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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