Nelson v. Com.

• Decision Date: 02 December 2003
• Docket Number: Record No. 3022-02-1.
• Court: Virginia Court of Appeals
• Parties: John Byrd NELSON, v. COMMONWEALTH of Virginia.

589 S.E.2d 23

41 Va. App. 716

John Byrd NELSON, v. COMMONWEALTH of Virginia.

Record No. 3022-02-1.

Court of Appeals of Virginia, Chesapeake.

December 2, 2003.

James B. Covington, Norfolk, for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ANNUNZIATA, BUMGARDNER and FRANK, JJ.¹

FRANK, Judge.

John Byrd Nelson (appellant) appeals his convictions by a jury of taking indecent liberties with a child, in violation of Code § 18.2-370; sexual object penetration of a victim under the age of thirteen, in violation of Code § 18.2-67.2(A); and three counts of forcible sodomy, in violation of Code § 18.2-67.1(A). Appellant argues the trial court erred in (1) refusing him access to subpoenaed documents, (2) failing to excuse a juror during the trial, (3) failing to dismiss the forcible sodomy indictments for failure to state an offense, (4) denying his motion for a bill of particulars, and (5) refusing to consolidate the forcible sodomy indictments. For the reasons below, we affirm appellant's convictions.²

I. Sealing Subpoenaed Documents

Appellant was charged with committing sexual assault on a victim under the age of fourteen. Prior to trial, appellant requested a subpoena duces tecum for the medical records of Dr. Alan Rountree, a doctor who treated the victim after the incidents.³ Although the subpoena was issued, the trial court sealed the documents prior to their release to appellant and the Commonwealth. At the hearing on this subpoena, the court explained:

The Court, frankly, it reviewed a number of cases that dealt with this issue . . . and it thinks it would be highly prejudicial to the victim to release that information. I frankly don't believe that you can review the information and not tell your client. I think you have an ethical obligation to tell him and I don't think that that would be appropriate.

So what the Court's going to do is seal these records . . . .

But the Court looked at these records very carefully, studied the cases and determined it would not be appropriate to release them. The Court thought the others were material to your case.⁴ It did release those and it thought it was also exculpatory.

But I think the real test is whether it's material to your case. You have a right to it if it decides it is material. These records aren't material at all and the Court is not going to—you haven't convinced me otherwise.

Appellant argues Rule 3A:12(b) mandates "examination and review" of the subpoenaed documents "by the parties and counsel." He contends the rule requires a "determination regarding materiality be made at the time the subpoena duces tecum is requested." If the documents are material, appellant argues, then the trial court cannot refuse to release the items to the parties for their examination. We disagree.

Decisions involving discovery issues are within the discretion of the trial court, and appellate courts will not reverse those decisions "unless `the action taken was improvident and affected substantial rights.'" O'Brian v. Langley Sch., 256 Va. 547, 552, 507 S.E.2d 363, 366 (1998) (quoting Rakes v. Fulcher, 210 Va. 542, 546, 172 S.E.2d 751, 755 (1970)). See also Willard v. Moneta Bldg. Supply, Inc., 258 Va. 140, 153 n. 12, 515 S.E.2d 277, 286 n. 12 (1999)

. An appellant must show prejudice⁵ from the trial court's ruling before this Court will overturn the conviction. Gibbs v. Commonwealth, 16 Va. App. 697, 701, 432 S.E.2d 514, 516 (1993).

Rule 3A:12(b) addresses the "[p]roduction of [d]ocumentary [e]vidence" before a trial court. Initially, this rule explains the process for obtaining documents:

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 the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena. Such subpoena shall command either (1) that the individual to whom it is addressed shall appear in person and with the items described either before the court or the clerk or (2) that such individual shall deliver the items described to the clerk.

Although appellant argues the contrary, nothing in this rule requires that the trial court make a determination on the materiality of the requested items prior to issuance of a subpoena. In fact, the rule does not require any ruling by a judge, as the clerk also has the authority to issue a subpoena if a party has filed an appropriate affidavit and notice. A plain reading of the rule does not include a requirement that the trial court rule on materiality prior to the issuance of a subpoena. See Rasmussen v. Commonwealth, 31 Va.App. 233, 238, 522 S.E.2d 401, 403 (1999)

(noting courts prefer to use the plain meaning of words in statutes).

Appellant also contends that, once the requested items are produced, Rule 3A:12(b) requires that a trial court allow all the parties access to those items without limitation. He relies on the following language of the rule:

Any subpoenaed writings and objects, regardless by whom requested, shall be available for examination and review by all parties and counsel. Subpoenaed writings or objects shall be received by the clerk and shall not be open for examination and review except by the parties and counsel unless otherwise directed by the court.

Rule 3A:12(b) then provides:

Where subpoenaed writings and objects are of such nature or content that disclosure to other parties would be unduly prejudicial, the court, upon written motion and notice to all parties, may grant such relief as it deems appropriate, including limiting disclosure, removal and copying.

The Commonwealth argues the above provision permits the trial court to limit access to the subpoenaed items. We agree with the Commonwealth that trial courts are permitted to restrict the viewing of subpoenaed documents.

The provision of Rule 3A:12(b) that prohibits "examination and review except by the parties and counsel" is modified by the clause "unless otherwise directed by the court." This language plainly allows the court to either expand or limit the normal conditions for viewing the subpoenaed items, whether the examination is by the parties, counsel, or non-parties. See Green v. Commonwealth, 28 Va.App. 567, 569, 507 S.E.2d 627, 629 (1998)

(explaining that courts should consider the plain language of a statute when determining its meaning); Gilliam v. Commonwealth, 21 Va.App. 519, 522-23, 465 S.E.2d 592, 594 (1996).

Without judicial authority to limit review by the parties, items that are immaterial to the proceedings could be provided to the parties.⁶ To avoid allowing an opposing party access to items that are immaterial, a trial court must review the requested documents and determine whether they are material. Without issuing the subpoena to obtain those documents, a trial court would have no opportunity to review their contents and rule on their materiality. For example, in Gibbs, 16 Va.App. at 698-99, 432 S.E.2d at 515, a case cited by appellant, the trial court "reviewed the documents [produced by the bank's representative] in camera and ruled" on their materiality. See also N. Am. Mortgage Investors v. Pomponio, 219 Va. 914, 252 S.E.2d 345 (1979)

(remanding a case for the trial court to review the subpoenaed documents and determine if they were subject to a privilege). Clearly, the trial court can consider, after the production of the documents, whether the items are material or immaterial to the proceedings for which they were subpoenaed. See, e.g., NAACP, Inc. v. Comm. on Offenses Against the Admin. of Justice, 199 Va. 665, 101 S.E.2d 631, vacated on other grounds, 358 U.S. 40, 79 S.Ct. 24, 3 L.Ed.2d 46 (1958) (discussing a trial court's denial of a motion to quash subpoenas duces tecum after they were issued).

The following provision of Rule 3A:12(b), which allows the court to limit disclosure of items that are "unduly prejudicial" by means such as "limiting disclosure, removal and copying," makes sense only if it refers to the court's authority to limit the access of the parties in the case, as people who are not parties generally are not allowed access to any subpoenaed documents under Rule 3A:12(b).

Additionally, while appellant argues that "parties" in the provision allowing "examination and review" refers to the people directly involved in the legal action, he contends the same word, modified by "other," refers to all people who are not parties to the action. His definition of "parties" is contradictory. He defines "other parties" in the second paragraph of Rule 3A:12(b), which allows the courts to restrict access to "unduly prejudicial" subpoenaed documents, as "nonparties." However, the previous paragraph generally prohibits non-parties' access to subpoenaed documents, "unless otherwise directed by the court." Rule 3A:12(b). As non-parties are denied access to subpoenaed documents in the earlier paragraph, appellant's argument, that the later paragraph is designed only to give the court the authority to deny access to non-parties, makes the earlier portion of the rule irrelevant. As this Court avoids such contradictory and strained constructions of statutes, see Green, 28 Va. App. at 569,

507 S.E.2d at 629; Gilliam, 21 Va.App. at 522-23,

465 S.E.2d at 594, we also avoid such constructions of our Rules.

We also note appellant's argument would eliminate motions to quash, which are a third-party's only option to prevent disclosure of subpoenaed information, as third-parties do not receive notice of a subpoena until it is served on them. See Rule 3A:12(b) (requiring notice to the adverse party before issuance of a subpoena duces tecum, but not notice to the non-party). See, e.g., Kauffmann v. Commonwealth, 8 Va.App. 400, 408, 382 S.E.2d 279, 283 (1989)

(discussing a non-party's motion to quash...