John Crescent Ndunguru v. Commonwealth of Virginia, 0855204

Defendant John Crescent Ndunguru owned Mercy Services, a long-term care provider that submitted DMAS-96 and UAI forms to obtain Medicaid payments; fraudulently procured roughly $2.7 million.
At bench trial defendant was convicted of five counts of making a false statement for Medicaid and five counts of obtaining money by false pretenses; sentenced to 20 years, 15 years suspended.
The trial court invoked the rule excluding witnesses; a Commonwealth investigator tasked with notifying late witnesses left unexpectedly, and a late-arriving Commonwealth witness, Alice George, entered and overheard part of prior witness Jerry St. Louis’s testimony identifying documentary exhibits.
George left when advised of the rule, later testified (called by defense) that she had heard only identification of one or two documents and was unsure whether that exposure would influence her testimony; she also testified about her role at Mercy and reporting fraud to the FBI.
The trial court held a hearing, found no evidence George’s testimony was adulterated by the overheard testimony, reserved ruling but ultimately let her testify; defense argued prejudice from the rule violation.
On appeal the Court of Appeals deferred to the trial court’s factual finding of no adulteration and held the trial court did not abuse its discretion in permitting George to testify; convictions were affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by allowing a Commonwealth witness (Alice George) to testify after she overheard part of another Commonwealth witness’s testimony following invocation of the rule on witnesses.	Commonwealth: Violation was unintentional; George heard only limited ID of exhibits and did not adulterate her testimony, so no prejudice.	Ndunguru: George’s exposure to St. Louis’s testimony risked shaping her testimony; the Commonwealth failed to show absence of prejudice.	Court: Trial court’s factual finding that George’s testimony was not adulterated is entitled to deference; no abuse of discretion in admitting her testimony; convictions affirmed.

United States v. Buchanan, 787 F.2d 477 (10th Cir. 1986) (factors for assessing prejudice from witness exposure include intent, substance of comments, and effect on testimony)
Huddleston v. Commonwealth, 191 Va. 400 (1950) (purpose of witness exclusion is to prevent shaping later testimony)
Bennett v. Commonwealth, 236 Va. 448 (1988) (exclusion rule aims to prevent testimony conformity; consider whether presence influenced testimony)
Jury v. Commonwealth, 10 Va. App. 718 (1990) (no abuse of discretion where no showing witness’s courtroom presence influenced testimony)
Wolfe v. Commonwealth, 265 Va. 193 (2003) (trial court has discretion whether to prohibit a witness who violated exclusion order from testifying)
Brickhouse v. Commonwealth, 208 Va. 533 (1968) (same; discretion to exclude witnesses)
Stone v. Commonwealth, 297 Va. 100 (2019) (appellate courts defer to trial court’s factual findings and view facts in light most favorable to prevailing party)
Landrum v. Chippenham and Johnston-Willis Hosps., Inc., 282 Va. 346 (2011) (standard for abuse of discretion review)