COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
Argued at Richmond, Virginia
MARTHA C. TINGLE
MEMORANDUM OPINION* BY
v. Record No. 2764-02-2 JUDGE LARRY G. ELDER
FEBRUARY 24, 2004
CITY OF RICHMOND
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Beverly W. Snukals, Judge
James B. Thorsen (Christopher C. Booberg; Thorsen & Scher,
L.L.P., on briefs), for appellant.
Gregory A. Lukanuski, Assistant City Attorney (John A. Rupp, City
Attorney for the City of Richmond; Office of the City Attorney, on
brief), for appellee.
Martha C. Tingle (appellant) appeals from her misdemeanor conviction for violating a
city ordinance, Richmond Code § 19-52, which prohibits the accumulation of demolition
materials and other types of trash or refuse on one’s property. On appeal, she contends the trial
court erroneously (1) quashed her request for discovery from the city employee who issued the
criminal summons against her; (2) ruled the employee who issued the summons had the authority
to do so; (3) concluded the ordinance under which she was charged was not unconstitutionally
vague; and (4) held the evidence was sufficient to support her conviction. We hold these
assignments of error are without merit, and we affirm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
A.
SUBPOENA DUCES TECUM AND DISCOVERY
Appellant contends the trial court erroneously quashed her request for issuance of a
subpoena duces tecum to Jorge Tirado, which subpoena sought the production of
(1) “documentary material” giving Tirado authority to issue “notice[s] of abatement[ for]
violations of [the] City of Richmond Environmental Code,” (2) “documentary material” giving
Tirado authority “to enforce all provisions of the City environmental code,” and (3) all evidence
of appellant’s violation of the environmental code at 2223-25 Parkwood Avenue on or about
May 5, 2002, “concerning the unlawful accumulation of refuse.” The trial court held that neither
Rule 3A:11 nor 3A:12 supported appellant’s claim of entitlement to such material and that she
failed to establish the material was exculpatory and, thus, discoverable under Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We agree with the trial court’s ruling.
Rule 3A:11 permits discovery in certain circumstances but expressly “applies only to
prosecution for a felony in a circuit court.” Rule 3A:11(a). Because appellant’s prosecution was
for a misdemeanor, Rule 3A:11 did not entitle her to discovery.
Rule 3A:12 provides that a criminal defendant may apply for a subpoena duces tecum to
obtain documents “in the possession of a person not a party to the action,” i.e., a third party, “on
affidavit by [the defendant] that the requested writings or objects are material to the
proceedings.” Rule 3A:12(b). Tirado, as an employee of the City of Richmond, the
governmental entity prosecuting appellant, and the person who requested issuance of the
criminal summons, was a party to the action. See Ramirez v. Commonwealth, 20 Va. App. 292,
296-97, 456 S.E.2d 531, 533 (1995); see also Cox v. Commonwealth, 227 Va. 324, 329 n.4, 315
S.E.2d 228, 231 n.4 (1984). Further, appellant failed to submit an affidavit of materiality as
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required by the rule. Thus, assuming without deciding that Rule 3A:12 applies to misdemeanor
charges in circuit court, appellant was not entitled to the discovery she sought under Rule 3A:12.
The evidence also supports the conclusion that the information appellant sought prior to
trial was not Brady material1 and that no Brady violation occurred.
Due process requires that the Commonwealth disclose all material exculpatory evidence
to an accused. Jefferson v. Commonwealth, 27 Va. App. 477, 486, 500 S.E.2d 219, 224 (1998)
(citing Brady, 373 U.S. at 87, 83 S. Ct. at 1197; Stover v. Commonwealth, 211 Va. 789, 795, 180
S.E.2d 504, 509 (1971)). The withholding of information from a defendant constitutes a Brady
violation when the information is “(1) either directly exculpatory or [has] impeachment value,
(2) suppressed by the government, and (3) material.” Lockhart v. Commonwealth, 34 Va. App.
329, 345, 542 S.E.2d 1, 8 (2001) (citing Strickler v. Greene, 527 U.S. 263, 280-81, 119 S. Ct.
1936, 1947-48, 144 L. Ed. 2d 286 (1999)).
Prior to trial, appellant obtained possession of a copy of Tirado’s job description,
Property Maintenance Inspector II, and received a statement from the city clearly setting out the
basis for its position that Tirado had the authority to enforce the environmental code. For the
first time on appeal, appellant contends the city should have provided to her “the class
description for an environmental code enforcement official,” which she describes as
“information [she] believe[s would] have contradicted [the] testimony of [City Building
Commissioner Claude Cooper]” and would have “clearly shown that Mr. Tirado lacked the
authority to issue the criminal summons against [appellant].” Appellant also contends that the
“lack of documentary evidence of the authority vested in Mr. Tirado is exactly the type of Brady
1
Appellant also contends that Rule 3.8(d) of Virginia’s Rules of Professional Conduct
required the Commonwealth to produce the requested documents. Although a violation of the
Rules of Professional Conduct may subject an attorney to sanctions, such a violation does not
provide any remedy to a litigant who may have been affected by that violation.
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material that the City of Richmond should have been required to provide to [her] prior to the trial
of this matter.” We disagree for three reasons.
First, appellant made no claim at trial that such evidence would have been exculpatory
and material and has not established such a claim on appeal. Prior to trial, the city informed
appellant of its position that the Property Maintenance Inspector II job description, of which
appellant already had obtained a copy, was broad enough to authorize Tirado’s issuance of the
criminal summons. When City Building Commissioner Claude Cooper testified on direct
examination at trial, he testified in keeping with those representations. When appellant elicited
testimony from Cooper on cross-examination that Cooper’s office still employed environmental
code enforcers, appellant did not assert an entitlement to the job description for that position and
did not claim that it would include exculpatory information she should have received earlier. On
appeal, she merely represents that “[she] believe[s]” the class description for the environmental
code enforcement official would have contradicted Cooper’s testimony that both those officials
and Property Maintenance Inspectors II were authorized to enforce the environmental code.
Mere “speculation” that the job description for an environmental code enforcement official
“might contain ‘potentially exculpatory evidence’” is insufficient to establish a Brady violation.
Ramdass v. Commonwealth, 246 Va. 413, 420, 437 S.E.2d 566, 570 (1993).
Second, Brady is not violated “‘if the evidence in question is available to the defendant
from . . . sources [other than the government],’” United States v. Wilson, 901 F.2d 378, 380 (4th
Cir. 1990) (quoting United States v. Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)), and would
have been “readily available to a diligent defense attorney” through those other sources, Lugo v.
Munoz, 682 F.2d 7, 9 (1st Cir. 1982). “‘The purpose of the Brady rule is . . . to assure that [the
defendant] will not be denied access to exculpatory evidence known to the government but
unknown to him.’” Lugo, 682 F.2d at 10 (quoting United States v. Ruggiero, 472 F.2d 599, 604
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(2d Cir. 1973)). Here, appellant presumably could have obtained the job description for the
environmental code inspector position in the same fashion that it obtained the description for
Property Maintenance Inspector II, which the city had represented was available online. Thus,
appellant failed to establish that the evidence was not available from another source.
Third, even assuming the job description was exculpatory and material and was not
available from another source, we hold it was not evidence that the city should have known was
exculpatory. The mere fact that the city employed two different types of officials who were
authorized to enforce the environmental codes was not inherently exculpatory. Further, nothing
in the record indicates the city should have been aware, prior to trial, that appellant believed the
absence of the word “environmental” in the very broadly-worded job description of a Property
Maintenance Inspector II would lead it to argue that the presence of that word in the job title of
the environmental codes enforcer position meant only that official was authorized to enforce the
environmental code. Even when appellant articulated that position at trial, she made no
argument that the environmental code enforcer’s job description was exculpatory evidence that
the city had had a duty to disclose. Thus, no evidence indicated the city should have known the
job description might have been viewed as exculpatory or that the city’s failure to produce the
job description prior to or during trial amounted to a Brady violation.
Accordingly, we hold the trial court did not err in granting the motion to quash
appellant’s request for a subpoena duces tecum.
B.
LEGITIMACY OF CRIMINAL SUMMONS SIGNED BY
PROPERTY MAINTENANCE INSPECTOR II
Appellant was charged with a violation of Richmond Code § 19-52. Richmond Code
§ 19-55.1 provides in relevant part as follows:
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(c) Any law enforcement officer, fire marshal or any of his
assistants, fire inspectors, or sworn special police officer, is
authorized and shall have authority to enforce all provisions of this
article[, which includes Code § 19-52].
(d) Whenever it shall come to the knowledge of the City manager,
or his designee, that there exists upon land or premises in the City
any condition constituting a violation of Section 19-51, 19-52 or
19-54, such person shall serve, post, mail or deliver a notice to any
of the following to cause the condition to be abated from such land
or premise within forty-eight (48) hours of delivery or posting of
such notice or in the time limit set forth in the notice:
* * * * * * *
(4) The owner of the land or premises.
Proof of such service, delivery, mailing or posting shall be
sufficient evidence of such notice.
Appellant contends Tirado, as a Property Maintenance Inspector II, lacked the authority to have
the criminal summons issued against her. Again, we disagree.
The job description for Property Maintenance Inspector II provides that “[t]his class
inspects existing . . . properties in the City . . . to ensure compliance with . . . applicable
ordinances.” The job description further provides that one of the essential tasks of the position is
“prepar[ing] and issu[ing] inspection reports and documents, notices of violation and records of
all complaints for caseload tracking.” In addition, the description indicates that the job position
“[p]repares, issues and serves court summons . . . to present cases before judicial hearings.”
City Building Commissioner Cooper testified that his duties include administration of the
Uniform Statewide Building Code and the environmental or nuisance codes. He defined the
word “environmental” as meaning “junk, trash, debris, high weeds, junk cars, nuisance type
violations . . . as well as [other] environmental type violations.” Cooper supervised Tirado in his
capacity as a Property Maintenance Inspector II. Cooper testified that the duties of such an
inspector, as broadly outlined in the job description, encompassed enforcement of the
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Environmental Section 19 of the Code of the City of Richmond, including Section 19-52, under
which appellant was charged. Cooper explained that Tirado, employed as a Property
Maintenance Inspector II under a job description approved by the City manager and city council,
was a designee of the City Manager with the authority to enforce environmental regulations
pursuant to Richmond City Code § 19-55.1. He also testified that a Property Maintenance
Inspector II is a law enforcement officer for purposes of Richmond Code § 19-55.1. This
evidence supports a finding that Tirado was authorized to enforce the environmental code.
Based on Cooper’s testimony and the express language of Richmond Code § 19-55.1, we
hold the trial court did not err in concluding that Tirado had the authority to issue the notice of
violation and act as the complainant on the summons.
C.
CONSTITUTIONALITY OF STATUTE
Appellant contends the statute is unconstitutionally vague. Again, we disagree.
A penal statute is void for vagueness if it both fails to give a person of ordinary
intelligence notice that her contemplated conduct is forbidden by the statute and encourages
selective prosecution. Woodfin v. Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379 (1988).
“These are ‘complementary and interrelated parts of the test of vagueness vel non as applied to
the conduct of the person before the court.’” Id. (quoting Stanley v. City of Norfolk, 218 Va.
504, 509, 237 S.E.2d 799, 802 (1977)).
Vagueness doctrine
is based on the principle that no person shall be held criminally
responsible for conduct which he could not reasonably understand
to be proscribed. The root of the vagueness doctrine is a rough
idea of fairness. It is not a principle designed to convert into a
constitutional dilemma the practical difficulties in drawing
criminal statutes both general enough to take into account a variety
of human conduct and sufficiently specific to provide fair warning
that certain kinds of conduct are prohibited.
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Flannery v. City of Norfolk, 216 Va. 362, 366, 218 S.E.2d 730, 733 (1975) (citations and
internal quotation marks omitted). “In determining whether a legislative enactment is
unconstitutionally vague, the Supreme Court has considered whether the words used have a
well-settled . . . meaning . . . .” Id.; see also, e.g., Pedersen v. City of Richmond, 219 Va. 1061,
1065, 254 S.E.2d 95, 98 (1979) (citing dictionary to determine “generally understood” meaning
for adjective in ordinance).
Richmond City Code § 19-52 provides, in part: “It shall be unlawful for any person who
owns or occupies property within the City to permit the accumulation of trash, garbage, refuse,
litter, junk, demolition materials or other offensive, unwholesome, unsightly, unsanitary or
unhealthy substances on such property . . . .” The word “demolition” is generally defined as
“destruction of structures.” Webster’s Third New International Dictionary 600 (1981).
The summons states that appellant violated the ordinance by “allow[ing] the existence of
a refuse (demolition material) . . . after issuance of an official notice of violation . . . .”
Moreover, the evidence proved that the yard of appellant’s property contained several large,
conical shaped piles of unstacked bricks that appeared to have been dumped in heaps on the
property. Some of the bricks had mortar on them and were still attached to other bricks with
mortar. The evidence was sufficient for the trier of fact to conclude that the bricks came from a
previously-existing structure and, thus, were demolition materials rather than new, unused
bricks. In addition, the piles contained dirt and growing weeds.
As applied to appellant, Richmond City Code § 19-52 survives the constitutional
challenge. A person of reasonable intelligence would know that these heaps of previously-used
bricks were demolition materials, the accumulation of which the ordinance prohibited.
Appellant’s use of a portion of the bricks over a period of two years and her intent to use the
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remaining bricks in future projects does not change the fact that the bricks on the property when
the summons was issued were demolition materials obtained from the destruction of a structure.
Appellant also contends that the ordinance is unconstitutionally vague because it
authorizes and encourages discriminatory enforcement. However, the terms used in the
ordinance describe particularized items, the accumulation of which, when measured by common
practice and understanding, is deemed to violate the ordinance. Therefore, the ordinance has
sufficient definiteness to avoid arbitrary and discriminatory enforcement and is not
unconstitutionally vague.
D.
SUFFICIENCY OF EVIDENCE TO PROVE VIOLATION
When an appellant contends the evidence was insufficient to support the conviction, “‘we
review the evidence in the light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1,
11, 492 S.E.2d 826, 831 (1997) (citation omitted). So viewed, the evidence proved that, after the
issuance of the notice of violation, appellant’s property continued to contain several large piles
of bricks, bricks attached together with mortar, dirt, and weeds. The bricks were not new, had
apparently come from the destruction of another structure, and, at the time of trial, had been on
the property for a period of almost two years. Appellant testified that she had already used a
portion of the bricks and intended to use the remaining bricks for patios, walks, walls, or other
projects.
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From the evidence presented, the trial judge could conclude beyond a reasonable doubt
that the bricks were demolition materials and that appellant’s accumulation of the demolition
materials on her property violated Richmond City Code § 19-52.2
II.
For these reasons, we affirm the trial court’s rulings (1) quashing appellant’s request for
discovery from the city employee who issued the criminal summons against her; (2) concluding
the employee who issued the summons had the authority to do so; (3) holding the ordinance
under which she was charged was not unconstitutionally vague; and (4) finding the evidence was
sufficient to support her conviction. Thus, we affirm appellant’s conviction.
Affirmed.
2
For the first time on appeal, appellant asserts as a defense Richmond Code § 19-53,
which states, inter alia, that “[t]he provisions of Sections 19-51 and 19-52 shall not apply to . . .
[l]egally authorized junk dealers or persons legally authorized to repair, rebuild, recondition or
salvage . . . .” Appellant did not assert this defense in the trial court and, thus, presented no
evidence or argument as to whether she was a person “legally authorized” under the exception.
Accordingly, we do not consider this issue on appeal. See Rule 5A:18.
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