Allen v. Com.

• Decision Date: 15 August 1995
• Docket Number: No. 2560-93-2,2560-93-2
• Citation: 20 Va.App. 630,460 S.E.2d 248
• Parties: Olan Conway ALLEN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 248

460 S.E.2d 248

20 Va.App. 630

Olan Conway ALLEN v. COMMONWEALTH of Virginia.

Record No. 2560-93-2.

Court of Appeals of Virginia Richmond.

August 15, 1995.

Michael T. Hemenway (George H. Dygert & Associates, on briefs), Charlottesville, for appellant.

Richard B. Smith, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and COLEMAN and ELDER, JJ.

OPINION

COLEMAN, Judge.

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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 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.

United States v. Ham, 58 F.3d 78, 82 (4th Cir. 1995) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (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, 91 S.Ct. 547, 556-57, 27 L.Ed.2d 543 (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, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (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, 110 S.Ct. 1925, 109 L.Ed.2d 288 (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, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Pugliese v. Commonwealth, 16 Va.App. 82, 428 S.E.2d 16 (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 83. See also United States v. Puleo, 817 F.2d 702, 705 (11th Cir.), cert. denied, 484 U.S. 978, 108 S.Ct. 491, 98 L.Ed.2d 489 (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, 94 S.Ct. 151, 38 L.Ed.2d 113 (1973)).

Although the trial court characterized its action in voiding the verdicts as a mistrial, the court was setting aside the verdicts. See Black's 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 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, 109 S.Ct. 1766, 104 L.Ed.2d 201 (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, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (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 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...