COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia
DAVID WESLEY SPENCER
*
MEMORANDUM OPINION BY
v. Record No. 2207-01-2 JUDGE G. STEVEN AGEE
OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
David Wesley Spencer (Spencer) was convicted by a jury in
the Chesterfield County Circuit Court of aggravated sexual
battery, in violation of Code § 18.2-67.3, and object sexual
penetration, in violation of Code § 18.2-67.2. On appeal,
Spencer raises eight issues which can be consolidated into four
areas: (1) Whether Spencer was erroneously denied access to the
CPS file; (2) whether the Commonwealth failed to provide Spencer
with exculpatory evidence prior to his trial; (3) whether the
trial court erred in limiting the testimony of Dr. Coleman; and
(4) whether the trial court erred in failing to strike four
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
jurors for cause. Upon review of these issues, we affirm the
decisions of the trial court and affirm Spencer's convictions. 1
I. ACCESS TO THE CPS FILE
Spencer contends the trial court and this Court have erred
by refusing him access to the sealed CPS file. We find no error
in the trial court's decisions or ours.
First, Spencer contends the denial of pretrial access to the
CPS file, which contained an audiotape and transcript of the CPS
interview with the victim, prevented him from effectively
preparing for his trial and, thus, he had a right to review the
material in the file. We disagree.
"[T]here is no general constitutional
right to discovery in a criminal case."
Spencer v. Commonwealth, 238 Va. 295, 303,
384 S.E.2d 785, 791 (1989), cert. denied, 493
U.S. 1093 (1990) (citations omitted). Rule
3A:11 provides for limited pretrial discovery
by a defendant in a felony case. Hackman v.
Commonwealth, 220 Va. 710, 713-14, 261 S.E.2d
555, 558 (1980).
Ramirez v. Commonwealth, 20 Va. App. 292, 294-95, 456 S.E.2d 531,
532 (1995). Rule 3A:11 does not provide for the discovery of
material compiled by an agency involved in the investigation of a
criminal allegation and "statements made to [the agency's]
employees and their reports, memoranda, and internal documents
1
As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
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[are] not discoverable." Id. at 296, 456 S.E.2d at 533
(citing Rule 3A:11(b)(2)).
As we held in Ramirez, CPS is an agent of the Commonwealth
when it investigates abuse complaints. Pursuant to Code
§ 63.1-248.6(E)(5), CPS was required to investigate the victim's
complaint, and upon suspicion of sexual abuse, it was required to
report to the Commonwealth's Attorney for Chesterfield County and
provide information to him. Under the circumstances of this
case, CPS was involved in the investigation of the sexual abuse
allegation and was, therefore, an agent of the Commonwealth for
purposes of Rule 3A:11(b)(2). See id. Therefore, pursuant to
Rule 3A:11(b)(2), the statements made to CPS and its reports,
interview documentation and internal documents were not
discoverable. Accordingly, the trial court did not err in
refusing to permit Spencer access to the CPS file.
Next, Spencer argues the trial court erred in denying his
motion to expand the protective order to permit his counsel to
disclose the contents of the CPS file to others associated with
the preparation of his defense. He contends the trial court's
refusal prevented him from proffering evidence necessary to
demonstrate the Commonwealth's alleged failure to provide him
with all exculpatory evidence. We find the trial court did not
err.
The trial court vacated the initial protective order and
required counsel to surrender all copies of materials he obtained
under the terms of the protective order. The trial court found
that it had "improvidently entered" the initial protective order
allowing post-trial access to the CPS file because the pretrial
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ruling was that the file would be kept under seal and the court
would review its contents in camera for exculpatory evidence. In
other words, the trial court erroneously entered the initial
protective order which permitted defense counsel access to the
CPS file to which he was never entitled. Because the trial court
indicated it "improvidently entered" the original protective
order it did not err in denying Spencer's motion to expand the
protective order, which it vacated.
Lastly, Spencer argues this Court erred in refusing to
permit his appellate counsel access to the sealed materials in
the record. He contends our denial of his motion to permit the
requested access has prevented him from effectively presenting
the issues to this Court. We disagree. We informed Spencer that
we would review the sealed materials in camera to determine
whether the trial court erred in assessing whether the CPS file
contained exculpatory evidence as he contends. As the following
analysis reflects, we have reviewed the material and find no need
to reconsider Spencer's appellate motion requesting access.
II. FAILURE TO PROVIDE EXCULPATORY EVIDENCE
Spencer next contends the Commonwealth violated his "rights
to cross-examination, compulsory process, effective assistance of
counsel, and due process by failing to disclose exculpatory
evidence." He further contends the trial court erred in refusing
to grant him a new trial because the foregoing rights were
violated. While our review of the record reveals some arguably
exculpatory evidence was not provided to Spencer, we find the
trial court did not err in refusing to grant Spencer a new trial.
A. Due Process
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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 v. Maryland, 373 U.S. 83, 87 (1963)). Exculpatory
evidence is evidence that is favorable to the accused and
includes impeachment evidence. United States v. Bagley, 473 U.S.
667, 676 (1985); Robinson v. Commonwealth, 231 Va. 142, 150, 341
S.E.2d 159, 164 (1986). The withholding of information from a
defendant constitutes a due process violation, "irrespective of
the good faith or bad faith of the prosecution," Brady, 373 U.S.
at 87, 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 (1999)).
Our review of the record reveals the Commonwealth failed to
disclose to Spencer that the victim, in his interview with CPS,
(1) informed CPS that he saw Spencer's genitalia one time and
that was when the victim saw Spencer in the shower; (2) initially
answered in the negative when asked whether Spencer touched him
"anywhere besides your pee pee"; and (3) initially answered in
the negative when asked, in general, whether Spencer had ever
2
touched his backside. Assuming, but not deciding, the foregoing
2
These statements are contained in the interview transcript
on pages 16 and 21. We found no exculpatory evidence on the
"missing pages" of the transcript (pages 8-13). In his
post-trial motion for a new trial, Spencer contended he should
have been informed by the Commonwealth of allegedly leading
questions used by CPS when it interviewed the victim as
evidenced in the interview transcript. We disagree. Spencer
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to be exculpatory evidence that should have been disclosed, we do
not find it to be material.
"'[I]mplicit in the requirement of materiality is a concern
that the suppressed evidence might have affected the outcome of
the trial.'" Bagley, 473 U.S. 667, 674-75 (1985) (quoting United
States v. Agurs, 427 U.S. 97, 104 (1976)).
[E]vidence is material 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. A
"reasonable probability" is a probability
sufficient to undermine confidence in the
outcome.
Id. at 682.
The reviewing court should assess the
possibility that such effect might have
occurred in light of the totality of the
circumstances and with an awareness of the
difficulty of reconstructing in a post-trial
proceeding the course that the defense and
the trial would have taken had the defense
could have gotten this information elsewhere by interviewing or
examining the CPS agent, Ms. Evans or Detective Pritchard. See
Epperly v. Booker, 997 F.2d 1 (4th Cir. 1993). For reasons
known only to Spencer, he failed to pursue these options.
Spencer also contends he should have been informed of the
victim's inability to recall events. However, our review of the
record reveals no such inability related to the charges against
Spencer. While the victim was unable to recall exact dates, he
could describe the time of year and his age; and while he could
not recall exactly what Spencer did immediately upon touching
him, he could describe where on his anatomy Spencer initiated
contact and how it felt emotionally and physically. These
statements, and the inability of the victim, a child, to
remember minute details, are not exculpatory and, therefore, the
Commonwealth was not required to reveal them to Spencer.
Finally, Spencer contends he should have been informed of the
unduly suggestive questions posed to the victim. Assuming, but
not deciding, that such information is discoverable, we find
this complaint to be unmeritorious as the audiotape does not
reflect any undue influence or impermissible leading questions.
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not been misled by the prosecutor's
incomplete response.
Id. at 683. However, "[t]he mere possibility that an item of
undisclosed information might have helped the defense . . . does
not establish 'materiality' in the constitutional sense." Agurs,
427 U.S. at 109-10.
Our review of the entire record does not convince us that if
the additional evidence had been revealed there is a reasonable
probability the jury's verdict would have been different. The
fact that the victim stated he saw Spencer's genitalia once when
he saw him in the shower does not exclude other possible
instances. In addition, the victim testified that anal
penetration occurred while he was lying down with Spencer behind
him.
The fact that the victim initially denied Spencer ever
touched him "anywhere besides [his] pee pee" is not material
because the victim admitted at trial that he had previously
denied that anal penetration occurred. The jury was, therefore,
aware that the victim had been inconsistent in his past
recollections of the events. The jury also heard from two other
witnesses who presented evidence that Spencer sexually assaulted
the victim. The victim's sister testified that she had
witnessed, more than once, Spencer touch the victim "underneath
his pants." Dr. Foster testified that she personally examined
the victim and performed a colonoscopy and its findings were
"consistent with rectal trauma or penetration of the rectum."
Because the possible exculpatory evidence was not material,
there was no due process violation that warranted a new trial
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and, therefore, the trial court did not err in denying Spencer's
request for a new trial.
B. Other Alleged Rights Violations
Spencer also alleges that the trial court's denial of his
request to view the CPS file and the Commonwealth's failure to
disclose all of the victim's statements which were possibly
exculpatory to the defense, violated his rights under the Sixth
Amendment's Confrontation Clause and the guarantee of compulsory
process. 3 For the following reasons, we disagree.
1. The Right to Confront Witnesses
Spencer argues, implicitly, that the failure to disclose
information contained in the CPS file that might have made
cross-examination more effective undermines the Confrontation
Clause's purpose of increasing the accuracy of the truth-finding
process at trial. This argument, however, fails to recognize the
fact that the Confrontation Clause is not a constitutionally
compelled rule for pretrial discovery. The right to question
adverse witnesses, which the right to confrontation guarantees,
see Barber v. Page, 390 U.S. 719, 725 (1968), "'does not include
the power to require the pretrial disclosure of any and all
information that might be useful in contradicting unfavorable
testimony.'" Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d
114, 124 (1996) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 53
(1987) (plurality)). The rights guaranteed by the Confrontation
3
Spencer also argues that the circumstances of this case
impeded his right to the effective assistance of counsel. This
claim, however, is not reviewable on direct appeal. Goins v.
Commonwealth, 251 Va. 442, 455 n.2, 470 S.E.2d 114, 124 n.2
(1996).
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Clause are "'satisfied if defense counsel receives wide latitude
at trial to question witnesses.'" Id.
Spencer does not allege, nor does the record reflect, that
the trial court limited defense counsel's cross-examination of
the Commonwealth's witnesses. Thus, Spencer's right to confront
the witnesses against him was not denied by the trial court's
discovery ruling or the Commonwealth's failure to provide him
with the possible exculpatory evidence that we have concluded was
not material. See id.
2. The Right to Compel Witnesses
Spencer also alleges that his rights under the Sixth
Amendment's compulsory process clause have been violated under
the circumstances of this case. Again, we disagree.
The compulsory process clause provides a defendant with
government assistance in compelling the presence of favorable
witnesses at trial. Ritchie, 480 U.S. at 56. This right has
never been interpreted to include the right to discover the
identity of witnesses or to require the Commonwealth to produce
witnesses who might give exculpatory testimony. Further, we have
already held that no due process violation occurred in this case,
and the right of compulsory process "provides no greater
protections in this area than those afforded by due process."
Id.
The denial of Spencer's request to view the CPS file and the
Commonwealth's failure to inform Spencer of the immaterial
exculpatory evidence in the file were unrelated to Spencer's
right to obtain government assistance in compelling the
attendance of witnesses. See id.; Goins, 251 Va. at 456-57, 470
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S.E.2d at 124. The record reflects no impediment to Spencer
calling any witness of his choosing. Thus, Spencer's right of
compulsory process was not violated.
III. LIMITATIONS UPON DR. COLEMAN'S TESTIMONY
Spencer also contends the trial court erred in limiting the
expert witness testimony of Dr. Coleman. We disagree.
"Expert testimony is appropriate to
assist triers of fact in those areas where a
person of normal intelligence and experience
cannot make a competent decision." Swiney v.
Overby, 237 Va. 231, 233, 377 S.E.2d 372, 374
(1989). The expert testimony must be
relevant, and the trial judge must determine
whether the subject matter of the testimony
is beyond a lay person's common knowledge and
whether it will assist the trier of fact in
understanding the evidence or in determining
a fact in issue. See Farley v. Commonwealth,
20 Va. App. 495, 498-99, 458 S.E.2d 310, 312
(1995). "The admission of expert testimony
is committed to the sound discretion of the
trial judge, and we will reverse a trial
court's decision only where that court has
abused its discretion." Brown v. Corbin, 244
Va. 528, 531, 423 S.E.2d 176, 178 (1992).
Utz v. Commonwealth, 28 Va. App. 411, 423-24, 505 S.E.2d 380, 386
(1998).
The trial court found Spencer's proffered reason for
Dr. Coleman's testimony, to explain the "suggestibility" of
children, to be unnecessary in this case. We do not find this
was an abuse of discretion. Dr. Coleman had not met the victim,
Detective Pritchard or Jolene Evans. He had no knowledge of the
interview techniques used in the interview with the victim and
made no inquiry in that regard. Accordingly, the trial court did
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not abuse its discretion in limiting Dr. Coleman's testimony to
the medical records that he had reviewed. 4
IV. THE JURORS
Lastly, Spencer contends the trial court erred in denying
his motions to strike jurors Andrews, Clark, Trevey and Allmon
for cause. We disagree.
An accused is constitutionally guaranteed the right to a
trial by "an impartial jury." U.S. Const. amends. VI, XIV; Va.
Const. art. I, § 8; see Code § 8.01-358; Rule 3A:14. "Trial
courts, as the guardians of this fundamental right, have the duty
to procure an impartial jury." Griffin v. Commonwealth, 19 Va.
App. 619, 621, 454 S.E.2d 363, 364 (1995). Accordingly, "the
trial judge must probe the conscience and mental attitude of the
prospective jurors to ensure impartiality." Id. A juror holding
"a preconceived view that is inconsistent with an ability to give
an accused a fair and impartial trial, or who persists in a
misapprehension of law that will render him incapable of abiding
the court's instructions and applying the law, must be excluded
for cause." Sizemore v. Commonwealth, 11 Va. App. 208, 211, 397
S.E.2d 408, 410 (1990).
"[I]n determining whether a prospective juror should have
been excluded for cause, we review the entire voir dire, rather
than a single question and answer." Barnabei v. Commonwealth,
252 Va. 161, 173, 477 S.E.2d 270, 277 (1996). Whether a juror is
4
Spencer recites a claim that the CPS worker "interjected
suggestions of dreams" to support his argument on the need of
expert testimony regarding the suggestibility of children.
However, the single transcript reference to "in this dream"
appears to be a transcriptional error as the audiotape reflects
the phrase to be "in this room."
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impartial is a question of historical fact. See Wainwright v.
Witt, 469 U.S. 412, 428 (1985). On appeal, a trial court's
decision to seat a juror is entitled to great deference, and the
decision will not be overturned unless the error is manifest.
See McGill v. Commonwealth, 10 Va. App. 237, 241, 391 S.E.2d 597,
600 (1990).
A review of the entire voir dire fails to show that the
trial court abused its discretion by refusing to strike the four
jurors for cause.
A. Andrews
While Spencer contends the trial court abused its discretion
in not striking Andrews for cause after the juror revealed that
she had learned of the case through media reports, the fact that
she had heard of the case was not sufficient reason to require
her to be stricken for cause.
"Even though a prospective juror may hold preconceived
views, opinions, or misconceptions, the test of impartiality is
whether the venireperson can lay aside the preconceived views and
render a verdict based solely on the law and evidence presented
at trial." Griffin, 19 Va. App. at 621, 454 S.E.2d at 364. The
rationale behind this rule of law has been stated by the Supreme
Court of the United States:
In these days of swift, widespread and
diverse methods of communication, an
important case can be expected to arouse the
interest of the public in the vicinity, and
scarcely any of those best qualified to serve
as jurors will not have formed some
impression or opinion as to the merits of the
case. This is particularly true in criminal
cases. To hold that the mere existence of
any preconceived notion as to the guilt or
innocence of an accused, without more, is
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sufficient to rebut the presumption of a
prospective juror's impartiality would be to
establish an impossible standard. It is
sufficient if the juror can lay aside his
impression or opinion and render a verdict
based on the evidence presented in court.
Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). Therefore, "[t]he
constitutional guarantee of an impartial jury does not
contemplate excluding those who have read or heard news accounts
concerning the case or even exclusion of those who may have
formed an opinion based on such accounts." Wilmoth v.
Commonwealth, 10 Va. App. 169, 173, 390 S.E.2d 514, 516 (1990).
The prospective juror, Andrews, acknowledged awareness of
accounts of the crime in the media but her awareness was
coextensive with the brief summary of allegations provided by the
trial court at the commencement of voir dire. This juror
informed the court that the information would not cause her to
prejudge the case and would not prevent her from giving fair and
impartial consideration to the evidence presented by both
parties. She also indicated it would not cause her difficulty in
applying the presumption of innocence and would not affect her
ability to sit impartially in the case.
Upon review of the voir dire as a whole, we find that the
trial judge did not err by refusing to strike Andrews for cause.
B. Clark and Trevey
We also find no merit to Spencer's contention that jurors
Clark and Trevey should have been stricken for cause because they
both had an emotional reaction to the charges which they
initially indicated made them unsure whether they could be
impartial. Our review of the entire voir dire, not just isolated
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statements, reveals the trial court did not abuse its discretion
in refusing to strike these two jurors for cause.
Our review found no evidence creating a reasonable doubt as
to these two jurors' qualifications to serve fairly and
impartially. Neither juror indicated to the trial court that he
or she held a preconceived view that was inconsistent with an
ability to give Spencer a fair and impartial trial, or that he or
she was incapable of following the court's instructions.
While Clark indicated that she had experienced "a visceral
reaction" upon learning of the charges against Spencer, which she
felt might cause her difficulty, she indicated that she believed
Spencer was innocent until proven guilty. She stated she would
listen to each witness impartially and weigh the evidence without
presuming that the victim was telling the truth. She also
indicated that she could follow the law and she understood that
the Commonwealth had to prove its case beyond a reasonable doubt.
Although Trevey stated that he felt a "sense of rage" when
he heard the charges against Spencer and that he was "not sure"
he could be impartial, he also stated that he understood Spencer
was innocent until proven guilty and that the Commonwealth had to
prove guilt beyond a reasonable doubt. He further indicated he
could follow the trial court's instructions, weigh all of the
evidence and follow the law. Accordingly, the trial court did
not err by refusing to strike Clark and Trevey for cause.
C. Allmon
As a last contention related to jury selection, Spencer
argues that the trial court erred in not striking Allmon for
cause due to her bias in favor of police officers. We disagree.
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Although Allmon stated she would be inclined to attach
credibility to the testimony of a police officer, she stated she
would not "automatically" believe the testimony of a police
officer. She stated she could render a fair and impartial
decision in the case. She also stated she believes a person is
innocent until proven guilty and she would listen to all of the
facts in the case before making a decision.
Viewing the voir dire of this prospective juror as a whole,
it is clear that she was committed to hearing the evidence and
observing the witnesses before making determinations of
credibility. The juror dispelled any notion that the status of
being a police officer would per se render an officer's testimony
more believable than contrary testimony by one who was not a
police officer. On this record, the trial court did not abuse
its discretion by refusing to strike Allmon.
V. CONCLUSION
Finding no error that requires the reversal of Spencer's
convictions, we affirm the decisions of the trial court.
Affirmed.
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