COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank1
Argued at Chesapeake, Virginia
JOHN BYRD NELSON
OPINION BY
v. Record No. 3022-02-1 JUDGE ROBERT P. FRANK
DECEMBER 2, 2003
COMMONWEALTH OF VIRGINIA
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.2
1
Appellant had 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.
2
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.
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.3 Although the subpoena
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 explained:
The Court, frankly, it reviewed a number of cases that dealt with
this issue . . . and it thinks it would be highly prejudicial to the
victim to release that information. I frankly don’t believe that you
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 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 the
cases and determined it would not be appropriate to release them.
The Court thought the others were material to your case.4 It did
release those and it thought it was also exculpatory. But I think the
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 all and
the Court is not going to – you haven’t convinced me otherwise.
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.
3
Appellant was 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.
4
The 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.
-2-
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 prejudice5 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 documents:
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. 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 the
clerk or (2) that such individual shall deliver the items described to
the clerk.
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 in statutes).
5
Materiality 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).
-3-
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 directed
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 prejudicial,
the court, upon written motion and notice to all parties, may grant
such relief as it deems appropriate, including limiting disclosure,
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 (1996).
Without judicial authority to limit review by the parties, items that are immaterial to the
proceedings could be provided to the parties.6 To avoid allowing an opposing party access to
6
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.
-4-
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
-5-
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
Rules.
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 records.7 The
7
A criminal 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
-6-
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
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) (finding documents
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’”).
-7-
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
witness.
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 questions,
voir dire questions, and the Commonwealth’s questions.
* * * * * * *
I really just don’t see why we should interrupt these proceedings to
deal with that. There is nothing that shows that there is any kind of
prejudice here to anybody. [Lane] is not a witness.
* * * * * * *
I think you’ve had an opportunity to ask them every question you
possibly could, and you chose not to ask them whether or not they
-8-
had any relation and I don’t see that it has anything to do with the
case.
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,8
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
Lane.
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
8
Lane indicated 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.
-9-
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 of [the]
duties [of] a juror in accordance with his instructions and his
oath.’”
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,” applying the
“same standard” of review appropriate to appellate consideration
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 appeal
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
[(1997)].
Green v. Commonwealth, 26 Va. App. 394, 401, 494 S.E.2d 888, 891 (1998).
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.
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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
jury impartiality.”).
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.
- 11 -
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 clean
simply to recreate the peremptory challenge process because
counsel lacked an item of information which objectively he should
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.
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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 the court.
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
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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 victim], a
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
amended.
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 legally sufficient.”
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.”
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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 the
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 § 18.2-67.1.9 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
9
Whether with the appellant or a third person, the statute criminalizes both behaviors as
“sodomy” and provides the same sentencing range.
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“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
was amended.
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 controlling here.
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
decision here.
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).10
10
Appellant 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,
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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 413.11
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
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).
11
The 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.
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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 criminal
offenses. Second, a defendant’s conduct may constitute more than
one violation of a single criminal proscription. In either context,
the question is what punishments are constitutionally permissible.
The question of what punishments are constitutionally permissible
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 the
courts from exceeding the legislative authorization by imposing
multiple punishments for the same offense.
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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 indictments.
VI. Conclusion
We find appellant’s arguments are without merit. We affirm his convictions.
Affirmed.
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