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JULY 25, 2000

Record No. 0264-99-4





Benjamin N. A. Kendrick, Judge

Present: Judge Annunziata, Senior Judge Duff
and Judge Clements

Argued at Alexandria, Virginia

James M. Lowe (Katherine D. Carlo, on brief),
for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for


Phillip Moore, appellant, contends the trial
court erred

in quashing a subpoena duces tecum
for the release of evidence in the possession of the police.
Appellant also contends the trial court erroneously permitted the
Commonwealth to comment on his failure to submit to a blood test
and erroneously admitted into evidence an arrest report. Finding
no error, we affirm the trial court.


On October 30, 1997, at 1:40 a.m., Officer Fred
Galati observed appellant’s car travelling twenty to twenty-five
miles over the posted speed limit and "swerve[] from the
left-hand lane into the right-hand lane severely." Galati
engaged his emergency lights in an attempt to stop appellant’s
car. Appellant initially slowed down to 55 miles per hour, the
speed limit, but did not pull over and stop, so Galati engaged
his siren. Appellant continued for one-half mile, then pulled
over. Galati approached the driver’s side door and asked for
appellant’s license and registration. Appellant said,
"Sorry, Officer," placed his car in gear and drove off,
running over Galati’s foot and causing Galati to injure his knee.

Galati pursued appellant at speeds in excess of
105 miles per hour. Appellant eventually lost control of his
vehicle, struck a tree, exited his vehicle and fled on foot.
Galati chased and cornered appellant, who "[r]aised his
hands" as if "he was going to fight." Galati
"pushed [appellant] hard against [a] fence, backed up, took
out [his] mace, and then sprayed him" with it. Galati then
handcuffed appellant, who yelled and cursed at Galati. Although
appellant had no serious injuries, Galati "called a medic
unit to give [appellant] a wash down in the face."

After a jury trial on January 28 and 29, 1999,
appellant was convicted of driving under the influence of alcohol
as a second offense within five years. Appellant was sentenced to
serve twelve months in jail, ordered to pay a $2,500 fine and had
his Virginia operator’s license suspended for three years. This
appeal is from that judgment.


In a December 1998 request for a subpoena duces
tecum directed to Edward Flynn, Arlington County Chief of
Police, appellant sought the following:

1. Tapes of radio traffic concerning the arrest
of the above named defendant on or about October 30, 1997, at
approximately 0140 hours, by Officer Galati. The produced
recording should cover five minutes before the stop through
arrival at the Adult Detention Center[; and]

2. All arrest photographs of the
defendant-originals are requested.

In the accompanying affidavit, defense counsel
averred "that the documents described in the accompanying
Request for Production are material to the above styled
proceedings." The Commonwealth moved to quash the subpoena,
and the trial court heard argument on the motion on December 17,
1998, and quashed the subpoena. Appellant failed to provide a
transcript of that hearing or the trial court’s order.

At the conclusion of the Commonwealth’s
evidence at appellant’s January 28, 1999 jury trial, appellant
moved to strike for various reasons, one of which being he was
"deprived of compulsory process by the Commonwealth in this
case, in that we had sought subpoenas duces tecum
for certain evidence, which was denied to us, which would have
not only been – have every right to have that evidence, but
we have a right to evaluate it on our own." The subpoenas
sought "tapes of the chase and the photographs of the
Defendant taken at the police station on the night of his
arrest," which appellant claimed "would have shown
significant injury to the Defendant." Defense counsel told
the trial judge that another judge "quashed [the] subpoena" in a prior hearing.

Acknowledging the Commonwealth’s duty "to
turn over any exculpatory evidence," the prosecutor, who was
unfamiliar with the original subpoena, the motion to quash and
the order quashing it, had "no reason to think" the
requested items were exculpatory. Finding that the Commonwealth
is "a party to the action under Ramirez [v. Commonwealth,
20 Va. App. 292, 456 S.E.2d 531 (1995)]," the trial judge
denied the motion.

On August 17, 1999, a judge of this Court
denied the issue in appellant’s petition for appeal asserting
that the photographs and tapes were "potentially exculpatory
evidence" to which he was entitled. The bases for the denial
were appellant’s speculative allegations and failure to prove
that the evidence would have been favorable and was, therefore,
exculpatory. On November 23, 1999, a three-judge panel of this
Court granted two of the four issues raised by appellant;
however, "for the reasons set forth in the order of this
Court dated August 17, 1999," the panel refused to address
appellant’s contention that he was denied potentially exculpatory
evidence. We are bound by the panel’s determination that
appellant failed to prove the evidence was exculpatory.

"There is no general constitutional right
to discovery in a criminal case." Swisher v. Commonwealth,
256 Va. 471, 481, 506 S.E.2d 763, 768 (1998), cert. denied,
120 S. Ct. 46 (1999). Rather, discovery is governed by
Virginia law, which under Rule 3A:11 is limited and applies only
to felony charges in the circuit court. See Rule 3A:11(b).
Because appellant was charged with a misdemeanor, Rule 3A:11(b)
did not apply.

Rule 3A:12(b) provides for "Production of
Documentary Evidence and of Objects Before a Circuit Court."
It provides, in pertinent part:

Upon notice to the adverse party and on
affidavit by the party applying for the subpoena that the
requested writings or objects are material to the proceedings and
are in the possession of a person 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.

Rule 3A:12(b) (emphasis added).

"The trial court’s refusal to issue a
subpoena duces tecum . . . is not reversible error
absent a showing of prejudice." Gibbs v. Commonwealth,
16 Va. App. 697, 699, 432 S.E.2d 514, 515 (1993) (citing Conway
v. Commonwealth
, 12 Va. App. 711, 716, 407 S.E.2d 310, 312-13
(1991) (en banc)).

In Ramirez, the defendant contended
"the trial court erred in denying his request for a subpoena
duces tecum directed to the Fairfax Department of
Social Services." Ramirez, 20 Va. App. at 293, 456
S.E.2d at 532. Pursuant to Rule 3A:12(b), Ramirez requested a
subpoena "commanding [DSS] to deliver all documents,
records, reports, statements, investigative reports, photographs,
or other writings or items relating to the allegations of
defendant’s [sexual] misconduct toward [the victim]." Id.
at 294, 456 S.E.2d at 532.

We affirmed the trial court’s denial of the
requested subpoena, finding that reports and internal documents
made by agents of the Commonwealth in connection with the
investigation or prosecution of the case were not discoverable
under Rule 3A:11(b)(2). See id. at 296, 456 S.E.2d
at 533. Moreover, because "the documents of DSS [we]re not
in the possession ‘of a person not a party to the action,’"
we found Rule 3A:12 inapplicable. Id. (quoting Rule

In Cox v. Commonwealth, 227 Va. 324, 329
n.4, 315 S.E.2d 228, 231 n.4 (1984), the defendant "assigned
error to the trial court’s refusal to issue a subpoena duces
tecum requiring the production of certain records of the
City Treasurer." Because the bulk of those records had been
seized by the police and were in the Commonwealth’s custody, the
Supreme Court held "they were not subject to a subpoena duces
tecum, because they were not in the possession ‘of a
person not a party’ to the proceeding." Id.

We find this issue is determined by the
language and reasoning in Ramirez and Cox limiting
the issuance of subpoenas duces tecum to
nonparties. The requested items were in the possession of the
police, who are agents of the Commonwealth. See Cox,
227 Va. at 329 n.4, 315 S.E.2d at 231 n.4; Ramirez, 20 Va.
App. at 296, 456 S.E.2d at 533. Therefore, the items were not in
the possession of a "person not a party to the action."

Moreover, "'[i]n order to assert [a] right
to compulsory process, the accused is required to make a
plausible showing that the testimony sought would be both
material and favorable to his defense.’" Jones v. City of
Virginia Beach
, 17 Va. App. 405, 409, 437 S.E.2d 576, 579
(1993) (quoting Howard v. Commonwealth, 6 Va. App. 132,
144, 367 S.E.2d 527, 534 (1988) (citing United States v.
, 458 U.S. 858, 867 (1982))).

Here, appellant failed to submit the transcript
of the December 17, 1998 hearing at which he argued against
quashing the subpoenas. Therefore, we have no record showing the
bases of appellant’s materiality arguments. In addition, the
record fails to show that radio communication tapes exist and are
available. Moreover, the record fails to show how the booking
photographs and taped radio communications were material to
appellant’s defense in his DUI trial. Cf. Cox, 227
Va. at 328, 315 S.E.2d at 230.


During voir dire of the venire,
the Commonwealth’s attorney provided the following explanation to
potential jurors:

This is a case of driving under the influence
of alcohol, and as you know, in Virginia, I assume you know, the
legal limit is a .08, above which, you’re driving with a BAC, a
blood alcohol level higher than that is a violation of the law.
In this particular case, which is a charge of driving under the
influence of alcohol, there will be no testimony of any chemical
test –

Defense counsel moved for a mistrial [3] and argued this was an improper comment on appellant’s
refusal to take a blood alcohol test, and it amounted to
"the functional equivalent of saying this Defendant took his
Fifth Amendment rights or something." The Commonwealth’s
attorney contended she was simply trying to explain that one way
of proving DUI is by providing evidence other than blood test
results. The trial court found that the prosecutor did not
improperly comment on appellant’s refusal to permit a blood test
in violation of Code ? 18.2-268.10, and it

denied appellant’s motion.

"Code ? 18.2-266 prohibits drinking
alcohol and driving under either of two separate and distinct
circumstances." Thurston v. Commonwealth, 15 Va. App.
475, 482, 424 S.E.2d 701, 705 (1992). Code ? 18.2-266(i) makes
it "unlawful for any person to drive or operate any motor
vehicle . . . while such person has a blood alcohol concentration
of 0.08 percent or more by weight by volume or 0.08 grams or more
per 210 liters of breath as indicated by a chemical test."
Code ? 18.2-266(ii) prohibits driving "while such
person is under the influence of alcohol." "[B]eing
‘under the influence of alcohol,’ is established when any person
has consumed enough alcoholic

beverages to ‘so affect his manner,
disposition, speech, muscular movement, general appearance or
behavior, as to be apparent to observation.’" Thurston,
15 Va. App. at 483, 424 S.E.2d at 705 (quoting Gardner v.
, 195 Va. 945, 954, 81 S.E.2d 614, 619 (1954)).
Therefore, where the Commonwealth offers no chemical test results
of an accused’s blood or breath, the issue becomes whether the
accused is under the influence, which has "’to be determined
from all of the evidence of his condition at the time of the
alleged offense.’" Leake v. Commonwealth, 27 Va. App.
101, 110, 497 S.E.2d 522, 526 (1998) (quoting Brooks v. City
of Newport News
, 224 Va. 311, 315, 295 S.E.2d 801, 804

Code ? 18.2-268.10 provides:

The failure of an accused to permit a blood or
breath sample to be taken to determine the alcohol or drug
content of his blood is not evidence and shall not be subject to
comment by the Commonwealth at the trial of the case, except in
rebuttal; nor shall the fact that a blood or breath test had been
offered the accused be evidence or the subject of comment by the
Commonwealth, except in rebuttal.

Here, because there were no test results, the
Commonwealth was required to prove from other evidence that
appellant drove while under the influence of alcohol. See
Code ? 18.2-266(ii); Brooks, 224 Va. at 315, 295
S.E.2d at 804. Therefore, the prosecutor’s comment was an
accurate and valid statement to prospective jurors advising them
that chemical tests and the statutory rebuttable presumption of
intoxication were not going to be used to prove that appellant
was under the influence of alcohol. Furthermore, in her comments,
the prosecutor made no reference whatsoever to appellant’s
refusal to submit to the chemical test as an explanation for the
need to resort to other evidence. Accordingly, the trial court
did not abuse its discretion in denying appellant’s motion.

During rebuttal, the Commonwealth moved to
admit into evidence Galati’s arrest report in which Galati noted
that appellant "stated ‘I’m drunk.’" Defense counsel
objected on the basis that Galati "can testify as to what he
said about it, but I don’t believe the document comes into
evidence, Your Honor." The trial judge admitted it without
further comment. On appeal, appellant contends the trial court
erred in admitting the arrest report because it contained
inadmissible evidence regarding appellant’s refusal to take a
blood alcohol test. The back of the arrest report contains two
references to "Refused" in the sections describing test

Appellant failed to make a proper objection or
move that the references to refusal be redacted. "The Court
of Appeals will not consider an argument on appeal which was not
presented to the trial court." Ohree v. Commonwealth,
26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); see
Rule 5A:18. Accordingly, Rule 5A:18 bars our
consideration of this question on appeal. Moreover, the record
does not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18.

Accordingly, we affirm the judgment of the
trial court.




[1] Judge Jean Harrison Clements took
part in the consideration of this case by designation pursuant to
Code ? 17.1-400, recodifying Code ? 17-116.01.

[2] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for

[3] "Because the jury had not
been sworn, trial had not commenced, jeopardy had not attached,
and no mistrial could be declared. Therefore, appellant’s remedy
lay in disqualifying the entire jury venire. Whether to
disqualify an entire venire is a matter committed to the sound
discretion of the trial judge." Brown v. Commonwealth,
28 Va. App. 315, 326, 504 S.E.2d 399, 404 (1998).

Because we apply an abuse of discretion
standard in reviewing decisions involving motions to disqualify a
venire, see id., and motions for mistrials, see
Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411,
420 (1993), the failure to make the proper objection was not