COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia
LARS JAMES HANSON
OPINION BY
v. Record No. 1311-97-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 26, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jack B. Stevens, Judge
Peter D. Greenspun (Cynthia A. Bailey;
Peter D. Greenspun & Associates, P.C., on
briefs), for appellant.
Ruth Morken McKeaney, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Lars James Hanson ("appellant") was convicted by jury trial
in the Circuit Court of Fairfax County of first degree murder.
Appellant contends the trial court erred: (1) by failing to
grant a mistrial after the Commonwealth asked him questions on
cross-examination about statements he made regarding an unrelated
offense without previously having disclosed those statements
pursuant to a discovery order entered under Rule 3A:11; (2) by
failing to grant a mistrial or to strike the Commonwealth's
questions about his statements based on their irrelevance to any
issue presented at trial; and (3) by failing to advise the jury
during its sentencing deliberations that he would be ineligible
for parole. For the reasons that follow, we affirm.
I.
BACKGROUND
On the evening of March 25, 1996, appellant and his
girlfriend, Virginia Price, drove into a Shell station to
purchase gasoline. As appellant pumped gas, William Henry Gaumer
and David Stallard drove up in Gaumer's van to a nearby pump.
According to appellant, Stallard made several unwelcome comments
to Price as he walked by her on his way to and from the station.
Ignoring Stallard's comments, appellant finished pumping gas and
walked to the cashier booth to pay. As appellant returned and
got in his vehicle to leave, he saw Stallard make a sexual
gesture toward Price. In response, appellant took a large
hunting knife out of his vehicle, went over to Stallard, and
fatally stabbed Stallard as he sat in the front passenger seat of
Gaumer's van with the window down.
Before trial, appellant gave notice on August 27, 1996 of
"his intent to present evidence on the issue of his sanity at the
time of the crime charged." On January 23, 1997, pursuant to
Rule 3A:11, the court entered a discovery and inspection order.
The order required the Commonwealth to permit appellant:
to inspect, copy and/or photograph (1) all
written or recorded statements or confessions
made by the accused, or copies thereof, or
the substance of any oral statements or
confessions made by the accused to any law
enforcement officer, the existence of which
is known to the Attorney for the Commonwealth
. . . .
At trial, appellant's counsel presented evidence to
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establish that appellant suffers from a mental condition known as
Intermittent Explosive Disorder and that he acted under the
irresistible impulse of this condition when he stabbed Stallard
to death. To this end, appellant testified broadly on direct
examination about his past, including information regarding his
upbringing, prior convictions, and experiences within the penal
system. One such experience occurred in 1990 in Ocean City,
Maryland, and resulted in appellant's conviction for attempted
murder. Appellant testified with respect to that incident,
stating he became involved in an altercation with three men after
coming to the aid of a friend. Realizing that he was outnumbered
and surrounded by these men, appellant pulled out a gun "hoping
that they would stop" advancing on him. Appellant further
testified:
Q. Did they [stop]?
A. They didn't stop. Then the next thing
you know, the trigger was pulled.
Q. You pulled it?
A. I pulled the trigger. The guy who was
right in front of me he was the one who was
shot, and we were just standing there looking
at each other and then I kept hearing my
name, "Lars, Lars, Lars," which was I think
either Rick or Isaac who was with me, and
then I just -- I snapped out of it, and just
they said, "Come on. Come on," and we were
leaving.
On cross-examination, the Commonwealth asked appellant
whether he felt sorry for shooting the man in Maryland.
Appellant replied, "Yes." Appellant subsequently objected to
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this inquiry on the ground of relevance; his objection was
overruled. The Commonwealth then questioned appellant regarding
statements he made to Maryland police officers after the
shooting. Specifically, the Commonwealth asked whether appellant
recalled saying he "did not feel bad about shooting [his]
victim," that he "wished the exit wound could be even bigger,"
and that he wished he had his nine millimeter so his target
"would have dropped to the ground." Appellant denied making all
such statements.
Notwithstanding the trial court's discovery and inspection
order, the Commonwealth had not disclosed these statements before
appellant's trial. Appellant immediately objected to the
statements' relevance. Following appellant's testimony,
appellant also moved for a mistrial, arguing the statements were
irrelevant and the Commonwealth should have disclosed them
pursuant to the court's discovery order. The court overruled
appellant's objection and denied his motion for a mistrial,
stating that the discovery order's scope was limited to the
offense presently on trial.
The jury found appellant guilty of first degree murder and
subsequently, during sentencing deliberations, sent a note to the
court asking the following question: "what is the minimum amount
of time someone would have to serve if he was sentenced to 20
years, 30 years, [and] 40 years?" In response, the court advised
the jury that it "need not concern itself with the answer to this
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question." Outside the presence of the jurors, appellant's
counsel noted that the question was "directed toward the issue of
parole" and argued that it should be answered. The court
disagreed, noting appellant's objection.
II.
STATEMENTS SUBJECT TO THE DISCOVERY ORDER
Appellant first argues the trial court committed reversible
error by failing to grant a mistrial based on the Commonwealth's
cross-examination reference to his statements to Maryland
authorities, which had not been disclosed pursuant to the court's
pretrial discovery order. We disagree.
Rule 3A:11(b)(1) requires a circuit court trying a felony
case, upon written motion, to order the Commonwealth to permit
the defendant access to:
any relevant (i) written or recorded
statements or confessions made by the accused
. . ., or the substance of any oral
statements or confessions made by the accused
to any law enforcement officer, the existence
of which is known to the attorney for the
Commonwealth . . . .
As the text of the rule indicates, the Commonwealth's obligation
to disclose both recorded and oral statements is subject to a
relevancy condition. Accordingly, we first decide whether
appellant's oral statements to Maryland authorities regarding his
involvement in a shooting approximately seven years before the
discovery order at issue were "relevant" to the instant
prosecution for murder, as the term is used in Rule 3A:11(b)(1).
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There are no cases in Virginia directly addressing the issue
of whether statements made to police during the investigation of
an unrelated incident are "relevant" within the meaning of Rule
3A:11(b)(1). However, when construing the meaning of "relevant"
under this rule, we take cognizance of our appellate court
decisions which hold that there is no constitutional right to
discovery in a criminal case and that the accused's statutory
right to discovery is a limited one. Hackman v. Commonwealth,
220 Va. 710, 713, 261 S.E.2d 555, 558 (1980); Bellfield v.
Commonwealth, 215 Va. 303, 306, 208 S.E.2d 771, 773-74 (1974);
Guba v. Commonwealth, 9 Va. App. 114, 118, 383 S.E.2d 764, 767
(1989).
In addition, familiar rules of statutory construction are
instructive and provide guidance in the interpretation of
court-adopted rules. Green v. Lewis Truck Lines, Inc., 443
S.E.2d 906, 907 (S.C. 1994); Vaughn v. Chung, 830 P.2d 668, 672
(Wash. 1992). When interpreting a statute, we examine its
provisions in their entirety, rather than by isolating particular
words or phrases. Ragan v. Woodcroft, 255 Va. 322, 325, 497
S.E.2d 740, 742 (1998); Buonocore v. C&P Tel. Co., 254 Va. 469,
472-73, 492 S.E.2d 439, 441 (1997). When a statute's words are
not sufficiently explicit, we may determine the intent of the
legislature from a comparison of the statute's several parts in
pari materia. Virginia Soc'y for Human Life, Inc. v. Caldwell,
256 Va. 151, 156, 500 S.E.2d 814, 816 (1998). In pari materia is
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the rule of statutory construction that statutes or sections of
the same statute relating to the same subject "'should be read,
construed and applied together so that the legislature's
intention can be gathered from the whole of the enactments.'"
Alger v. Commonwealth, 19 Va. App. 252, 256, 450 S.E.2d 765, 767
(1994) (quoting Black's Law Dictionary 791 (6th ed. 1990)). See
Board of Zoning Appeals of Norfolk v. Kahhal, 255 Va. 476,
480-81, 499 S.E.2d 519, 522 (1998) (finding that the trial
court's reference to various sections of a zoning ordinance in
pari materia in order to determine another section's purpose and
intent did not constitute error). This rule "applies with
peculiar force in the construction of a Code to the several parts
thereof which relate to the same subject-matter, were conceived
by the same minds, prepared by the same hands, and adopted at the
same time by the same legislative body." South & W. Ry. Co. v.
Commonwealth, 104 Va. 314, 321, 51 S.E. 824, 826 (1905).
Viewing Rule 3A:11 as a whole, the limitations dictated in
related and contemporaneously enacted subparagraphs of the Rule
support the conclusion that the term "relevant" as used in
subparagraph (b)(1) does not generally encompass statements
unrelated to the particular offense under prosecution. Rule
3A:11(b)(1)(ii) provides that an accused's discovery of
"relevant" autopsy reports, various tests, and physical and
mental examination reports is limited to those reports "made in
connection with the particular case . . . ." (Emphasis added).
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Similarly, when the accused has been granted discovery of
"relevant" information under Rule 3A:11(b) and intends to rely on
a defense of insanity, the Commonwealth's right to discover "any
written reports of physical or mental examination of the accused"
is limited to those made in connection with the particular case.
Rule 3A:11(c)(3).
Guided, therefore, by the principles of construing related
provisions of Rule 3A:11 in pari materia and the limiting
construction Virginia law has placed on discovery in criminal
cases, we find that appellant's statements to Maryland
authorities were not "relevant" within the meaning of Rule 3A:11.
While the scope of discovery may be enlarged, in appropriate
circumstances, to encompass material which does not relate to the
particular offense under prosecution, there is no basis upon
which to conclude that the scope of permitted discovery was
1
enlarged in this case. Appellant's statements related to
charges in another jurisdiction arising from an incident that
occurred nearly seven years prior to the instant case. The
statements, on their face, manifest no inherent nexus to the
offense being prosecuted. Furthermore, we find nothing in the
1
Although appellant contends the trial court's discovery
order compelled the Commonwealth to provide his counsel with any
and all statements he made to police irrespective of the time
frame or the charges in relation to which they were made, we note
that this order was entered pursuant to, and is limited in scope
by, Rule 3A:11. As such, in the absence of anything in the
record to clearly suggest otherwise, the court's order cannot be
enlarged to encompass statements clearly outside the intended
reach of Rule 3A:11.
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record that suggests appellant intended to prove the existence of
a mental disorder at any time other than the time-frame of the
instant offense or that the Commonwealth was in any way put on
notice that appellant's statements in an unrelated matter were or
would become relevant to appellant's insanity defense or to any
other issue raised in the prosecution of the instant offense.
Neither appellant's notice of his intent to present evidence on
the issue of sanity nor his motion for discovery and inspection
reveals specifically what he expected to prove at trial. In
fact, a fair reading of appellant's notice indicates that
appellant only intended to present evidence regarding his sanity
"at the time of the crime charged" and not evidence of other
instances where appellant's alleged disorder manifested itself. 2
In short, we find no basis on which the Commonwealth could have
concluded that appellant's statements following the Maryland
shooting would be relevant to the instant prosecution and subject
to disclosure according to Rule 3A:11(b)(1) and the court's
discovery and inspection order. The statements in question only
became relevant after appellant's description of the Maryland
shooting on direct examination, thereby "opening the door" to the
Commonwealth's effort to impeach him on cross-examination. "Once
a party has 'opened the door' to inquiry into a subject, the
2
Appellant's notice simply reads, "Please take note that the
defendant, by counsel, hereby gives notice of his intent to
present evidence on the issue of his sanity at the time of the
crime charged in the above matter."
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permissible scope of examination on the subject by the opposing
party is 'a matter for the exercise of discretion by the trial
court' . . . ." Savino v. Commonwealth, 239 Va. 534, 545, 391
S.E.2d 276, 282 (quoting Bunch v. Commonwealth, 225 Va. 423, 438,
304 S.E.2d 271, 279-80, cert. denied, 464 U.S. 977 (1983)), cert.
denied, 498 U.S. 881 (1990). 3
Based on our finding that the statements were not
discoverable under Rule 3A:11(b)(1) and that they became relevant
only by virtue of appellant's direct testimony, we find no abuse
of discretion by the trial court in permitting the reference to
the statements in the Commonwealth's cross-examination of
appellant and no error in the denial of appellant's motion for a
mistrial.
III.
RELEVANCE OF COMMONWEALTH'S CROSS-EXAMINATION
We next address whether the court erred by failing to grant
a mistrial or to strike the Commonwealth's questions concerning
appellant's statements to Maryland authorities based on their
3
Several United States Courts of Appeals have addressed
whether statements introduced by the prosecution only for
rebuttal and impeachment purposes are relevant in the context of
discovery and within the meaning of Rule 16, a rule whose
language at the time of these decisions was analogous to that of
Rule 3A:11. These Courts held that such statements were not
relevant. United States v. Gleason, 616 F.2d 2, 24-25 (2d Cir.
1979), cert. denied, 444 U.S. 1082 (1980); United States v.
Hodges, 480 F.2d 229, 232-33 (10th Cir. 1973); United States v.
Skillman, 442 F.2d 542, 550-51 (8th Cir.), cert. denied, 404 U.S.
833 (1971). Subsequent to these decisions, the scope of
discoverable statements was broadened by amendment to Rule 16.
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evidentiary irrelevance to any issue at trial. For the reasons
set forth below, we find no error.
We initially note that appellant mischaracterizes the
court's alleged error in permitting cross-examination based on
his statements as one involving the improper admission of
irrelevant evidence. It is clear, however, that neither the
statements nor any other evidence tending to establish the
existence of those statements were admitted at trial after
appellant denied making the statements; the statements merely
remained the subject of the Commonwealth's cross-examination of
appellant.
Assuming, however, that appellant's claim of error concerns
the relevance of the Commonwealth's line of inquiry into
appellant's statements regarding the Maryland shooting, as noted
earlier, we find that appellant opened the door to this inquiry
on direct examination and cannot now be heard to complain.
"'Subject to such reasonable limitations as the trial court may
impose, a party has an absolute right to cross-examine his
opponent's witness on a matter relevant to the case, which the
opponent has put in issue by direct examination of the witness.'"
Maynard v. Commonwealth, 11 Va. App. 437, 444, 399 S.E.2d 635,
639 (1990) (en banc) (quoting Basham v. Terry, 199 Va. 817, 824,
102 S.E.2d 285, 290 (1958)).
Appellant's testimony on direct examination regarding the
Maryland shooting advanced his defense that he suffered from an
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intermittent explosive disorder and that his actions in the
instant case were the result of an irresistible impulse.
Appellant described his actions in Maryland using such terms as,
"the next thing you know, the trigger was pulled," and after he
heard a friend calling his name, "I [then] snapped out of it."
The Commonwealth's subsequent questions as to whether appellant
stated to police that he felt "bad" about the shooting, wished
the exit wound "had been even bigger," and wished his target "had
dropped to the ground when shot" relate to elements of the
irresistible impulse test, viz., whether "the accused is able to
understand the nature and consequences of his act and knows it is
wrong, but his mind has become so impaired by disease that he is
totally deprived of the mental power to control or restrain his
act." Thompson v. Commonwealth, 193 Va. 704, 718, 70 S.E.2d 284,
292 (1952). Thus, the Commonwealth's cross-examination regarding
the statements was not improper because they were relevant to
rebut appellant's testimony on direct examination.
We, therefore, find no merit to the appellant's claim of
error based on the trial court's failure to strike the line of
questioning and refusal to grant a mistrial.
IV.
DISCLOSURE OF PAROLE ELIGIBILITY TO JURY
Finally, appellant argues that the trial judge erred in
refusing to inform the jury of his ineligibility for parole
when the jury raised this issue in one of their questions during
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sentencing deliberations. It is well settled that a defendant's
parole ineligibility is "traditionally not [a] factor[] that
juries in Virginia have been permitted to consider in determining
sentence." Mosby v. Commonwealth, 24 Va. App. 284, 292, 482
S.E.2d 72, 75 (1997). See Eaton v. Commonwealth, 240 Va. 236,
248, 397 S.E.2d 385, 392 (1990), cert. denied, 502 U.S. 824
(1991). The General Assembly's abolition of parole for all
persons convicted of felonies committed after January 1, 1995
does not affect this rule. As we have noted in our prior
decisions, this matter is best left to legislative determination,
where the various policy considerations underlying the
advisablity of informing juries of a defendant's parole
ineligibility are more properly addressed. Mosby, 24 Va. App. at
292, 482 S.E.2d at 75.
For the foregoing reasons, we affirm appellant's conviction.
Affirmed.
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Lars James Hanson v. Commonwealth of Virginia
Combined Opinion