Allen v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia

OLAN CONWAY ALLEN

v. Record No. 2560-93-2 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA AUGUST 15, 1995

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Michael T. Hemenway (George H. Dygert &
Associates, on briefs), for appellant.

Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.

The appellant, Olan Conway Allen, was convicted of breaking

and entering and grand larceny. On appeal, he contends that the

Commonwealth failed to produce exculpatory evidence as required

by Brady v. Maryland, 373 U.S. 83 (1963), that the indictments

should have been dismissed on double jeopardy grounds, and that

the trial court gave an improper jury instruction. For the

following reasons, we affirm the trial court's decisions.

In 1992, the appellant was charged with breaking and

entering and grand larceny. A jury found him guilty on both

charges. Before sentencing and entry of the conviction orders,

the Commonwealth's attorney moved for a mistrial on the ground

that one of the petit jurors was not qualified under

Code § 8.01-337 because she was not a resident of Albemarle

County, but rather resided in the City of Charlottesville. The
appellant agreed that because the juror was not qualified to

serve, the guilty verdicts could not stand. However, the

appellant requested that the charges be dismissed. The trial

court granted the Commonwealth's motion to declare a "mistrial"

and set aside the verdicts. Second and third trials ended in

mistrials; however, in a fourth trial, the appellant was

convicted of both charges, from which this appeal followed.

I. DOUBLE JEOPARDY
The appellant contends that the trial court erred by not

dismissing the charges against him after the court erroneously 1

granted the Commonwealth's motion for a "mistrial" at the

conclusion of the first trial. He argues that he was in jeopardy

at the first trial, and because the court erred in setting the

verdicts aside, the Commonwealth is prohibited from placing him

in jeopardy a second time.

When the trial judge considered the Commonwealth's motion

for a "mistrial," the appellant acquiesced in the Commonwealth's

position that the guilty verdicts had been rendered by a jury

improperly constituted and had to be set aside. He argues,

however, that in agreeing that the verdicts could not stand, he
1
Insofar as the record reflects, at the post-trial motion to
set aside the verdicts, the trial judge, Commonwealth's attorney,
and defense counsel believed, in good faith, that because the
juror was not qualified, the verdicts were invalid and had to be
set aside. However, the Attorney General concedes on appeal that
based upon the provisions of Code § 8.01-352(b) and the holding in
Thurman v. Commonwealth, 107 Va. 912, 915, 60 S.E. 99, 100 (1908),
the irregularity did not invalidate the verdicts or justify the
trial court in setting them aside.

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was not acquiescing in the court declaring a "mistrial."

Apparently, the appellant, for purposes of double jeopardy

protections, is attempting to draw a meaningful distinction

between a trial court setting aside guilty verdicts and declaring

a mistrial. However, on the facts of this case, we find no

rational distinction, for purposes of determining former

jeopardy, between the appellant agreeing, in effect, to the trial

court's setting aside the verdicts and agreeing to declare a

"mistrial." The fact that the Commonwealth's attorney moved for

a mistrial, rather than to set aside the verdicts, and the trial

court used that terminology is of no consequence. The appellant

agreed that because the juror was not qualified, the verdicts

could not stand. Therefore, both parties concurred, in effect,

in the Commonwealth's motion for a "mistrial" or to set aside the

verdict on the mistaken belief that such action was required due

to a defect in constituting the jury.
The Double Jeopardy Clause of the Fifth Amendment provides

that no person shall be "twice put in jeopardy of life or limb"

for the same offense.
As the Supreme Court has explained: The
underlying idea, one that is deeply ingrained
in at least the Anglo-American system of
jurisprudence, is that the State with all its
resources and power should not be allowed to
make repeated attempts to convict an
individual for an alleged offense, thereby
subjecting him to embarrassment, expense and
ordeal and compelling him to live in a
constant state of anxiety and insecurity as
well as enhancing the possibility that even
though innocent he may be found guilty.

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United Stated v. Ham, 1995 WL 369605,*3 (4th Cir. June 20, 1995)

(quoting Green v. United States, 355 U.S. 184, 187-88 (1957)).

A citizen may relinquish or waive a constitutional right or

protection, but before being considered to have done so, the

action constituting a waiver or relinquishment must be clear.

For example, a defendant waives his Fifth Amendment protection

contained in the Double Jeopardy clause by consenting to the

trial court's declaration of a mistrial, see United States v.
Jorn, 400 U.S. 470, 484-85 (1971) and Ham (citing multiple

circuits that have adopted an implied consent rationale),

provided the prosecutor is not guilty of misconduct designed to

induce a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 673

(1982) (holding that a defendant may invoke the double jeopardy

bar if the conduct causing the mistrial was based on

prosecutorial or judicial misconduct intended to provoke the

defendant into moving for a mistrial). Similarly, a citizen may

waive his Fourth Amendment right to be free from unreasonable

searches and seizures by consenting to a warrantless unjustified

search. Limonja v. Commonwealth, 8 Va. App. 532, 539, 383 S.E.2d

476, 480 (1989), cert. denied, 495 U.S. 905 (1990). A suspect

may also give up his Fifth Amendment right to not be compelled to

give incriminating evidence by voluntarily testifying or by

knowingly consenting to answer questions during an extra-judicial

custodial interrogation. Jenkins v. Anderson, 447 U.S. 231

(1980). Pugliese v. Commonwealth, 16 Va. App. 82, 428 S.E.2d 16

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(1993). A defendant's consent to a trial court's action

declaring a mistrial may be implied from circumstances, provided

they clearly indicate that the defendant acquiesced in the

actions of the prosecutor or the court. See Ham at *4. See also

United States v. Puleo, 817 F.2d 702, 705 (11th Cir.), cert.

denied, 489 U.S. 978 (1987) (holding that "consent 'may always be

implied from a totality of the circumstances attendant on the

declaration of a mistrial'") (quoting United States v. Goldstein,

479 F.2d 1061, 1067 (2nd Cir.), cert. denied, 414 U.S. 873
(1973)).

Although the trial court characterized its action in voiding

the verdicts as a mistrial, the court was setting aside the

verdicts. See Blacks Law Dictionary, 1002 (6th ed. 1990)

(defining a mistrial as a trial not resulting in a lawful

decision or verdict because of serious prejudicial misconduct or

error). Regardless of the terminology used by the trial court,

for purposes of the former jeopardy protection, we find no

difference of constitutional significance between setting aside a

verdict because of error in the composition of the jury and

declaring a mistrial had the same error been discovered before

the verdict. Here, the defendant agreed with the trial court's

erroneous holding that the verdicts could not stand due to the

error in constituting the jury. By agreeing that the verdicts

could not stand, the defendant consented to the court's action

setting aside the verdicts. By agreeing that the jury was

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improperly constituted and that the verdicts were invalid, the

appellant invited the trial judge to set aside the verdicts. We

hold that in doing so, the defendant waived his double jeopardy

protections. See Puleo, 817 F.2d at 705.

"No litigant, even a defendant in a criminal case, will be

permitted to approbate and reprobate--to invite error, as the

defense admittedly did here, and then to take advantage of the

situation created by his own wrong." Fisher v. Commonwealth, 236

Va. 403, 417, 374 S.E.2d 46, 54 (1988), cert. denied, 490 U.S.
1028 (1989).

II. EXCULPATORY EVIDENCE

The appellant next contends that the Commonwealth wrongfully

withheld from him exculpatory material.

No general constitutional right to discovery exists in a

criminal case. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

Rule 3A:11 defines the scope of discovery in a felony

prosecution. In addition, however, Brady recognizes the

prosecution's due process-based duty to disclose to an accused

exculpatory evidence, that is, evidence which is material to

guilt or punishment and favorable to the accused. Williams v.

Commonwealth, 16 Va. App. 928, 932-33, 434 S.E.2d 343, 346

(1993). See also Knight v. Commonwealth, 18 Va. App. 207, 212,

443 S.E.2d 165, 168 (1994). However, in order to justify

reversal on appeal, an appellant must not only show that

exculpatory evidence was not disclosed, but must show prejudice

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as a result of the Commonwealth's failure to disclose. Stotler

v. Commonwealth, 2 Va. App. 481, 484, 346 S.E.2d 39, 40-41

(1986).

At trial, an investigator testified that he showed

photographs of possible suspects to the witnesses "sometime in

the latter part of August," which would have been a few days

after the crimes occurred. After trial, the investigator told

the defense that he determined the actual dates were in mid-to-

late September. The appellant argues that the investigator's

uncertainty as to the exact date was exculpatory and that the

Commonwealth should have disclosed that the investigator was

uncertain in response to the request for exculpatory evidence.

Appellant argues that with this evidence, he could have shown

that the witness was mistaken and not credible, that the

identification was suspect because of the lapse in time, or that,

perhaps, more than one suggestive lineup occurred.
We do not find the investigator's uncertainty as to the

precise date of the photographic lineup to be significant or

exculpatory. The witness's answer was not specific; it included

a time frame of several weeks. Furthermore, had the appellant

known and been able to show at trial that the investigator was

uncertain whether the photographic lineup was conducted in August

or September, we cannot say that it probably would have produced

a different outcome or result in the trial. See United States v.
Bagley, 473 U.S. 667, 682 (1985). This type of uncertainty or

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discrepancy in evidence frequently occurs and is elicited at

trial during cross-examination. See Epperly v. Booker, 997 F.2d

1, 9 (4th Cir.), cert. denied, 114 S. Ct. 611 (1993) (stating

that a prosecutor cannot be deemed to have wrongly suppressed

exculpatory evidence when it was available from other sources

such as cross-examination). On the facts of this case, the

Commonwealth was not required to determine the degree to which

the investigator was certain of the date on which he conducted

the photographic lineup and was not required to provide such

information under its duty to disclose exculpatory evidence.
The appellant also contends that the Commonwealth withheld

evidence of an interview with the appellant's cousin, Betty

Sheffey, in which Sheffey told the investigators that the

appellant was not involved in the crime. Sheffey's statement was

an unfounded conclusion and was not exculpatory. She gave no

facts or information to the officers that she knew of the

appellant's whereabouts or why she believed him not to have been

involved. An unfounded belief, such as the one given by Sheffey,

is not exculpatory evidence which the prosecution is required to

disclose.

III. JURY INSTRUCTIONS

The appellant contends that the trial court improperly

instructed the jury by omitting an essential element in the

breaking and entering instruction. Instruction No. 5 stated:
OLAN C. ALLEN is charged with the crime of
breaking and entering. The Commonwealth must
prove beyond a reasonable doubt each of the

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 following elements of that crime:

(1) That the dwelling house of Henry and
Ruth Chiles was broken into and entered
without permission; and

(2) That the breaking and entering was done
in the daytime; and

(3) That it was done with the intent to
commit larceny.

If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense as charged, then you shall find OLAN
C. ALLEN guilty.

The appellant argues that the instruction is fatally flawed

because it does not tell the jury that they were required to find

beyond a reasonable doubt that Olan Conway Allen, the defendant,

was the person who broke and entered the Chiles' home. He

contends that the instruction allowed the jury to find him guilty

if they found that a breaking and entering occurred without

finding that he was the criminal agent.

The appellant acknowledges that he did not object to the

giving of Instruction No. 5 in this form. Generally, Rule 5A:18,

requiring a contemporaneous objection, would bar the appellant

from raising the issue on appeal. He contends, however, that in

order to avoid a miscarriage of justice, we must consider the

trial court's failure to instruct the jury on the fundamental

requirement that the Commonwealth prove that the defendant was

the criminal agent.

"[T]o avail himself of the [ends of justice exception] the

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defendant had to affirmatively show that 'a miscarriage of

justice [has] occurred, not . . . that a miscarriage might have

occurred' [and it] requires that the error be clear, substantial

and material." Brown v. Commonwealth, 8 Va. App. 126, 132, 380

S.E.2d 8, 11 (1989) (quoting Mounce v. Commonwealth, 4 Va. App.

433, 436, 357 S.E.2d 742, 744 (1987)).

While the ends of justice exception is narrow, Mounce, 4 Va.

App. at 436, 357 S.E.2d at 744, the exception "requires

correction of an instruction which allows a jury to convict a

defendant without proof of an element of a crime." Campbell v.

Commonwealth, 14 Va. App. 988, 992, 421 S.E.2d 652, 654 (1992),

aff'd, 246 Va. 174, 431 S.E.2d 648 (1993). One may not be

convicted for conduct which is not criminal. Jimenez v.

Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). The

overriding purpose of jury instructions is to "inform the jury as

to the law." Cooper v. Commonwealth, 2 Va. App. 497, 500, 345

S.E.2d 775, 777 (1986) (quoting 75 Am. Jur. 2d Trial § 573

(1974)). When informing the jury, the trial court must be

careful to do so in such a manner as to not mislead the jury.
Id. The trial court has an affirmative duty to properly

instruct. Jimenez, 241 Va. at 250, 402 S.E.2d at 681.

Even though we accept the appellant's contention that

Instruction No. 5 did not expressly inform the jury that in order

to find the defendant guilty, they must find that he was the

person who broke and entered the Chiles' home, that requirement

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of proof was clearly implicit in the trial process from

indictment through arraignment and verdict. Also, it was part of

the other instructions, including the instruction on larceny.

Thus, on this record, Instruction No. 5 as given could not have

misled the jury or allowed them to find the defendant guilty

without finding that he was the criminal agent. The evidence

proved beyond a reasonable doubt that a crime had been committed

and that the defendant committed it. The appellant could not

have been convicted for conduct that was not criminal. Moreover,

because the jury could not reasonably have applied Instruction

No. 5 absent proof of criminal agency, no miscarriage of justice

occurred. Because no miscarriage of justice could have resulted

from the failure to have stated expressly the obvious requirement

in the jury instruction, appellate review of the issue is barred

by Rule 5A:18.
Accordingly, we affirm the convictions.

Affirmed.

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