Ramirez v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, Fitzpatrick and Senior Judge Duff
Argued at Alexandria, Virginia

JOSE ROBERT RAMIREZ

v. Record No. 2487-93-4 OPINION BY
JUDGE CHARLES H. DUFF
COMMONWEALTH OF VIRGINIA MAY 2, 1995

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge

James C. Love, IV (Love, Kielsgard & Associates, on
brief), for appellant.
Michael T. Judge, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for
appellee.

Jose Robert Ramirez (appellant) was convicted of rape. He

argues in this appeal that the trial court erred in denying his

request for a subpoena duces tecum directed to the Fairfax County

Department of Social Services (DSS). We disagree and affirm the

judgment of the trial court.

Appellant was indicted for the rape of his juvenile daughter

occurring "[o]n or between the 1st day of September, 1991, and

the 31st day of October, 1991." He had threatened his daughter

by telling her that if she told anyone about the incident, he

would send her to El Salvador and make her mother's life

miserable. The victim did not tell anyone until the spring of

1993, when she told her grandmother. The victim then spoke to

Investigator Promisel (Promisel) of the Fairfax County Police

Department and Child Protective Services social worker Millie

Campbell (Campbell).

At her mother's insistence, the victim called Campbell to

report that the 1991 rape claim was untrue. The victim later
told Promisel that her mother told her to say the report about

the rape was a lie and threatened to kill herself if the victim

went forward with the case.

Prior to trial, appellant filed a motion, pursuant to Rule

3A:12(b), requesting a subpoena duces tecum directed to DSS and

Promisel, "commanding them to deliver all documents, records,

reports, statements, letters, recordings, witness statements,

investigative reports, photographs, or other writings or items

relating to the allegations of defendant's misconduct toward [the

victim]."
At a hearing on appellant's motion, the court found DSS to

be an agent of the Commonwealth, investigating the subject of the

case, and denied the requested subpoena. The court, however,

noted that, pursuant to a previously entered discovery order, if

the Commonwealth was aware of the existence of any exculpatory

materials, it was required to disclose them to appellant. The

Commonwealth's discovery response contained information that

"[t]he victim called Child Protective Services and stated that

she wanted to withdraw her accusation. Upon meeting with Millie

Campbell and Investigator Promisel, the victim advised that she

was raped, but her mother had been trying to get her to recant."

"[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).

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 Rule 3A:11(b)(1) provides that an accused shall be entitled

to certain of his own statements and to certain reports known to

the Commonwealth's Attorney to be in the possession, custody or

control of the Commonwealth. Rule 3A:11(b)(2) provides that an

accused may inspect and copy certain other documents and tangible

items within the possession, custody or control of the

Commonwealth. Rule 3A:11(b)(2), however, also states:

This subparagraph does not authorize the discovery or

inspection of statements made by Commonwealth witnesses

or prospective witnesses to agents of the Commonwealth

or of reports, memoranda or other internal Commonwealth

documents made by agents in connection with the

investigation or prosecution of the case, except as

provided in clause (ii) of subparagraph (b)(1) of this

Rule.

(Emphasis added).

Rule 3A:12(b), which governs the issuance of subpoenas duces

tecum in felony cases in circuit courts, 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 clerk may issue a subpoena duces
tecum for the production of writings or objects
described in the subpoena.

The Fairfax DSS is a "local department" of the state

Department of Social Services. See Code § 63.1-248.2. Code

§ 63.1-248.6, entitled, "Local departments to establish child-

protective services; duties," provides in pertinent part:
A. Each local department shall establish child-

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 protective services . . . . The local department shall
be the public agency responsible for receiving and
investigating complaints and reports [of child abuse
and neglect] . . . .

* * * * * * *

E. The local department shall upon receipt of a report
or complaint:
1. Make immediate investigation;

* * * * * * *

5. Report immediately to the attorney for the
Commonwealth and make available to him the records of
the local department upon which such report is based,
when abuse or neglect is suspected in any case
involving . . . (iii) any sexual abuse, suspected
sexual abuse or other sexual offense involving a child
. . . and provide the attorneys for the Commonwealth
with records of any prior founded disposition of
complaints of abuse or neglect involving the victim.

Pursuant to the statute, DSS was required to investigate the

victim's complaint that her father had raped her, and upon

suspicion of such sexual abuse, it was required to report to the

Commonwealth's Attorney and provide information to him. Under

the circumstances of this case, employees of DSS involved in the

investigation of the child abuse allegation were agents of the

Commonwealth for purposes of Rule 3A:11(b)(2). Clearly,

statements made to these employees and their reports, memoranda,

and internal documents were not discoverable. Rule 3A:11(b)(2).

Moreover, under Rule 3A:12, the documents of DSS are not in the

possession "of a person not a party to the action."

Employees of Commonwealth agencies do not automatically

qualify as "agents of the Commonwealth" for purposes of Rule

3A:11. However, where an agency is involved in the investigation

or prosecution of a particular criminal case, agency employees

become agents of the Commonwealth for purposes of Rule 3A:11 and

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must be considered a party to the action for purposes of Rule

3A:12. 1 See 1991 Att'y Gen. Ann. Rep. 81-84.

Appellant contends that the court's denial of his request

for a subpoena duces tecum directed to DSS may have denied him

access to exculpatory evidence. The Commonwealth, however,

disclosed the victim's potentially exculpatory statement given to

Millie Campbell, a DSS employee. Appellant has not identified

other exculpatory evidence that the Commonwealth failed to

disclose.
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

(1994) (en banc) (citation omitted).

Moreover, although appellant alleges on appeal that the

trial court, at a minimum, should have reviewed the DSS records

in camera, we find no clear request in the record for such a

review. Thus, he has not preserved the argument for appeal, and

we will not consider it for the first time. Rule 5A:18.

Moreover, the record does not reflect any reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

Because the trial court did not err in its determination

that DSS employees were agents of the Commonwealth in this case,

and not subject to a subpoena duces tecum, the judgment of the

1
Where an agency is such a part of the prosecution, the
prosecutor will be charged with constructive knowledge of agency
information and Rule 3A:11 provisions will apply to the agency.
See Cox v. Commonwealth, 227 Va. 324, 329 n.4, 315 S.E.2d 228,
231 n.4 (1984).

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court is affirmed.
Affirmed.

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