Kelly Anne Dara v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
KELLY ANNE DARA
MEMORANDUM OPINION * BY
v. Record No. 2795-95-1 JUDGE NELSON T. OVERTON
FEBRUARY 11, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Thomas B. Shuttleworth (Lawrence H. Woodward,
Jr.; Beverly A. Rebar; Shuttleworth, Ruloff &
Giordano, P.C., on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Kelly Anne Dara was convicted by a jury of first-degree
murder, conspiracy to commit robbery, and attempted robbery. She
appeals, contending that (1) the Commonwealth's failure to
produce allegedly exculpatory evidence in the juvenile court
denied her a proper transfer hearing, and (2) that the
Commonwealth's nolle prosequi of the indictment in the circuit
court required a new transfer hearing. We disagree with both of
these contentions, and we affirm the convictions.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, no recitation of the facts is necessary.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The evidence complained of by Dara consists of a statement
given to the police made by Josh Johnson, the co-conspirator who
actually committed the killing. His statement claims that Dara
was not present when he actually stabbed and killed the victim
and that Dara did not want to kill the victim. 1 Johnson's
statement was in the possession of the Commonwealth at the time
of the transfer hearing, but was not disclosed to the defense,
despite a discovery order.
Assuming for the purposes of this decision that the
statement was exculpatory and should have been disclosed prior to
the transfer hearing, the information contained was not material
to the transfer hearing. Independent evidence supported the
juvenile court's finding of probable cause for the conspiracy to
commit robbery and the attempted robbery. The statement does not
contradict or discredit these findings. Because the victim was
killed while defendant was engaged in the felony of attempted
robbery, probable cause need not be found that Dara intended to
kill to satisfy a charge for first-degree (felony) murder. See
Haskell v. Commonwealth, 218 Va. 1033, 1044, 243 S.E.2d 477, 483
(1978). Therefore, Johnson's statement would not alter the
ultimate finding of probable cause on any of the charges at
issue.
1
The statement also alleges that Dara helped plan the
intended robbery of the victim, however.
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Nor would Johnson's statement affect the transfer to circuit
court. Dara was transferred under Code § 16.1-269.1(B). Under
that subsection, the court is not required to consider the
factors under Code § 16.1-269.1(A)(4) if the offender is fourteen
or older and charged with an unclassified felony violation of
Chapter 4 of Title 18.2 punishable by life imprisonment. Dara
was seventeen at the time of the offense and charged with
first-degree murder, an offense punishable by life imprisonment.
She could thus be transferred upon a finding of probable cause
without considering other factors.
Dara's second issue on appeal is without merit. A new
transfer hearing is not required after the Commonwealth enters a
nolle prosequi on the indictments in circuit court.
Although a nolle prosequi generally discontinues the
prosecution as though the indictment had never existed, Burfoot
v. Commonwealth, 23 Va. App. 38, 44, 473 S.E.2d 724, 727 (1996),
the General Assembly has statutorily modified this mechanism
within the juvenile justice framework. The applicable Code
section, amended in 1994, now provides that
[t]he circuit court order advising the
attorney for the Commonwealth that he may
seek an indictment shall divest the juvenile
court of its jurisdiction over the case as
well as the juvenile court's jurisdiction
over any other allegations of delinquency
arising from the same act, transaction or
scheme giving rise to the charge for which
the juvenile has been transferred.
Code § 16.1-269.6(C) (emphasis added). This Court in Burfoot
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recognized the new change in the statute, stating that
under the new statute, the juvenile and
domestic relations district court loses
jurisdiction for all time over a juvenile
defendant when the Commonwealth is authorized
by the circuit court to seek an indictment.
Thus, if the Commonwealth enters a nolle
prosequi of that indictment, the circuit
court retains jurisdiction over the juvenile.
Burfoot, 23 Va. App. at 43 n.2, 473 S.E.2d at 727 n.2 (emphasis
added).
The nolle prosequi in the instant case did not have the same
effect as it would have if decided under the old statute. Under
the new statute, the circuit court retains jurisdiction and the
Commonwealth may, as it did, seek new indictments without having
to return to the juvenile court.
For the reasons stated, we affirm the convictions.
Affirmed.
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