COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judge Duff and
Judge Clements *
Argued at Alexandria, Virginia
PHILLIP J. MOORE
MEMORANDUM OPINION ** BY
v. Record No. 0264-99-4 JUDGE JEAN HARRISON CLEMENTS
JULY 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
James M. Lowe (Katherine D. Carlo, on brief),
for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Phillip Moore, appellant, contends the trial court erred
in quashing a subpoena duces tecum for the release of evidence
in the possession of the police. Appellant also contends the
trial court erroneously permitted the Commonwealth to comment on
his failure to submit to a blood test and erroneously admitted
into evidence an arrest report. Finding no error, we affirm the
trial court.
*
Judge Jean Harrison Clements took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
**
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
BACKGROUND
On October 30, 1997, at 1:40 a.m., Officer Fred Galati
observed appellant's car travelling twenty to twenty-five miles
over the posted speed limit and "swerve[] from the left-hand
lane into the right-hand lane severely." Galati engaged his
emergency lights in an attempt to stop appellant's car.
Appellant initially slowed down to 55 miles per hour, the speed
limit, but did not pull over and stop, so Galati engaged his
siren. Appellant continued for one-half mile, then pulled over.
Galati approached the driver's side door and asked for
appellant's license and registration. Appellant said, "Sorry,
Officer," placed his car in gear and drove off, running over
Galati's foot and causing Galati to injure his knee.
Galati pursued appellant at speeds in excess of 105 miles
per hour. Appellant eventually lost control of his vehicle,
struck a tree, exited his vehicle and fled on foot. Galati
chased and cornered appellant, who "[r]aised his hands" as if
"he was going to fight." Galati "pushed [appellant] hard
against [a] fence, backed up, took out [his] mace, and then
sprayed him" with it. Galati then handcuffed appellant, who
yelled and cursed at Galati. Although appellant had no serious
injuries, Galati "called a medic unit to give [appellant] a wash
down in the face."
After a jury trial on January 28 and 29, 1999, appellant
was convicted of driving under the influence of alcohol as a
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second offense within five years. Appellant was sentenced to
serve twelve months in jail, ordered to pay a $2,500 fine and
had his Virginia operator's license suspended for three years.
This appeal is from that judgment.
SUBPOENA DUCES TECUM
In a December 1998 request for a subpoena duces tecum
directed to Edward Flynn, Arlington County Chief of Police,
appellant sought the following:
1. Tapes of radio traffic concerning the
arrest of the above named defendant on or
about October 30, 1997, at approximately
0140 hours, by Officer Galati. The produced
recording should cover five minutes before
the stop through arrival at the Adult
Detention Center[; and]
2. All arrest photographs of the
defendant-originals are requested.
In the accompanying affidavit, defense counsel averred
"that the documents described in the accompanying Request for
Production are material to the above styled proceedings." The
Commonwealth moved to quash the subpoena, and the trial court
heard argument on the motion on December 17, 1998, and quashed
the subpoena. Appellant failed to provide a transcript of that
hearing or the trial court's order.
At the conclusion of the Commonwealth's evidence at
appellant's January 28, 1999 jury trial, appellant moved to
strike for various reasons, one of which being he was "deprived
of compulsory process by the Commonwealth in this case, in that
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we had sought subpoenas duces tecum for certain evidence, which
was denied to us, which would have not only been – have every
right to have that evidence, but we have a right to evaluate it
on our own." The subpoenas sought "tapes of the chase and the
photographs of the Defendant taken at the police station on the
night of his arrest," which appellant claimed "would have shown
significant injury to the Defendant." Defense counsel told the
trial judge that another judge "quashed [the] subpoena" in a
prior hearing.
Acknowledging the Commonwealth's duty "to turn over any
exculpatory evidence," the prosecutor, who was unfamiliar with
the original subpoena, the motion to quash and the order
quashing it, had "no reason to think" the requested items were
exculpatory. Finding that the Commonwealth is "a party to the
action under Ramirez [v. Commonwealth, 20 Va. App. 292, 456
S.E.2d 531 (1995)]," the trial judge denied the motion.
On August 17, 1999, a judge of this Court denied the issue
in appellant's petition for appeal asserting that the
photographs and tapes were "potentially exculpatory evidence" to
which he was entitled. The bases for the denial were
appellant's speculative allegations and failure to prove that
the evidence would have been favorable and was, therefore,
exculpatory. On November 23, 1999, a three-judge panel of this
Court granted two of the four issues raised by appellant;
however, "for the reasons set forth in the order of this Court
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dated August 17, 1999," the panel refused to address appellant's
contention that he was denied potentially exculpatory evidence.
We are bound by the panel's determination that appellant failed
to prove the evidence was exculpatory.
"There is no general constitutional right to discovery in a
criminal case." Swisher v. Commonwealth, 256 Va. 471, 481, 506
S.E.2d 763, 768 (1998), cert. denied, 120 S. Ct. 46 (1999).
Rather, discovery is governed by Virginia law, which under Rule
3A:11 is limited and applies only to felony charges in the
circuit court. See Rule 3A:11(b). Because appellant was
charged with a misdemeanor, Rule 3A:11(b) did not apply.
Rule 3A:12(b) provides for "Production of Documentary
Evidence and of Objects Before a Circuit Court." It provides,
in pertinent part:
Upon notice to the adverse party and on
affidavit by the party applying for the
subpoena that the requested writings or
objects are material to the proceedings and
are in the possession of a person not a
party to the action, the judge or the clerk
may issue a subpoena duces tecum for the
production of writings or objects described
in the subpoena.
Rule 3A:12(b) (emphasis added).
"The trial court's refusal to issue a subpoena duces tecum
. . . is not reversible error absent a showing of prejudice."
Gibbs v. Commonwealth, 16 Va. App. 697, 699, 432 S.E.2d 514, 515
(1993) (citing Conway v. Commonwealth, 12 Va. App. 711, 716, 407
S.E.2d 310, 312-13 (1991) (en banc)).
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In Ramirez, the defendant contended "the trial court erred
in denying his request for a subpoena duces tecum directed to
the Fairfax Department of Social Services." Ramirez, 20 Va.
App. at 293, 456 S.E.2d at 532. Pursuant to Rule 3A:12(b),
Ramirez requested a subpoena "commanding [DSS] to deliver all
documents, records, reports, statements, investigative reports,
photographs, or other writings or items relating to the
allegations of defendant's [sexual] misconduct toward [the
victim]." Id. at 294, 456 S.E.2d at 532.
We affirmed the trial court's denial of the requested
subpoena, finding that reports and internal documents made by
agents of the Commonwealth in connection with the investigation
or prosecution of the case were not discoverable under Rule
3A:11(b)(2). See id. at 296, 456 S.E.2d at 533. Moreover,
because "the documents of DSS [we]re not in the possession 'of a
person not a party to the action,'" we found Rule 3A:12
inapplicable. Id. (quoting Rule 3A:12(b)).
In Cox v. Commonwealth, 227 Va. 324, 329 n.4, 315 S.E.2d
228, 231 n.4 (1984), the defendant "assigned error to the trial
court's refusal to issue a subpoena duces tecum requiring the
production of certain records of the City Treasurer." Because
the bulk of those records had been seized by the police and were
in the Commonwealth's custody, the Supreme Court held "they were
not subject to a subpoena duces tecum, because they were not in
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the possession 'of a person not a party' to the proceeding."
Id.
We find this issue is determined by the language and
reasoning in Ramirez and Cox limiting the issuance of subpoenas
duces tecum to nonparties. The requested items were in the
possession of the police, who are agents of the Commonwealth.
See Cox, 227 Va. at 329 n.4, 315 S.E.2d at 231 n.4; Ramirez, 20
Va. App. at 296, 456 S.E.2d at 533. Therefore, the items were
not in the possession of a "person not a party to the action."
Moreover, "'[i]n order to assert [a] right to compulsory
process, the accused is required to make a plausible showing
that the testimony sought would be both material and favorable
to his defense.'" Jones v. City of Virginia Beach, 17 Va. App.
405, 409, 437 S.E.2d 576, 579 (1993) (quoting Howard v.
Commonwealth, 6 Va. App. 132, 144, 367 S.E.2d 527, 534 (1988)
(citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982))).
Here, appellant failed to submit the transcript of the
December 17, 1998 hearing at which he argued against quashing
the subpoenas. Therefore, we have no record showing the bases
of appellant's materiality arguments. In addition, the record
fails to show that radio communication tapes exist and are
available. Moreover, the record fails to show how the booking
photographs and taped radio communications were material to
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appellant's defense in his DUI trial. Cf. Cox, 227 Va. at 328,
315 S.E.2d at 230.
VOIR DIRE COMMENTS AND THE ARREST REPORT
During voir dire of the venire, the Commonwealth's attorney
provided the following explanation to potential jurors:
This is a case of driving under the
influence of alcohol, and as you know, in
Virginia, I assume you know, the legal limit
is a .08, above which, you're driving with a
BAC, a blood alcohol level higher than that
is a violation of the law. In this
particular case, which is a charge of
driving under the influence of alcohol,
there will be no testimony of any chemical
test –
Defense counsel moved for a mistrial 1 and argued this was an
improper comment on appellant's refusal to take a blood alcohol
test, and it amounted to "the functional equivalent of saying
this Defendant took his Fifth Amendment rights or something."
The Commonwealth's attorney contended she was simply trying to
explain that one way of proving DUI is by providing evidence
other than blood test results. The trial court found that the
1
"Because the jury had not been sworn, trial had not
commenced, jeopardy had not attached, and no mistrial could be
declared. Therefore, appellant's remedy lay in disqualifying
the entire jury venire. Whether to disqualify an entire venire
is a matter committed to the sound discretion of the trial
judge." Brown v. Commonwealth, 28 Va. App. 315, 326, 504 S.E.2d
399, 404 (1998).
Because we apply an abuse of discretion standard in
reviewing decisions involving motions to disqualify a venire,
see id., and motions for mistrials, see Beavers v. Commonwealth,
245 Va. 268, 280, 427 S.E.2d 411, 420 (1993), the failure to
make the proper objection was not fatal.
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prosecutor did not improperly comment on appellant's refusal to
permit a blood test in violation of Code § 18.2-268.10, and it
denied appellant's motion.
"Code § 18.2-266 prohibits drinking alcohol and driving
under either of two separate and distinct circumstances."
Thurston v. Commonwealth, 15 Va. App. 475, 482, 424 S.E.2d 701,
705 (1992). Code § 18.2-266(i) makes it "unlawful for any
person to drive or operate any motor vehicle . . . while such
person has a blood alcohol concentration of 0.08 percent or more
by weight by volume or 0.08 grams or more per 210 liters of
breath as indicated by a chemical test." Code § 18.2-266(ii)
prohibits driving "while such person is under the influence of
alcohol." "[B]eing 'under the influence of alcohol,' is
established when any person has consumed enough alcoholic
beverages to 'so affect his manner, disposition, speech,
muscular movement, general appearance or behavior, as to be
apparent to observation.'" Thurston, 15 Va. App. at 483, 424
S.E.2d at 705 (quoting Gardner v. Commonwealth, 195 Va. 945,
954, 81 S.E.2d 614, 619 (1954)). Therefore, where the
Commonwealth offers no chemical test results of an accused's
blood or breath, the issue becomes whether the accused is under
the influence, which has "'to be determined from all of the
evidence of his condition at the time of the alleged offense.'"
Leake v. Commonwealth, 27 Va. App. 101, 110, 497 S.E.2d 522, 526
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(1998) (quoting Brooks v. City of Newport News, 224 Va. 311,
315, 295 S.E.2d 801, 804 (1982)).
Code § 18.2-268.10 provides:
The failure of an accused to permit a blood
or breath sample to be taken to determine
the alcohol or drug content of his blood is
not evidence and shall not be subject to
comment by the Commonwealth at the trial of
the case, except in rebuttal; nor shall the
fact that a blood or breath test had been
offered the accused be evidence or the
subject of comment by the Commonwealth,
except in rebuttal.
Here, because there were no test results, the Commonwealth
was required to prove from other evidence that appellant drove
while under the influence of alcohol. See Code § 18.2-266(ii);
Brooks, 224 Va. at 315, 295 S.E.2d at 804. Therefore, the
prosecutor's comment was an accurate and valid statement to
prospective jurors advising them that chemical tests and the
statutory rebuttable presumption of intoxication were not going
to be used to prove that appellant was under the influence of
alcohol. Furthermore, in her comments, the prosecutor made no
reference whatsoever to appellant's refusal to submit to the
chemical test as an explanation for the need to resort to other
evidence. Accordingly, the trial court did not abuse its
discretion in denying appellant's motion.
During rebuttal, the Commonwealth moved to admit into
evidence Galati's arrest report in which Galati noted that
appellant "stated 'I'm drunk.'" Defense counsel objected on the
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basis that Galati "can testify as to what he said about it, but
I don't believe the document comes into evidence, Your Honor."
The trial judge admitted it without further comment. On appeal,
appellant contends the trial court erred in admitting the arrest
report because it contained inadmissible evidence regarding
appellant's refusal to take a blood alcohol test. The back of
the arrest report contains two references to "Refused" in the
sections describing test locations.
Appellant failed to make a proper objection or move that
the references to refusal be redacted. "The Court of Appeals
will not consider an argument on appeal which was not presented
to the trial court." Ohree v. Commonwealth, 26 Va. App. 299,
308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18. Accordingly,
Rule 5A:18 bars our consideration of this question on appeal.
Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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