Olan Conway Allen v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
OLAN CONWAY ALLEN
v. 	Record No. 2560-93-2 	OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA 	AUGUST 15, 1995
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Michael T. Hemenway (George H. Dygert &
Associates, on briefs), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.
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 (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

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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 erroneously1
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
1 Insofar as the record reflects, at the post-trial motion to
set aside the verdicts, the trial judge, Commonwealth's attorney,
and defense counsel believed, in good faith, that because the
juror was not qualified, the verdicts were invalid and had to be
set aside. 	However, the Attorney General concedes on appeal that
based upon the provisions of Code § 8.01-352(b) and the holding in
Thurman v. Commonwealth, 107 Va. 912, 915, 60 S.E. 99, 100 (1908),
the irregularity did not invalidate the verdicts or justify the
trial court in setting them aside.

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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.

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United Stated v. Ham, 1995 WL 369605,*3 (4th Cir. June 20, 1995)
(quoting Green v. United States, 355 U.S. 184, 187-88 (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 (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
(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 (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
(1980). 	Pugliese v. Commonwealth, 16 Va. App. 82, 428 S.E.2d 16

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(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 *4. 	See also
United States v. Puleo, 817 F.2d 702, 705 (11th Cir.), cert.
denied, 489 U.S. 978 (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
(1973)).
Although the trial court characterized its action in voiding
the verdicts as a mistrial, the court was setting aside the
verdicts. 	See Blacks 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

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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 (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 (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

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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 and been able to show at trial that the investigator was
uncertain whether the photographic lineup was conducted in August
or September, we cannot say that it probably would have produced
a different outcome or result in the trial. 	See United States v.
Bagley, 473 U.S. 667, 682 (1985). 	This type of uncertainty or

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discrepancy in evidence frequently occurs and is elicited at
trial during cross-examination. 	See Epperly v. Booker, 997 F.2d
1, 9 (4th Cir.), cert. denied, 114 S. Ct. 611 (1993) (stating
that a prosecutor cannot be deemed to have wrongly suppressed
exculpatory evidence when it was available from other sources
such as cross-examination). 	On the facts of this case, the
Commonwealth was not required to determine the degree to which
the investigator was certain of the date on which he conducted
the photographic lineup and was not required to provide such
information under its duty to disclose exculpatory evidence.
The appellant also contends that the Commonwealth withheld
evidence of an interview with the appellant's cousin, Betty
Sheffey, in which Sheffey told the investigators that the
appellant was not involved in the crime. 	Sheffey's statement was
an unfounded conclusion and was not exculpatory. 	She gave no
facts or information to the officers that she knew of the
appellant's whereabouts or why she believed him not to have been
involved. 	An unfounded belief, such as the one given by Sheffey,
is not exculpatory evidence which the prosecution is required to
disclose.
III. 	JURY INSTRUCTIONS
The appellant contends that the trial court improperly
instructed the jury by omitting an essential element in the
breaking and entering instruction. 	Instruction No. 5 stated:
OLAN C. ALLEN is charged with the crime of
breaking and entering. 	The Commonwealth must
prove beyond a reasonable doubt each of the

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following elements of that crime:
(1) 	That the dwelling house of Henry and
Ruth Chiles was broken into and entered
without permission; and
(2) 	That the breaking and entering was done
in the daytime; and
(3) 	That it was done with the intent to
commit larceny.
If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense as charged, then you shall find OLAN
C. ALLEN guilty.
The appellant argues that the instruction is fatally flawed
because it does not tell the jury that they were required to find
beyond a reasonable doubt that Olan Conway Allen, the defendant,
was the person who broke and entered the Chiles' home. 	He
contends that the instruction allowed the jury to find him guilty
if they found that a breaking and entering occurred without
finding that he was the criminal agent.
The appellant acknowledges that he did not object to the
giving of Instruction No. 5 in this form. 	Generally, Rule 5A:18,
requiring a contemporaneous objection, would bar the appellant
from raising the issue on appeal. 	He contends, however, that in
order to avoid a miscarriage of justice, we must consider the
trial court's failure to instruct the jury on the fundamental
requirement that the Commonwealth prove that the defendant was
the criminal agent.
"[T]o avail himself of the [ends of justice exception] the

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defendant had to affirmatively show that 'a miscarriage of
justice [has] occurred, not . . . that a miscarriage might have
occurred' [and it] requires that the error be clear, substantial
and material." 	Brown v. Commonwealth, 8 Va. App. 126, 132, 380
S.E.2d 8, 11 (1989) (quoting Mounce v. Commonwealth, 4 Va. App.
433, 436, 357 S.E.2d 742, 744 (1987)).
While the ends of justice exception is narrow, Mounce, 4 Va.
App. at 436, 357 S.E.2d at 744, the exception "requires
correction of an instruction which allows a jury to convict a
defendant without proof of an element of a crime." 	Campbell v.
Commonwealth, 14 Va. App. 988, 992, 421 S.E.2d 652, 654 (1992),
aff'd, 246 Va. 174, 431 S.E.2d 648 (1993). 	One may not be
convicted for conduct which is not criminal. 	Jimenez v.
Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). 	The
overriding purpose of jury instructions is to "inform the jury as
to the law." 	Cooper v. Commonwealth, 2 Va. App. 497, 500, 345
S.E.2d 775, 777 (1986) (quoting 75 Am. Jur. 2d Trial § 573
(1974)). 	When informing the jury, the trial court must be
careful to do so in such a manner as to not mislead the jury.
Id. 	The trial court has an affirmative duty to properly
instruct. 	Jimenez, 241 Va. at 250, 402 S.E.2d at 681.
Even though we accept the appellant's contention that
Instruction No. 5 did not expressly inform the jury that in order
to find the defendant guilty, they must find that he was the
person who broke and entered the Chiles' home, that requirement

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of proof was clearly implicit in the trial process from
indictment through arraignment and verdict. 	Also, it was part of
the other instructions, including the instruction on larceny.
Thus, on this record, Instruction No. 5 as given could not have
misled the jury or allowed them to find the defendant guilty
without finding that he was the criminal agent. 	The evidence
proved beyond a reasonable doubt that a crime had been committed
and that the defendant committed it. 	The appellant could not
have been convicted for conduct that was not criminal. 	Moreover,
because the jury could not reasonably have applied Instruction
No. 5 absent proof of criminal agency, no miscarriage of justice
occurred. 	Because no miscarriage of justice could have resulted
from the failure to have stated expressly the obvious requirement
in the jury instruction, appellate review of the issue is barred
by Rule 5A:18.
Accordingly, we affirm the convictions.
Affirmed.