed
and did not return that day. During voir dire, the juror
indicated she did not know any of the
witnesses. She indicated she could evaluate the evidence fairly.
Neither defense counsel nor the
prosecutor asked if anyone knew the victim’s foster parents.
Nothing in the record suggests that
the juror ever notified the trial court concerning problems with
her impartiality nor that the
juror’s demeanor during the trial suggested any bias against
appellant. Lane was not called as a
After hearing about the message from Lane, appellant asked the
trial court to inquire of
the juror "[i]f she noticed anyone in the courtroom that
she knew, that she knew personally,
whether it was a witness or not, and whether the fact that that
person was sitting in the courtroom
had — might, in her mind, have any connection with this
case." The court denied appellant’s
request, stating, in part:
[The juror] answered all the Court’s questions, all your
voir dire questions, and the Commonwealth’s questions.
* * * * * * *
I really just don’t see why we should interrupt these
deal with that. There is nothing that shows that there is any
prejudice here to anybody. [Lane] is not a witness.
* * * * * * *
I think you’ve had an opportunity to ask them every question
possibly could, and you chose not to ask them whether or not
had any relation and I don’t see that it has anything to do
At the beginning of the third day of trial, appellant argued the
victim "mention[ed] the
name of his foster parent, Christine Lane, a couple of
times." He contended the juror "must
know" who Lane was, which caused "a great
concern." He then moved for a mistrial. The trial
court indicated appellant would not have been able to strike the
juror for cause; therefore, the
court denied the motion for a mistrial. On appeal, appellant
argues the trial court "had a duty to
inquire" into the possibility that the juror recognized
Lane and had a duty to grant the motion for
a mistrial when she refused to allow a hearing on the issue.
This appeal does not involve allegations of juror misconduct.
Appellant does not claim a
juror untruthfully answered a question during voir dire.
The attorneys did not ask the venire
panel any questions about knowing the victim’s parents or
foster parents. Instead, the allegation
involves a series of speculative links: the possible recognition
of Lane, which possibly could
lead to an understanding that Lane was a foster parent of the
victim, which could have caused the
juror to remember possibly positive impressions of Lane from
their prior working relationship,
and those feelings could have possibly biased the juror against
appellant, such that she would
ignore the trial court’s instructions to evaluate the evidence
and apply the law impartially. We
find this claim of the potential for bias did not necessitate a
hearing on the juror’s recognition of
A defendant is "entitled to a fair trial, but not a perfect
one." Lutwak v. United States,
344 U.S. 604, 619 (1953). See also Smith v. Phillips, 455 U.S.
209, 217 (1982) (noting voir dire
is not "infallible" as "it is virtually
impossible to shield jurors from every contact or influence
that might theoretically affect their vote"). "One
touchstone of a fair trial is an impartial trier of
fact – ‘a jury capable and willing to decide the case solely
on the evidence before it.’"
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554
(1984) (quoting Smith v.
Phillips, 455 U.S. 209, 217 (1982)).
Through voir dire and other competent evidence, the trial court
must examine the venirepersons for signs of a mind set that
"‘would prevent or substantially impair the performance
duties [of] a juror in accordance with his instructions and his
Swanson v. Commonwealth, 18 Va. App. 182, 185, 442 S.E.2d 702,
704 (1994) (quoting Satcher
v. Commonwealth, 244 Va. 220, 236, 421 S.E.2d 821, 831 (1992)) .
See also McDonough
Power Equipment, 464 U.S. at 554 ("Voir dire examination
serves to protect that [fair trial] right
by exposing possible biases, both known and unknown, on the part
of potential jurors.").
When the issue [of impermissible juror bias] arises from a
"midtrial" challenge to a juror’s impartiality, we
"will reverse the
trial court’s decision only for an abuse of discretion,"
"same standard" of review appropriate to appellate
of a decision to seat a venireperson. Hunt v. Commonwealth, 25
Va. App. 395, 399, 488 S.E.2d 672, 674 (1997); see David v.
Commonwealth, 26 Va. App. 77, 80, 493 S.E.2d 379, 381 (1997)
(juror impartiality [is] a factual determination, disturbed on
only for "manifest error"). Hence, we will not
overturn "the denial
of a motion for a mistrial . . . unless there exists a manifest
probability that [the ruling] was prejudicial." Taylor [v.
Commonwealth], 25 Va. App. [12,] 17, 486 S.E.2d [108,] 110
Green v. Commonwealth, 26 Va. App. 394, 401, 494 S.E.2d 888, 891
Appellant argues the trial court had a duty to conduct a hearing
and investigate the
potential for bias by questioning the juror once he made his
request for the hearing. As part of
this position, appellant contends public confidence in the
integrity of the criminal process
necessitates, at minimum, a hearing into any allegation of
potential bias or misconduct by a juror.
This Court has not previously addressed this specific question.
Several federal courts do not require an evidentiary hearing
whenever an allegation of
bias is made. See United States v. Frost, 125 F.3d 346, 377 (6th
Cir. 1997) (explaining that a
hearing is required only "when the alleged contact [with a
juror] presents a likelihood of
affecting the verdict"); United States v. Angulo, 4 F.3d
843, 847 (9th Cir. 1993) ("An
evidentiary hearing is not mandated every time there is
an allegation of jury misconduct or bias."
(emphasis in original)); United States v. Caldwell, 776 F.2d
989, 998 (11th Cir. 1985) ("The
more speculative or unsubstantiated the allegation of
misconduct, the less the burden to
investigate. . . . The more serious the potential jury
contamination, especially where alleged
extrinsic influence is involved, the heavier the burden to
investigate."). These circuits have held
that the trial court must first determine whether the claim of
bias or misconduct is reasonable. If
the claim is reasonable, then the trial court should investigate
the allegation by holding an
evidentiary hearing at which jurors may testify. United States
v. Rigsby, 45 F.3d 120, 124-25
(6th Cir. 1995) ("When there is a credible allegation
of extraneous influences, the court must
investigate sufficiently to assure itself that constitutional
rights of the criminal defendant have
not been violated." (emphasis added)); United States v.
Davis, 15 F.3d 1393, 1412 (7th Cir.
1994) ("A court is under no obligation to inquire into the
possibility of improper influence until
the defendant comes forward with a colorable allegation of
taint."); United States v. Barshov,
733 F.2d 842, 851 (11th Cir. 1984) ("The duty to
investigate arises only when the party alleging
misconduct makes an adequate showing of extrinsic influence to
overcome the presumption of
We adopt the approach of the several federal circuits. In
situations such as the case
before us, the trial court should consider the totality of the
circumstances and determine whether
a party presented credible allegations of bias that undermine
the prior determination of
impartiality reached by the court at the conclusion of the voir
dire process. Cf. Haddad v.
Commonwealth, 229 Va. 325, 330, 329 S.E.2d 17, 20 (1985)
(holding that Virginia courts should
be reluctant to presume prejudicial misconduct by jurors);
Patterson v. Commonwealth, 39
Va. App. 658, 669, 576 S.E.2d 222, 228, (2003) (noting
impartiality is evaluated by examining
the entire voir dire); David v. Commonwealth, 26 Va. App.
77, 81, 493 S.E.2d 379, 381 (1997)
(noting juror impartiality is a factual determination of the
trial court). In this case, we find the
trial court did not err in refusing to investigate the
allegation of potential bias. Appellant was not
prejudiced by the trial court’s refusal to conduct a hearing
under these circumstances.
Appellant does not allege that the juror answered a voir dire
question untruthfully. As
the trial court noted, the veniremen were not asked if they knew
Lane. If appellant believed an
acquaintance with Lane was an important determinate of possible
bias, he had the opportunity to
ask that question. As the Supreme Court noted in a case
questioning juror bias at the conclusion
of a trial:
[I]t ill serves the important end of finality to wipe the slate
simply to recreate the peremptory challenge process because
counsel lacked an item of information which objectively he
have obtained from a juror on voir dire examination.
McDonough Power Equip., 464 U.S. at 555. Cf. LeVasseur v.
Commonwealth, 225 Va. 564,
582, 304 S.E.2d 644, 653 (1983) (affirming a conviction where
the defendant was given "every
reasonable opportunity to ask relevant questions which would be
designed to elicit bias or
prejudice on the part of prospective jurors").
Additionally, the information from Lane did not credibly allege
any favoritism toward the
victim or bias against appellant. Lane’s statement said only
that she knew the juror was her
supervisor two years earlier and that the juror had never met
the victim. Apparently, they "made
eye contact and smiled" during voir dire.
However, the record contains no direct evidence that the juror
remembered Lane, and no
evidence suggests that the juror was influenced by any
recognition of her former subordinate.
The juror never saw Lane with the victim. Although appellant
alleges Lane was mentioned
numerous times during the victim’s testimony, he neglects to
point to those specific instances in
the record. This Court has found only one reference to "the
Lanes" in the victim’s testimony as
presented in the appendix.
Lane’s statement said only that she and the juror had a
working relationship at one point
almost two years earlier. Nothing in the statement suggested
they had seen each other in the
intervening years. Nothing suggested the juror had a particular
fondness for Lane. Nothing
suggested the juror had a bias in favor of Lane such that she
would ignore the trial court’s
instruction to evaluate the evidence and apply the law fairly.
Nothing in the record indicates any
of the jurors exhibited a lack of impartiality.
The juror who allegedly knew Lane did not attempt to contact the
trial court about any
bias. During voir dire she indicated that she could
evaluate the evidence fairly and impartially.
Although appellant’s counsel asked the veniremen to "let
the court know" if they recalled "an
influence on your ability to be impartial in this case,"
the juror never contacted the trial court.
Nothing suggests the juror ignored the final instructions from
In Green, 26 Va. App. 394, 494 S.E.2d 888, this Court considered
an analogous issue.
Instead of a message from a third party, however, Green involved
a note from the jury, which
had been excused to begin its deliberations. The note indicated
that "relatives of [one juror]
were involved in a drive-by shooting." Id. at 399, 494
S.E.2d at 890. During voir dire, the
potential jurors were asked if members of their "immediate
family [had] been the victim of a
crime involving the use of a firearm." Id. at 397, 494
S.E.2d at 889. This Court found, "[T]he
note did not establish an untruthful response on voir dire.
Moreover, the note clearly did not
facially demonstrate bias or partiality. Thus, defendant failed
to demonstrate both juror
misconduct and bias." Id. at 402, 494 S.E.2d at 891-92.
This conclusion applies to the present
case, perhaps more strongly as no juror contacted the
trial court and appellant makes no
allegations of an untruthful response during voir dire.
Appellant did not ask for any additional instruction to the jury
on personal biases. He did
not ask to question Lane on her relationship with the juror. On
appeal, he only speculates that a
bias existed that influenced the outcome of the trial. Nothing
in the record lends credence to this
assertion. The trial court did not err in denying appellant’s
motion to examine the juror nor in
denying the motion for a mistrial.
III. Failure to State an Offense in the Indictments
Three of the original indictments read:
The Grand Jury Charges that, in the City of Newport News: John
Byrd Nelson, On or about the 24th day of August, 2000, through
the 25th day of August, 2000, feloniously did cause [the
child under the age of thirteen (13) years to commit sodomy, in
violation of ? 18.2-67.1 of the Code of Virginia (1950) as
The indictments also referenced Code ? 18.2-67.1(A)(1).
Appellant argued in a pretrial motion that this language
"failed to allege an offense under
Section 18.2-67.1." He explained that the indictments’
language suggested a violation of the
section of the statute criminalizing behavior that "causes
a complaining witness, whether or not
his or her spouse, to engage in such acts with any other
person." The Commonwealth explained
it did not intend to prosecute appellant under a theory that he
caused the victim to engage in
sodomy with a third person, but instead that appellant forced
the victim to commit sodomy with
him. The prosecutor then moved to amend the indictments to
clarify this intent. Appellant
objected, explaining, "our position is the indictments are
fatally defective as is, and therefore,
simply making an amendment to the language doesn’t make them
The trial court allowed the Commonwealth to amend the
indictments, eliminating the
"feloniously did cause" wording and replacing it with
"did feloniously engage in sodomy with."
Appellant appeals, arguing the indictment was fatally defective
and should have been dismissed,
not amended, by the trial court. The Commonwealth argues on
appeal that the indictments were
not fatally flawed and that the amendments did not change the
nature of the offense charged. We
agree with the Commonwealth.
"An indictment need not be drafted in the exact words of
the applicable statute so long as
the accused is given notice of the nature and character of the
offense charged." Black v.
Commonwealth, 223 Va. 277, 282, 288 S.E.2d 449, 451 (1982).
When considering on appeal whether an indictment charged a
particular offense, we limit our scrutiny to the face of the
document. When a statute . . . "contains more than one
grade of an
offense and each grade carries a different punishment[,] the
indictment must contain an assertion of the facts essential to
punishment sought to be imposed." Hall v. Commonwealth, 8
Va. App. 350, 352, 381 S.E.2d 512, 513 (1989).
Moore v. Commonwealth, 27 Va. App. 192, 198, 497 S.E.2d 908,
910-11 (1998). Additionally,
Code ? 19.2-220 states, "In describing the offense, the
indictment or information may use the
name given to the offense by the common law, or the indictment
or information may state so
much of the common law or statutory definition of the offense as
is sufficient to advise what
offense is charged."
The original indictment here alleged appellant
"caused" the victim to commit sodomy in
violation of Code ? 18.2-67.1.
The indictment mentioned only two people, appellant and the
victim. The language of the indictment did not exclude the
possibility that appellant was the
person with whom the victim was "caused" to commit
sodomy. The use of "caused," as opposed
to "engaged in," in this context was not a fatal
variance. See Morris v. Commonwealth, 33
Va. App. 664, 668, 536 S.E.2d 458, 460 (2000) (finding the
difference between the terms
"adjudicated" and "determined" did not
create a fatal variance in an indictment for driving after
having been adjudicated an habitual offender). Therefore, the
indictment was not void when it
Appellant argues the precedents of Powell v. Commonwealth, 261
Va. 512, 552 S.E.2d
344 (2001), and Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d
411 (1976), require that this
Court overturn his convictions. We find these cases are not
Powell did involve an amendment to an indictment. However,
Powell did not argue the
original indictment was void; he argued the amendment
"impermissibly expanded the nature and
character of the charges." 261 Va. at 532-33, 552 S.E.2d at
356. In Powell, the Commonwealth
amended the capital murder indictment to add two alternative and
additional counts to the
indictment. Id. at 534, 552 S.E.2d at 356-57. The Supreme Court
found the amendment allowed
the fact finder to convict Powell of an additional offense
of capital murder under Code
? 18.2-31(5). Id. Appellant does not argue the amendment
allowed the fact finder to convict
him of two offenses on each indictment instead of one.
Therefore, Powell does not control our
Wilder is likewise inapplicable to the case before us. Wilder
was indicted for
"possession" of a stolen credit card, which the
Supreme Court held did not describe a crime
under the Code section with which he was charged. 217 Va. at
147-48, 225 S.E.2d at 413.
Appellant argues his case is similar as the indictments charging
sodomy failed to name a third
person with whom appellant "caused" the victim to
engage in sodomy, a different type of
sodomy under Code ? 18.2-67.1(A).
We find the original indictments, although oddly worded, did
describe a crime under
Code ? 18.2-67.1(A) with sufficient specificity to provide
notice to appellant. The indictments
listed only two names, appellant and the victim, as the people
involved in the circumstances.
The language was sufficient to "give the accused notice of
the nature and character of the offense
charged." Id. at 147, 225 S.E.2d at 413.
IV. Denial of Motion for a Bill of Particulars
"[W]hether to require the Commonwealth to file a bill of
particulars is a matter that falls
within the sound discretion of the trial court . . . ."
Walker v. Commonwealth, 258 Va. 54, 63,
515 S.E.2d 565, 570 (1999). Appellant argues the trial court
abused this discretion because he
required a bill of particulars to give him notice of the
particular acts of sodomy that each
indictment alleged, especially as the indictments alleged sodomy
on the same day and with the
same victim. We find the trial court did not abuse its
discretion in denying his motion.
"‘The purpose of a bill of particulars is to state
sufficient facts regarding the crime to
inform an accused in advance of the offense for which he is to
be tried. He is entitled to no
more.’" Swisher v. Commonwealth, 256 Va. 471, 480, 506
S.E.2d 763, 768 (1998) (quoting
Hevener v. Commonwealth, 189 Va. 802, 814, 54 S.E.2d 893, 899
(1949)). Appellant knew
sufficient facts about the Commonwealth’s case without a bill
of particulars. He heard the victim
testify at a preliminary hearing regarding the particular acts
of sodomy committed with appellant
on the day in question. He had a transcript of that hearing.
Prior to the trial in which he was
convicted, appellant heard the victim testify on these same
indictments at a previous trial that
ended in a mistrial.
A bill of particulars could not have provided appellant with any
more information than he
already had. The trial court did not abuse its discretion in
denying appellant’s motion.
V. Failure to Consolidate Sodomy Indictments
Appellant argues Blockburger v. United States, 284 U.S. 299
(1932), prohibits more than
one indictment for the same offense when the indictments allege
the same elements. He
contends, therefore, the several convictions of sodomy under
Code ? 18.2-67.1(A)(1) were
unconstitutional. Appellant misapplies Blockburger.
Appellant was charged with three counts of sodomy, all occurring
on the same day and
with the same victim. Appellant made a motion to consolidate the
three sodomy indictments into
one, as they described the same offense facially. The trial
court denied the motion. The
Commonwealth’s evidence proved three different acts of sodomy
occurred between the victim
and appellant on the day alleged in the indictments. Appellant
does not deny that three "separate
volitional acts" occurred. Instead, he argues they were
part of a continuing "transaction," best
viewed as one crime.
The issue of [whether double jeopardy prohibits] multiple
punishments actually arises in two contexts. First, two or more
statutes may proscribe a particular course of conduct as
offenses. Second, a defendant’s conduct may constitute more
one violation of a single criminal proscription. In either
the question is what punishments are constitutionally
The question of what punishments are constitutionally
is not different from the question of what punishments the
legislature authorized. The legislature in its discretion may
determine the appropriate "unit of prosecution" and
set the penalty
for separate violations. The double jeopardy clauses prohibit
courts from exceeding the legislative authorization by imposing
multiple punishments for the same offense.
Jordan v. Commonwealth, 2 Va. App. 590, 593-94, 347 S.E.2d 152,
154 (1986) (citations and
footnote omitted). The question here, therefore, is whether Code
? 18.2-67.1(A) authorizes
multiple punishments in the context of this case. We find the
legislature intended to allow
multiple units of prosecution in cases such as this.
Code ? 18.2-67.1(A) proscribes "cunnilingus, fellatio,
anallingus, or anal intercourse
with a complaining witness." (Emphasis added.) This
disjunctive language indicates that the
legislature intended each act constitute a discrete unit of
prosecution. We find Kelsoe v.
Commonwealth, 226 Va. 197, 308 S.E.2d 104 (1983), is analogous
to this case. In Kelsoe, the
Supreme Court held a defendant could be convicted of three
offenses of brandishing a firearm
for pointing the gun at three different people on the same
occasion. Id. See also Shears v.
Commonwealth, 23 Va. App. 394, 477 S.E.2d 309 (1996) (allowing
two convictions of
possession of illegal substances).
Given the legislative intent, as indicated by the language of
the statute, the trial court here
did not err in denying appellant’s motion for merger of the
We find appellant’s arguments are without merit. We affirm his
an earlier trial that ended with a hung jury. During oral argument on this
appeal, Judge Frank realized his wife sat on that earlier jury.
Although Judge Frank offered to
recuse himself, the parties indicated they did not object to him
remaining on the panel.
As most of the
particulars of the offenses are not directly relevant to appellant’s
arguments, the specific factual bases for the convictions are
not discussed in this opinion.
allowed access to Dr. John Lee’s records, the physician who initially
discovered the victim was hearing voices and who prescribed
medication for the condition prior
to these incidents. Dr. Lee testified at trial.
court previously allowed appellant and the Commonwealth to review the
subpoenaed records of Dr. Lee, who treated the victim prior to
the incident date.
and prejudice are different concepts. See Neeley v. Commonwealth, 17
Va. App. 349, 356-57, 437 S.E.2d 721, 725 (1993) (discussing
relevance, materiality, and
prejudice as three different concepts).
While a party
must aver an affidavit that requested writings and/or objects are material,
nothing in the Rules suggest this statement by a party is
binding on the court or non-reviewable.
defendant does not have a right to discovery, except as to exculpatory
evidence. See Weatherford v. Bursey, 429 U.S. 545, 559-60 (1977)
(explaining the Constitution
does not include a general right to discovery in criminal
cases); Brady v. Maryland, 373 U.S. 83,
87 (1963) (finding the state must provide a defendant with
information that could be used to
impeach the state’s witnesses); Lowe v. Commonwealth, 218 Va.
670, 679, 239 S.E.2d 112, 118
(1977) ("There is no general constitutional right to
discovery in a criminal case."); Knight v.
Commonwealth, 18 Va. App. 207, 212, 443 S.E.2d 165, 168 (1994)
(finding due process does
require disclosure of exculpatory evidence). However, the case
law in Virginia clearly gives a
defendant the right to request a subpoena duces tecum for
evidence that is inculpatory or
exculpatory, as long as the object of the subpoena is material
to the case. See Cox v.
Commonwealth, 227 Va. 324, 328-29, 315 S.E.2d 228, 230-31 (1984)
requested by Cox in a subpoena duces tecum and used by
the Commonwealth to prove its case
were "material, and that denying the defendant access
thereto violated her constitutional right
[under Article I, ? 8 of the Virginia Constitution] ‘to call
for evidence in [her] favor’").
only that she recognized the juror as her supervisor from a job that she
held two years previous to the trial. She did not describe the
relationship as personal or even
friendly. She did indicate the victim was not living with her
when she held the job. Appellant
never asked to examine Lane regarding the nature of her
relationship with the juror.
the appellant or a third person, the statute criminalizes both behaviors as
"sodomy" and provides the same sentencing range.
also seems to argue the indictments did not specify that the victim and
appellant were not married (an element of one type of sodomy
listed in Code ? 18.2-67.1(A)).
Appellant mentioned this portion of the statute while arguing to
the trial court. However, he did
not make the argument to the trial court that he now proposes on
appeal. Therefore, he has not
preserved this part of his argument for appeal. See Chase v.
Commonwealth, 37 Va. App. 194,
197, 555 S.E.2d 422, 424 (2001) (explaining the same argument
must be made to the trial court
to preserve the particular issue for appeal).
Commonwealth has never argued that the indictments were sufficient to charge
sodomy under the second category criminalized by the Code
section; therefore, we need not
consider appellant’s arguments on that issue.