Nelson v. Commonwealth ( 2004 )

Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Compton, S.J.
JOHN BYRD NELSON OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 040028 November 5, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this criminal appeal, we have limited our review to
two issues: Whether the Court of Appeals of Virginia erred in
ruling that the trial court properly reviewed sensitive
medical records in camera and refused to allow examination of
the records by the defendant; and, whether the Court of
Appeals erred in ruling that the trial court correctly
declined to conduct a hearing regarding allegations of a
juror's possible bias.
Defendant John Byrd Nelson was found guilty in September
2002 by a jury in the Circuit Court of the City of Newport
News of the following felonies: three counts of forcible
sodomy, in violation of Code § 18.2-67.1(A)(1); one count of
taking indecent liberties with a child under the age of 14
years, in violation of Code § 18.2-370(A)(1); and one count of
object sexual penetration of a child less than 13 years of
age, in violation of Code § 18.2-67.2(A)(1).
When these offenses were committed on August 25, 2000,
the defendant was 69 years of age and the male victim was 12
years of age.
Confirming the jury's verdicts, the trial court sentenced
defendant to a total of 45 years in prison in October 2002
judgment orders, from which the defendant appealed. Upon
review, the Court of Appeals affirmed the convictions. Nelson
v. Commonwealth, 41 Va. App. 716, 589 S.E.2d 23 (2003). We
awarded defendant this appeal, limited to consideration of the
foregoing issues.
First, the defendant contends that the "Court of Appeals
erred in affirming the trial court's refusal to make
subpoenaed records available to the defense." The issue arose
in the following manner.
Prior to trial, the defendant, by his attorney, requested
that a subpoena duces tecum under Rule 3A:12(b) be issued for
the production of all records in the possession of Dr. Alan
Rountree, a nonparty, pertaining to the mental and physical
examination and treatment of the victim. The request, which
asked that the records be produced before the clerk of court,
stated that the documents "are relevant and material to the
proceedings."
In an affidavit filed with the request, counsel asserted
that the victim "suffers from a mental condition which causes
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him to have visual and auditory hallucinations," for which Dr.
Rountree, a Hampton physician, had treated him following the
offenses. The affidavit also asserted that access to the
medical records was "necessary for potential impeachment at
trial, a determination of [the victim's] competence to testify
as a witness, and otherwise in the defense of this case."
Following production of the records, the court reviewed
them in camera at the request of the prosecutor, and ordered
them sealed. The defendant then moved for "the opportunity to
review those records," relying on the provisions of Rule
3A:12(b).
During a hearing on the defendant's motion, the trial
judge denied it. Stating that she had "looked at these
records very carefully," the judge said "it would be highly
prejudicial to the victim to release that information." She
noted that defense counsel would have "an ethical obligation"
to reveal the contents to his client, which, she said, would
not be "appropriate." Concluding, the court said the records
were not "material at all" to defendant's case. The sealed
documents are part of the record on appeal.
Rule 3A:12(b) deals, in part, with a subpoena duces tecum
for production of documentary evidence before a circuit court.
As pertinent to this case, the subparagraph provides:
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"Upon notice to the adverse party and on
affidavit by the party applying for the subpoena
that the requested writings . . . 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 . . . described in the
subpoena. . . .
"Any subpoenaed writings . . . , regardless by
whom requested, shall be available for examination
and review by all parties and counsel. Subpoenaed
writings . . . 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. . . .
"Where subpoenaed writings . . . 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 defendant focuses on the Rule's language in the
second paragraph quoted above, while ignoring the
language of the third paragraph. He emphasizes the
provision that the subpoenaed writings "shall be
available for examination and review by all parties and
counsel," and the provision that the records "shall not
be open for examination and review except by the parties
and counsel." This language, he says, gives the parties
and counsel "an absolute right to review and examine
records produced." According to defendant, the purpose
of the Rule's next clause in that paragraph, "unless
otherwise directed by the court," is to specify that the
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records are not to be open to the public unless otherwise
directed by the trial court.
The defendant argues that the trial court
"apparently determined" that the Rountree records lacked
evidentiary value to the defense and "ruled that they
were, therefore, not material." He opines that the trial
judge acceded to the prosecutor's "request for sealing
subpoenaed records and in camera inspection based upon
her view that the victim's privacy concerns were more
important than the preparation of Mr. Nelson's defense."
Nevertheless, the defendant contends, "not only Mr.
Nelson's attorney, but John Nelson himself was entitled
to review and examine the records of Dr. Rountree."
According to the defendant, a victim's privacy
concerns are logically addressed by the showing of
materiality at the time of the trial court's threshold
decision to grant or deny issuance of the subpoena, and
by the specific provisions of the second paragraph which,
in defendant's words, "strictly limit any dissemination
of information produced other than to the parties and
counsel."
Defendant argues that the Rountree records were
material to his defense. He says that another physician,
who treated the victim prior to these offenses and who
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testified at defendant's first trial, which ended in a
hung jury, changed his testimony during the instant,
second trial. That physician, according to the
defendant, revised his medical opinion based upon
information developed during the period of Rountree's
treatment of the victim, making those records vital to
the defense.
Therefore, defendant contends, the trial court erred
in refusing his motion to examine the records, and the
Court of Appeals erred in failing to reverse the trial
court. We disagree.
The Rule's language in question is clear and
unambiguous. In the second quoted paragraph of
subsection (b), subpoenaed writings are "available" for
examination and review by all parties to the case and
counsel. And, consistent with that provision, the
writings "shall not be open for examination and review
except by the parties and counsel." However, if
"otherwise directed by the court," persons who are not
parties to the case may be entitled to examine and review
the documents, in the trial court's discretion. In other
words, as the Court of Appeals noted, that provision
generally prohibits nonparties' "access to subpoenaed
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documents, 'unless otherwise directed by the court.' "
Nelson, 41 Va. App. at 727, 598 S.E.2d at 28.
The Rule's third quoted paragraph, however, applies
under the circumstances of this case. In plain language,
the paragraph means that when subpoenaed documents "are
of such nature or content that disclosure to other
parties would be unduly prejudicial," the trial court, in
the exercise of its discretion "as it deems appropriate,"
may limit disclosure. The trial court's power to limit
applies to the persons directly involved in the case, and
not just nonparties as the defendant contends.
Manifestly, as the Court of Appeals said, the
foregoing provision "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 the
second paragraph. Id. at 726, 598 S.E.2d at 28.
In the exercise of discretion to limit or deny
access, a trial court must determine whether the
documents not disclosed are material to the case of the
party moving for access. Contrary to the defendant's
argument, a threshold determination of materiality is not
made at the time the subpoena duces tecum is issued.
Indeed, when a party requests issuance of such a
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subpoena, the trial court is not aware of the contents of
the subpoenaed writings. As the Attorney General argues,
"the threshold showing of materiality necessary for the
issuance of the subpoena does not automatically translate
into the materiality that compels a court to turn the
documents over to the requesting party."
In the present case, as requested by the Attorney
General (but not the defendant), we have examined the
sealed documents. We agree with the trial court and the
Court of Appeals that they are not material to the
defendant's case and that he has not been prejudiced by
their non-disclosure. See id. at 728-29, 589 S.E.2d at
29.
The second issue we shall address relates to
possible juror bias. During the second day of
defendant's trial, the prosecutor reported to the judge
that when "court was over yesterday," he had received a
voice mail message from the foster mother of the victim.
The prosecutor represented that she said she knew one of
the jurors who was her "direct supervisor" at the foster
mother's place of employment "over two years ago" and
before the victim "came to live with her."
The foster mother told the prosecutor that "at no
time" did the victim "ever meet" or "come in contact"
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with the juror, and that the juror does not know the
victim. She stated to the prosecutor that she saw the
juror "in the courtroom yesterday," and that the two
"made eye contact and smiled." At that time, the foster
mother said, the victim was not sitting with her, but was
sitting with his father and stepmother.
The foster mother told the prosecutor that she
"doesn't even believe [the juror is] aware of any
relationship between her" and the victim. The prosecutor
related to the court: "She's not a witness in this case
but she was concerned that it might mean something." The
prosecutor reminded the court that during voir dire, when
the victim "stood up with the other witnesses, all the
jurors indicated that they did not know any of the
witnesses."
Following the prosecutor's report, defendant's
attorney stated: "I think the Court should inquire of
the juror about the matter;" later, counsel moved for a
mistrial. The trial court denied the request and the
motion.
On appeal, defendant "asserts that under the facts
of this case he was entitled to have the Court make
inquiry of the juror." He argues that the "Court of
Appeals erred in affirming the trial court's failure to
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inquire or otherwise act with respect [to] the
qualifications of a juror known personally by the foster
mother of the alleged victim, thus depriving the
defendant of his right to an unbiased and impartial
jury." We disagree.
We concur with the Court of Appeals' view that the
defendant's allegation of possible juror bias is
supported only by a "series of speculative links:" the
possible recognition by the juror of the foster mother,
which possibly could lead to an understanding that she
was the victim's foster parent, which could have caused
the juror to recall possibly positive impressions of the
foster mother from a past working relationship, and those
impressions could have possibly biased the juror against
the defendant, such that the juror would "ignore the
trial court's instructions to evaluate the evidence and
apply the law impartially." Nelson, 41 Va. App. at 730-
31, 589 S.E.2d at 30.
In sum, the alleged connection between the foster
mother and the juror was too tenuous to require the court
to conduct a hearing mid-trial. There was no abuse of
discretion by the trial court, and the Court of Appeals
correctly so ruled.
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Consequently, the judgment of the Court of Appeals
will be
Affirmed.
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