Tommy L. Harmon, Jr. v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Beales and Senior Judge Bumgardner
Argued at Alexandria, Virginia
TOMMY L. HARMON, JR.
MEMORANDUM OPINION ∗ BY
v. Record No. 0694-11-4 JUDGE RUDOLPH BUMGARDNER, III
APRIL 10, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
Dawn M. Butorac, Deputy Public Defender, for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Tommy L. Harmon, Jr. appeals his conviction of taking indecent liberties with a minor,
Code § 18.2-370. He contends the trial court erred in quashing subpoenas duces tecum for the
victim’s mental health records. The defendant also maintains the trial court failed to consider
mitigating evidence when determining sentence. Finding no error, we affirm.
The defendant pled guilty to taking indecent liberties with the fourteen-year-old victim.
Before the sentencing hearing, he requested subpoenas duces tecum for the victim’s mental
health treatment records. The Commonwealth moved to quash the subpoenas because the
information sought was not material to punishment.
The defendant maintained the Commonwealth’s attorney had no standing to file the
motion to quash. He maintained the Commonwealth’s attorney, by opposing the subpoena of the
victim’s medical records, was representing the victim, a private citizen, and no statute authorized
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
her to represent individuals. The trial court rejected the defendant’s argument that the
Commonwealth had no standing to move to quash the subpoenas.
In filing a motion to quash, the Commonwealth’s attorney was performing an elementary
part of her duties during the trial of felony indictments. The defense had moved the trial court to
exercise its discretionary power to require the production of documents material to the trial of the
indictment. As with any request for the exercise of judicial discretion, the court is entitled to
consider both the request and the opposing party’s objection to it. The Commonwealth does not
undertake the representation of the person about whom discovery is sought simply because the
Commonwealth’s interest in opposing disclosure comports with those of a victim or a witness.
Rule 3A:12(b) 1 outlines the criminal procedure for obtaining a subpoena duces tecum.
While the criminal rule does not specify a procedure for raising an objection as found in the
related civil rule, Rule 4:9A(c)(3), 2 the propriety of such a procedure is apparent.
1
Rule 3A:12(b) provides:
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. . . .
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. . . .
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.
2
Rule 4:9A(c)(3) specifically provides that the trial court may quash or modify a
subpoena “upon written motion promptly made by the person so required to produce, or by the
party against whom such production is sought[.]”
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The issuance of the subpoena is discretionary, “the judge or clerk may issue.” Rule
3A:12(b) (emphasis added). The applicant must give notice of the request to the adverse party.
See id. All parties and counsel are entitled to examine and review the writing or objects, but the
court on motion may limit disclosure. See id. There is no reason to give notice of a request for
what is a discretionary grant or to anticipate balancing competing views on the extent of the
disclosure of materials obtained unless the parties receiving notice are entitled to present their
views and attempt to influence the decision made. Indeed, Nelson v. Commonwealth, 41
Va. App. 716, 727, 589 S.E.2d 23, 28 (2003), aff’d, 268 Va. 665, 604 S.E.2d 76 (2004), suggests
that a purpose of the notice to an adverse party is to permit that party to move to quash a
subpoena.
We find no basis to conclude that the Commonwealth lacked authority to move to quash
the defendant’s requests for subpoenas duces tecum. The Commonwealth in doing so was acting
in its role as the attorney for the Commonwealth not as an attorney for a private citizen. Though
the Commonwealth’s attorney had specific responsibilities and duties to victims and witnesses of
crimes, see Code § 19.2-11.01, the standing to move to quash the subpoenas duces tecum
requested by the defendant was part of the basic duties of that office: “the duty of prosecuting all
warrants, indictments or informations charging a felony.” Code § 15.2-1627. The trial court
correctly ruled that the Commonwealth had standing to file a motion to quash.
The defendant next argues that the trial court erred in granting the Commonwealth’s
motion to quash. “In a criminal proceeding, either the defendant or the Commonwealth may
apply for a subpoena to obtain writings and objects that are material to the proceedings and in the
possession of a third party.” Gibbs v. Commonwealth, 16 Va. App. 697, 699, 432 S.E.2d 514,
515 (1993). “When a defendant seeks disclosure of evidence, the standard to be applied in
determining its materiality is whether ‘a substantial basis for claiming materiality exists.’” Cox
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v. Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 231 (1984) (quoting United States v.
Agurs, 427 U.S. 97, 106 (1976)). However, “[a] subpoena duces tecum should not be used when
it is not intended to produce evidentiary materials but is intended as a ‘fishing expedition’ in the
hope of uncovering information material to the defendant’s case.” Farish v. Commonwealth, 2
Va. App. 627, 630, 346 S.E.2d 736, 738 (1986) (citing Bowman Dairy Co. v. United States, 341
U.S. 214, 221 (1951)).
“[W]e review a trial court’s decision regarding a motion to quash the issuance of a
subpoena duces tecum ‘under an abuse of discretion standard.’” Schwartz v. Commonwealth, 45
Va. App. 407, 450, 611 S.E.2d 631, 652 (2005) (quoting America Online, Inc. v. Anonymous
Publicly Traded Co., 261 Va. 350, 359, 542 S.E.2d 377, 382 (2001)). Moreover, a “trial court’s
refusal to issue a subpoena duces tecum . . . is not reversible error absent a showing of
prejudice.” Gibbs, 16 Va. App. at 701, 432 S.E.2d at 516.
Initially, the defendant anticipated the Commonwealth would present at the sentencing
hearing medical evidence that the victim suffered Post Traumatic Stress Disorder (PTSD)
because of the crime against her. The mother’s letter attached to the pre-sentence report had
recounted medical opinions she received about the impact the crime had on her daughter. The
defendant wanted the records to “investigate” the victim’s mental health condition because he
did not feel his acts could have caused PTSD.
The trial court granted the motion to quash because the Commonwealth was only calling
the mother to testify about the impact of the crime on the victim. The Commonwealth was not
calling for any medical evidence. The trial court stated that it would reconsider the ruling and
permit the defendant to raise the issue again if it found that the defendant did not have a
sufficient basis upon which to cross-examine the victim’s mother.
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At the sentencing hearing, the mother testified about the changes that she observed in the
victim’s behavior, and the residual effects on their family. No medical evidence was presented
about the victim’s condition. Cross-examination revealed the victim had experienced both
developmental and mental health issues before the incident. The defendant did not then renew
his request for the mental health records or claim he was unable to present his defense.
The defendant failed to demonstrate that the records he sought by subpoena were material
to the proceedings of which he was convicted and later sentenced. The defendant sought the
records to enable him to demonstrate that the victim’s mental status at the time of sentencing was
not totally caused by his crime against her. The evidence at sentencing did not address the
victim’s mental status but only her conduct and behavior as observed and recounted by her
mother. The mental condition of the victim never became an issue; it was not argued, nor was it
a factor, in fixing sentence. The records sought never became material. Indeed, the defendant
makes no showing of prejudice. Thus, the trial court did not abuse its discretion in quashing the
subpoena.
Finally, the defendant maintains the trial court only considered the gravity of the offense
when determining sentence and disregarded his mitigating evidence. He contends he is entitled
to a new sentencing hearing.
“It is well settled that when the maximum punishment is prescribed by statute, ‘and the
sentence [imposed] does not exceed that maximum, the sentence will not be overturned as being
an abuse of discretion.’” Valentine v. Commonwealth, 18 Va. App. 334, 339, 443 S.E.2d 445,
448 (1994) (quoting Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977)).
Furthermore, the sentencing guidelines “are not binding on the trial judge; rather, the guidelines
are merely a ‘tool’ to assist the judge in fixing an appropriate punishment.” Belcher v.
Commonwealth, 17 Va. App. 44, 45, 435 S.E.2d 160, 161 (1993) (citation omitted). A judge’s
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failure to follow the sentencing guidelines “shall not be reviewable on appeal or the basis of any
other post-conviction relief.” Code § 19.2-298.01(F). See Hunt v. Commonwealth, 25 Va. App.
395, 405, 488 S.E.2d 672, 677 (1997).
Before passing sentence, the trial court emphasized the seriousness of the offense
committed. It specifically addressed two of the arguments made by the defense in mitigation of
the offense: the brevity of the incident and the victim being almost fifteen years old. The trial
court explained that it did not feel either of those claims undermined the seriousness of the
criminal acts committed against the victim. It also gave reasons for exceeding the sentencing
guidelines: “gravity of the offense” and “failure to truly accept responsibility -- essentially
blames victim for his own misconduct.”
Contrary to the defendant’s contention, the record does not reflect the trial court refused
to consider any of the mitigating facts or circumstances presented on his behalf. The sentence
imposed by the trial court was within the range set by the legislature. See Code §§ 18.2-10
and 18.2-370. We find the trial court carefully exercised it discretion when sentencing the
defendant. Accordingly, we affirm.
Affirmed.
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