COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
BRUCE RANDALL ALLEN, S/K/A
BRUCE RANDLE ALLEN
MEMORANDUM OPINION * BY
v. Record No. 2737-96-2 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 10, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Amy M. Curtis (Theodore N. I. Tondrowski;
Wayne R. Morgan, Jr.; Grennan & Tondrowski,
on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Richard Cullen, Attorney General; Monica S.
McElyea, Assistant Attorney General, on
brief), for appellee.
Bruce Randall Allen contends that the trial court erred:
(1) by failing to review statements made to law enforcement
officials by alibi witnesses, (2) in refusing to require the
Commonwealth to disclose said statements, and (3) in denying his
motion to disqualify the Commonwealth's Attorney. We disagree,
and affirm the judgment of the trial court.
On the evening of October 18, 1995, Allen and another man
went to the home of Alan and Ida Bowlin. When Mr. Bowlin stepped
outside to talk with Allen, Allen struck him, causing him to fall
backwards. Allen then stabbed Mr. Bowlin, dragged him into the
house, and stabbed him several more times. Allen and the other
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
man then stabbed Mrs. Bowlin to death. Before leaving, they
stole several hundred dollars from Mr. Bowlin's wallet.
Allen was charged initially with capital murder, attempted
capital murder and robbery. On May 29, 1996, a jury convicted
him of first-degree murder, attempted capital murder and robbery.
I. DISCOVERY OF ALIBI WITNESS STATEMENTS
On March 19, 1996, Allen filed a motion seeking discovery of
all exculpatory evidence. At the hearing on the motion, Allen
argued that he was entitled to statements made to the police by
witnesses who provided alibis for himself, for his codefendant
Larry Fowlkes, and for Sharddi Moore, who had been dismissed
previously as a codefendant. The Commonwealth represented that
it possessed "no evidence . . . that anybody is alibied . . .
here for the complete period of time" during which the crimes
were believed to have occurred.
The trial court ordered the Commonwealth to divulge the
identity of each person who "gave a partial, a full, or even a
small bit of alibi regarding . . ." either Fowlkes or Allen.
Subsequently, the Commonwealth provided Allen with the names and
addresses of persons identified as potential alibi witnesses.
On April 18, 1996, Allen moved to compel discovery. He
asserted that the statements of Fowlkes and Moore were
exculpatory because they showed that neither man was with Allen
on the night of the murder. The Commonwealth's Attorney informed
the trial court that he knew of no exculpatory statements from
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Fowlkes and Moore. He stated that initially both Fowlkes and
Moore had denied involvement in the crimes, but that later Moore
had confessed his involvement to another person. He stated that
Moore had given two further statements in which he claimed to
have been at two different locations during the same period of
time. The Commonwealth's Attorney stated that Fowlkes claimed
that he had attended church until 9:00 p.m. on the evening in
question and that three witnesses supported his alibi. The trial
court denied Allen's request for Fowlkes' and Moore's statements.
In addition, Allen argued that the statements given to
police by Fowlkes' and Moore's alibi witnesses constituted
material and exculpatory evidence because they tended to
depreciate the value of testimony from the anticipated
Commonwealth's witnesses. He requested disclosure of statements
made to the police by his potential alibi witnesses. He set
forth the content of their expected statements. Allen admitted
that the Commonwealth had provided him the names of his potential
alibi witnesses and that they were not unavailable to him. The
trial court again denied Allen's motion that the Commonwealth be
required to disclose any statements made by potential alibi
witnesses.
A.
Allen contends that the trial court erred in failing to
review the alibi witness statements in camera. We disagree.
In Virginia, defendants have no general constitutional right
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to discovery in criminal matters. However, Rule 3A:11 provides
for limited disclosure by the Commonwealth in felony cases. In
addition, "suppression by the prosecution of evidence favorable
to the accused upon request violates due process where the
evidence is material either to guilt or to punishment . . . ."
Brady v. Maryland, 373 U.S. 83, 87 (1963). See Code
§ 19.2-265.4.
Generally, "[i]f in doubt about the exculpatory nature of
the material, a prosecutor should submit it to the trial court
for an in camera review to determine if it is exculpatory and
should be disclosed." Lemons v. Commonwealth, 18 Va. App. 617,
621, 446 S.E.2d 158, 161 (1994). Ultimately, however, "[w]hether
evidence is material and exculpatory and, therefore, subject to
disclosure under Brady is a decision left to the prosecution."
Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111
(1994) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987)).
In Bowman, the Supreme Court noted that:
The trial court's determination of the
question whether it should undertake the
review of the disputed material is a
discretionary matter. Whether that
discretion was properly exercised will depend
on the specific factors of each case, such as
the reasons given by the defense in
justifying access to the disputed material,
the time of the request, or the amount of
material involved.
Id. at 135-36, 445 S.E.2d at 113 (citations omitted) (emphasis
added). Noting discrepancies in the trial testimony and the
limited burden of reviewing a single document, the Supreme Court
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concluded that the trial court abused its discretion by denying
Bowman's motion that it review the report in camera. Id. at 136,
445 S.E.2d at 113. The Court found further error in the trial
court's refusal to place the disputed evidence under seal in the
record on appeal. Id.
Allen did not move the trial court to review the witness
statements. 1 Nor did he move that the documents be placed under
seal for the record on appeal. "[S]peculation that such
statements might contain 'potentially exculpatory evidence'
imposes neither a duty of disclosure upon the Commonwealth, nor a
duty of inspection in camera by the court." Ramdass v.
Commonwealth, 246 Va. 413, 420, 437 S.E.2d 566, 570 (1993)
(citations omitted). We need not rule upon the non-exercise of a
judicial power that was not invoked. While the trial court could
have reviewed the statements in camera sua sponte, it was not
required to do so.
B.
Allen contends that the trial court erred in denying his
motion to require the Commonwealth's disclosure of any alibi
witness statements made to the police. We disagree.
Under Brady v. Maryland, it is only the
1
In his discovery motion, Allen requested "[a]ny and all
reports and records which show that the witness has given an
inconsistent or contradictory statement with regard to any matter
in this case." At the pretrial hearing on the motion, Allen
asked that the trial court review the information in camera to
determine whether inconsistent statements existed. The trial
court denied the request, and Allen does not appeal that
decision.
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suppression of "material" exculpatory
evidence by the government that violates a
defendant's due process rights. Evidence 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' of a different
result is [] shown when the Government's
evidentiary suppression 'undermines
confidence in the outcome of the trial'."
Hoke v. Netherland, 92 F.3d 1350, 1356 (4th Cir.), cert. denied,
117 S. Ct. 630 (1996) (citations omitted).
Allen failed to secure the statements for the record on
appeal, or to request that they be placed under seal for our
review. Thus, we cannot determine whether the Commonwealth
withheld evidence required to be disclosed under Brady. 2
"A defendant cannot simply allege the
presence of favorable material and win
reversal of his conviction." Rather, a
defendant must prove the favorable character
of evidence he claims has been improperly
suppressed. Speculative allegations are not
adequate.
Hughes v. Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451, 461
(1990) (en banc) (citations omitted) (emphasis in original).
"'[T]he Brady rule does not apply if the evidence in
2
"Even if the statement is favorable to the defendant on the
issue of guilt or punishment, it must also be material before the
defendant is entitled to a new trial." Humes v. Commonwealth, 12
Va. App. 1140, 1143, 408 S.E.2d 553, 555 (1991). Because we
cannot state that the extrajudicial statements are exculpatory,
we need not determine whether they are "material," despite their
potential utility in preparing and presenting Allen's case. See
White v. Commonwealth, 12 Va. App. 99, 102-04, 402 S.E.2d 692,
695, aff'd on reh'g en banc, 13 Va. App. 284, 410 S.E.2d 412
(1991).
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question is available to the defendant from other sources.'"
United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990)
(citation omitted). See Hoke, 92 F.3d at 1355-56. In Wilson,
the defendant sought discovery of statements made by a potential
alibi witness to government officials. He supported his
discovery request with an affidavit from the witness that
detailed her alleged interactions with government officials.
Wilson, 901 F.2d at 380-81. The trial court denied his request.
The Court of Appeals found no Brady violation because Wilson was
free to question the alibi witness in preparation for trial. Id.
at 381. The Court noted that: "In situations such as this,
where the exculpatory information is not only available to the
defendant but also lies in a source where a reasonable defendant
would have looked, a defendant is not entitled to the benefit of
the Brady doctrine." Id.
The Commonwealth provided Allen the identities of his alibi
witnesses. Allen acknowledged that he received the list and that
the witnesses were not unavailable to him. He described in his
motion the contents of the alleged statements, and the alibi
witnesses' testimony at trial was consistent with those
assertions.
II. DISQUALIFICATION OF PROSECUTOR
In 1983, before he was elected Commonwealth's Attorney, Mayo
Gravatt represented Allen on charges resulting in his conviction
for breaking and entering and petit larceny. Allen moved to
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disqualify Mr. Gravatt from prosecuting this case because they
had "shared an Attorney/Client privilege and Allen disclosed to
his Attorney, Gravatt, confidential information concerning the
case and himself." Allen contends that the trial court abused
its discretion in denying this motion. We disagree.
"The decision whether to disqualify a Commonwealth's
attorney in a particular case is committed to the sound
discretion of the trial court." Lux v. Commonwealth, 24 Va. App.
561, 569, 484 S.E.2d 145, 149 (1997). However:
A trial court should grant a criminal
defendant's motion to disqualify under
circumstances where it can be reasonably
inferred that the Commonwealth's attorney has
either a personal interest in the outcome of
the prosecution or an interest arising from
his or her former representation of the
defendant that conflicts with the fair minded
exercise of his or her prosecutorial
discretion.
Id. at 570-71, 484 S.E.2d at 149. See Cantrell v. Commonwealth,
229 Va. 387, 329 S.E.2d 22 (1985).
In Kilgore v. Commonwealth, 15 Va. App. 684, 426 S.E.2d 837
(1993), we held that "where a prosecutor previously has
represented a defendant it is reversible error for that attorney
to assist in a later prosecution of a former client on a matter
for which the attorney-client relationship has been established."
Id. at 694, 426 S.E.2d at 842. The "sacred relationship"
between an attorney and a client: "'is severely compromised, if
not destroyed, when after representing a client, a lawyer joins
in the criminal prosecution of that client with respect to the
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identical matter about which the attorney originally counseled
the client.'" Id. (quoting United States v. Schell, 775 F.2d
559, 565 (4th Cir. 1985) (emphasis in original).
Whether a Commonwealth's attorney should be disqualified
from prosecuting a defendant with whom the Commonwealth's
attorney had a prior attorney-client relationship in an unrelated
criminal matter is an issue of first impression in Virginia.
Several jurisdictions have required or upheld disqualification of
prosecutors who previously had an attorney-client relationship
with the defendant.
In Mattress v. State, 564 S.W.2d 678 (Tenn. Crim. App.
1977), the court upheld the trial court's disqualification of the
prosecutor. Because the prosecutor had previously represented
the codefendants on unrelated criminal charges, the Tennessee
court found that disqualification was proper and "adequate to
dispel any appearance of impropriety," even though the prosecutor
did not recall the prior representation. Id. at 679.
Similarly, in Reaves v. State, 574 So.2d 105 (Fla. 1991),
the Florida Supreme Court explained that disqualification was
required of a prosecutor "who previously has defended the
defendant in any criminal matter that involved or likely involved
confidential communications with the same client." Id. at 107.
In Reaves, the prosecutor of a murder charge had represented the
defendant previously on grand larceny charges. The larceny
charge involved issues involved in the murder case, particularly
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mitigating factors to be considered during the penalty phase.
Id. at 106. See also State v. Stenger, 760 P.2d 357 (1988)
(disqualifying prosecutor in capital case where defendant had
acknowledged uncharged crimes, drug use, and anti-social behavior
to the prosecutor during prior representation by the prosecutor
on unrelated matter).
However, the majority of jurisdictions holds that "[w]here
the prosecutor's earlier representation of the defendant was in
an unrelated matter . . . disqualification is not required,
especially if a number of years have passed since the earlier
3
representation." 63C Am. Jur. 2d Prosecuting Attorneys § 27
(1984) (footnotes omitted). See generally Allan L. Schwartz and
Danny R. Veilleux, Annotation, Disqualification of Prosecuting
Attorney in State Criminal Case on Account of Relationship with
3
See, e.g., Havens v. Indiana, 793 F.2d 143 (7th Cir. 1986);
United States v. Bolton, 905 F.2d 319, 322 (10th Cir. 1990);
Edwards v. State, 286 So.2d 308, 311 (Ala. Crim. App. 1973)
(holding that prosecutor need not recuse self in murder
prosecution when represented defendant on unrelated charge one
year earlier); Osborn v. District Court, Fourteenth Judicial
Dist., 619 P.2d 41 (Colo. 1980) (prosecution for burglary after
representing defendant thirteen years earlier on disorderly
conduct charge not "substantially related"); Park v. State, 170
S.E.2d 687 (Ga.), modified, 408 U.S. 935 (1969); State v.
Laughlin, 652 P.2d 690 (Kan. 1982); Cole v. Commonwealth, 553
S.W.2d 468, 472 (1977) (prosecution's use of conviction from
prior representation matter of public record); State v. Johnson,
310 So.2d 600 (La. 1975); People v. Vanderpool, 629 N.Y.S.2d 307
(N.Y. App. Div. 1995) (inference of impropriety stemming from
prior representation of defendant ten years earlier in unrelated
criminal matter not sufficient to warrant special prosecutor
absent proof of prejudice); Munguia v. State, 603 S.W.2d 876,
878-79 (Tex. Crim. App. 1980) (prosecutor that represented
defendant on rape charge not disqualified from assisting in
subsequent aggravated rape prosecution).
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Accused, 42 A.L.R.5th 581, § 4 (1996).
For example, in Green v. State, 430 A.2d 1122 (Md. Ct. Spec.
App. 1981), the defendant contended that his conviction for theft
should be reversed because the prosecutor had represented him two
years earlier on charges resulting in his conviction for petit
larceny. Id. at 1124. Rejecting this argument, the Maryland
court held:
The mere fact that as a private attorney
the prosecutor had once represented appellant
in an unrelated case did not, standing alone,
result in a conflict of interest such as to
disqualify that attorney from acting as
prosecutor in the instant case. On the
record before us, there is no claim or
indication that at the time the instant
charge was brought against appellant there
existed any attorney-client relationship
between him and the prosecutor . . . . Nor
is there any claim or indication that in
investigating or prosecuting the present case
the prosecutor made use of any confidential
information he may have received from the
appellant in the prior case.
Id.
We find the majority view persuasive. Attorneys litigate in
an adversarial system. They are called upon to take various
positions in representing people under differing circumstances.
The Commonwealth's attorney must maintain impartiality and must
guard against any improper bias in securing a fair trial for the
accused. See Kilgore, 15 Va. App. at 693, 426 S.E.2d at 842
(1993). However, the Commonwealth's attorney must be free to
perform his or her prosecutorial duties, unless restrained by
actual impropriety or prejudice, or by a substantial risk
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thereof. See Lux, 24 Va. App. at 574, 484 S.E.2d at 151 (holding
that due process does not entitle defendant to trial free of the
appearance of impropriety).
Nothing in the record suggests that Mr. Gravatt's
representation of Allen on an unrelated matter thirteen years
prior to this case imposed any impediment to his impartial
prosecution of this case. Allen has made no representation or
showing that his relationship with Mr. Gravatt continued in any
respect, or that Mr. Gravatt possessed any confidential
information that would influence the performance of his duties.
The only connection between the two unrelated proceedings
lies in the statutory mandate that "the Commonwealth shall
present the defendant's prior criminal convictions" during the
jury's sentencing proceeding. See Code § 19.2-295.1. While the
record does not disclose whether the jury received notice of
Allen's criminal history, we hold that the presentation of a
prior conviction, a ministerial act concerning a matter of public
record, did not involve revelation of confidential information.
The earlier representation created neither actual prejudice, nor
a suggestion of prejudice.
The judgment of the trial court is affirmed.
Affirmed.
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Benton, J., concurring.
I concur in Parts IA and II. I also concur in the portion
of Part IB which holds that because the record does not contain
the statements at issue we have no basis to determine whether a
Brady violation occurred. Therefore, I concur in the judgment
affirming the convictions.
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