This matter is before the Court on the defendant’s Motion for a Bill of Particulars and his Motion for Entry of an Order Regarding Analysis of Evidence. The parties appeared before the Court on Monday August 16,2004, for argument on these motions, and the Court requested additional briefing, which the Court has now received and reviewed. The factual and procedural background of these motions, discussion of the issues, and conclusion are set forth below.
The defendant, Wallace D. Waddler, was indicted by a Grand Jury in the City of Portsmouth on December 4,2003, for one count of capital murder and one count of use of a firearm in the commission of a felony. As to the capital murder count, the Commonwealth presented the Grand Jury with an indictment charging in count one that “Wallace Waddler ... [o]n or about Thursday, June 26,2003, did willfully, deliberately, and with premeditation, did [sic] kill two or more people, namely Late Clark and Keith Copeland, as part of the same act or transaction, in violation of §§ 18.2-31,18.2-10ofthe Code of Virginia (1950) as amended.” Count two of the indictment charges that “Wallace Waddler ... [o]n or about Thursday, June 26, 2003, did use, attempt to use, or display in a threatening manner, a firearm, while committing or attempting to commit murder, in violation of § 18.2-53.1 of the Code of Virginia (1950) as amended.” The murder statute under which defendant was indicted provides that “[t]he following offenses shall constitute capital murder, punishable as a Class 1 felony: The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction.” Va. Code § 18.2-31(7); see, e.g., Morris v. Commonwealth,
Because the Commonwealth is seeking the penalty of death for the capital murder charge, Va. Code § 19.2-264.4(C) is implicated. That statute provides that “[t]he penalty of death shall not be imposed unless the Commonwealth shall prove beyond a reasonable doubt that there is a probability based upon evidence of the prior histoiy of the defendant or of the circumstances surrounding the commission of the offense of which he is accused that he would commit criminal acts of violence that would constitute a continuing serious threat to society, or that his conduct in committing the offense was outrageously or wantonly vile, horrible, or inhuman, in that it involved torture, depravity of mind, or aggravated battery to the victim.” Va. Code § 19.2-264.4(C); see also Va. Code § 19.2-264.2.
On April 5,2004, the Court entered an agreed “Order for Discovery, Bill of Particulars, and Provision of Exculpatory Evidence,” presented pursuant to Rule 3A:11 of the Rules of the Supreme Court of Virginia. Pursuant to this Order requested by both parties, the Commonwealth was ordered to provide, among other things, “[a]ll information of whatever form, source, or nature which tends to exculpate the Defendant or reduce the penalty which he or she might suffer should he or she be convicted of this cause, through an indication of his or her innocence or through potential impeachment of any prosecution witness, be it by inconsistent statements or otherwise.” Para. 6. The Order further requires the Commonwealth to provide the defense with an
The parties have exchanged evidence and information with each other pursuant to the Court’s April 5, 2004, Order. However, the defendant claims entitlement to additional information. The defendant filed his motion for a bill of particulars contending that, if the Commonwealth intends to rely on “vileness” as a justification for seeking the death penalty, then he is entitled to know which of the three components of the statutory “vileness” justification, torture, depravity of mind, aggravated battery, the Commonwealth will rely upon. The defendant also filed a motion requesting that the Court order the Commonwealth to send certain items recovered at the crime scene to be tested for the presence of illegal substances. The Commonwealth opposes each of these motions.
II. Discussion
The Court will first address the defendant’s Motion for Bill of Particulars and then address the defendant’s Motion for Entry of an Order Regarding Analysis of Evidence. However, before doing so, the Court will review some history regarding the exchange of information between the prosecution and the defense in criminal cases since discussion of these issues requires an understanding of the right to such information and the distinctions between discovery, requests for a bill of particulars, and production of exculpatory evidence.
As Professor Ronald Bacigal notes in his text on Virginia criminal procedure, there was no common law right to discovery. Ronald Bacigal, Virginia Practice Series, Criminal Procedure, § 14:2(2004); Rex v. Holland, 4 T.R. 691, 100 Eng. Rep. 1248 (1792). Before the Virginia Supreme Court adopted a rule providing for discovery, the accused in Virginia had no right to examine the evidence against him prior to trial. See Hackman v. Commonwealth,
A. Motion for Bill of Particulars
In his-April 16, 2004, “Motion for Bill of Particulars,” the defendant, pursuant to Va. Code § 19.2-266.2, and pursuant to Peterson v. Commonwealth,
1. The Statute and Peterson
Our analysis begins with the Statute pursuant to which the motion is filed. Va. Code § 19.2-266.2 provides that defense motions or objections seeking suppression of evidence as violative of search and seizure or self-incrimination protections, or motions or objections seeking dismissal of an indictment on the ground that the statute on which it was based is unconstitutional, shall be raised in writing before trial and provides deadlines for such motions or
The Court also recognizes that the defendant brings his motion pursuant to Peterson,
2. Standard for Consideration ofEntitlement Contention
In Sims v. Commonwealth,
The Virginia Supreme Court noted in Swisher v. Commonwealth, 256 Va. 471, 480,
The trial court did not abuse its discretion in denying Swisher’s motion. The indictment adequately informed Swisher of the charged offenses, and we are of opinion Swisher did not wish to use the bill to challenge the sufficiency of the indictment, but, as he had admitted in his brief, he desired the bill of particulars for other reasons.
Id. at 480-81,
As noted at the August 16,2004, hearing on this matter, there are reported cases originating from other Virginia jurisdictions where the Commonwealth has agreed to provide the defendant with the components of the “vileness” aggravating factor upon which it intends to rely. In Walker v. Commonwealth,
The defendant also argues that the U.S. Supreme Court’s holding in Godfrey v. Georgia,
This Court also notes an additional distinction between the Virginia statute and the statute at issue in Godfrey. In Godfrey, the Court noted that its decision rested solely upon consideration of the vileness factor contained in the statute. It went on to say that “[accordingly, we intimate no view as to whether or not the petitioner might constitutionally have received the same sentences on some other basis. Georgia does not, as do some States, make multiple murders an aggravating circumstance, as such.” Id. Virginia’s statute does in fact make multiple murders an aggravating circumstance, as noted above. For these reasons, this Court finds that Godfrey is not controlling here.
3. Application of Standard to This Case
With this background in mind, the Couit must determine whether the indictment and the other information provided and available to the defendant gives him sufficient notice of the “nature and character” of the accusation so that he can make his constitutional defense or whether it in effect requests information beyond the scope of his entitlement and seeks impermissible discoveiy. See Bailey v. Commonwealth, 259 Va. 723, 737,
In considering whether the indictment provides the defendant with the nature and character of the accusation, the Court notes that the indictment in this case provides the defendant with the capital murder offense charged, the date of the offense, and the names of the victims alleged. In addition to the indictment, as discussed at the August 16,2004, hearing, the Commonwealth has provided substantial information to defense counsel.
At the August 16,2004, hearing in this matter, counsel advised the Court of the information that had already been exchanged. The court file in this case contains the Commonwealth’s June 1, 2004, discovery responses, as well as the Commonwealth’s responses to the Order entered by the Court on April 5, 2004, requiring production of exculpatory information. Among other things, this information includes: (1) the date and time of the offenses alleged in the indictment, (2) the address where the crimes are alleged to have occurred, (3)
With all of this information in hand, there is no doubt that the defendant, at this stage of the proceedings, understands the “nature and the character” of the accusation such that ¿proper constitutional defense may be presented. The indictment, particularly in light of the additional information provided and noted above, adequately informs Waddler of the charged offense. Swisher,
B. Motion to Submit Certain Items for Forensic Laboratory Drug Testing
In his August 16,2004, Motion for Entry of an Order Regarding Analysis of Evidence, the defendant contends that several items of evidence found at the scene of the crime should be tested for the possible presence of narcotics. In his Memorandum in Support, the defendant frames the question as one involving the obligation of the Commonwealth to produce exculpatory evidence and contends that the failure of the Commonwealth to conduct such tests rises to the level of a violation of the defendant’s constitutional due process right to have exculpatory evidence produced to him. The items at issue are as follows: Item Number Four, one smoking device; ItemNumber Six, one playing card; Item Number Fifteen, one smoking device and one piece of plastic; Item Number Nineteen, one Newport cigarette box top and matches device; and Item Number Thirty-five, one smoking device.
1. General Parameters of Exculpatory Evidence Obligation
As noted above, beyond the accused’ s discovery rights under Rule 3 A: 11 of the Rules of the Virginia Supreme Court, the defendant has a constitutional due process right to the discovery of certain exculpatory evidence. Bacigal, supra, at § 14:4. This right was recognized in Brady,
The first question normally asked in defining the due process right to discovery, did the defense request disclosure of the exculpatory evidence, begs the further question of whether a non-existent test is “exculpatory evidence.” Much of the case law involving testing revolves around the destruction or loss of evidence. However, in this case, the question revolves around existing untested evidence. Therefore, before we move on to analysis of destroyed or lost evidence, we must determine whether the defendant has a constitutional right to require that the Commonwealth conduct tests on physical evidence.
2. Is There an Obligation to Produce Non-existent Potentially Exculpatory Tests
In Arizona v. Youngblood,
With particular relevance to the present case, the Youngblood Court went on to comment as follows:
*428 The Arizona Court of Appeals also referred somewhat obliquely to the State’s “inability to quantitatively test” certain semen samples with the newer P-30 test.153 Ariz., at 54 ,734 P.2d, at 596 . If the court meant by this statement that the Due Process Clause is violated when the police fail to use a particular investigatory tool, we strongly disagree. The situation here is no different than a prosecution for drunken driving that rests on police observation alone; the defendant is free to argue to the finder of fact that a breathalyzer test might have been exculpatory, but the police do not have a constitutional duty to perform any particular tests.
(Emphasis added.) Youngblood,
State appellate courts have addressed the same issue. The Connecticut Supreme Court directly addressed this issue in Connecticut v. Conn,
The result of the U.S. Supreme Court’s holding in Youngblood, the Connecticut Supreme Court’s holding in Conn, and the Georgia Court of Appeal’s decision in Kendrix is that it would not even be necessary to analyze a failure to conduct tests under the evidence preservation standard for lost and destroyed evidence, since a failure to conduct a test (versus preserving and producing tangible evidence to a defendant) would not be a violation of the
3. Would Tests Be Exculpatory Even If in Existence
Although the Court has determined that there is no constitutional right of defendant to require performance of the tests at issue, since the Court has found, and counsel have cited, no Virginia appellate authority on the issue, the Court will address the alternate argument that there is such a right and consider the current facts. Assuming for the moment that the failure of the Commonwealth could in some way be construed to amount to a denial of exculpatory evidence, we now consider what the appropriate standard would be in analyzing the failure of the prosecution to provide test results.
In United States v. Bagley,
The defendant contends as follows: (1) that if these items were submitted to the forensic laboratory for testing, a positive test would support defendant’s contention that the crime scene was an illegal drug house, (2) that since a juiy is likely to be less sympathetic to a victim associated with drug sales, any proof that would tend to support the defendant’s contention that the crime scene was an illegal drug house would make the jury less sympathetic to occupant-victims associated with such drug sales and such proof could diminish the likelihood that the juiy would find there to be violence associated with the murder, (3) that a positive test would show that victim Copeland was
The Commonwealth counters that, even if the items tested positive for controlled substances, that does not show when, where, or how the items came to be in the house or whether the defendant or any witnesses used the items or were aware of their presence at the house. The Commonwealth further contends that, if the evidence showed that the defendant or victims used substances which might show up as testing positive on these items, then the items would be exculpatory; however, since there is no evidence tying the victims or the defendant to these items, they are not exculpatory as to guilt. The Commonwealth further contends that these items have no relevance to the litigation.
We have examined above the analysis employed in determining whether material should be produced, as exculpatory material, to the defendant. We now look at the standard employed, upon a defendant’s claim that existing evidence is exculpatory, in determining whether the police or government must preserve such evidence. The Due Process Clause of the U.S. Constitution does not require the police or government to preseive all potentially exculpatory evidence for a defendant’s benefit. Evidence must be preserved when its exculpatory value was apparent before the evidence was destroyed and when the evidence was of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. California v. Trombetta,
Assuming that the defendant could somehow make out facts showing he has a right to have tests performed in certain situations, when the standard used in analyzing evidence not being produced or being destroyed is applied to the items at issue, the missing element in the defendant’s analysis is the link between the items he seeks to have tested and the victims and/or witnesses. Without that link, any potentially positive test results would be of no real value. Even if testing of the items revealed the presence of controlled substances, without a real link to the victims and/or witnesses, there can be no suggestion that the results would have in any way exonerated the defendant. As for the defendant’s contention that positive tests would tend to bolster his argument that this was a drug house and therefore the occupants and persons present were unreliable, such an argument fails without some link to the victims or witnesses. Considering the possible inferences a fact-finder might draw from a positive test, it could just as easily harm the defendant as help him since the jury could conceivably believe that his presence at a home where items tested positive for controlled substances rendered him a less believable witness or impugned his character. As the court in People v. Seaton,
4. Impact of Ruling on Conduct of Trial
The logical next question is, what impact does this holding have on the trial of this matter. The Massachusetts Supreme Judicial Court addressed the issue in a trial context, versus a pre-trial discovery/exculpatory evidence context, in Commonwealth v. Bowden,
If the Commonwealth chooses not to analyze the subject items, then the defense is free to appropriately comment at trial on the inferences that can be drawn from the absence of such tests, as the Bowden and Gilmore courts concluded. Bowden,
Conclusion
The defendant’s Motion for a Bill of Particulars is denied. The defendant’s Motion for Entry of an Order Regarding Analysis of Evidence is denied, and the defendant will be permitted to appropriately comment on inferences that he contends should be drawn from the failure to conduct such tests. The defendant’s objection to the denial of his motions is preserved, in his motions and briefs, as well as the arguments made on the record by his counsel at oral argument. Should the Commonwealth have any objection to the Court’s ruling, it should file such objection with the Court within seven days of receiving this Opinion and Order. Otherwise, any objection of the Commonwealth is waived. Because the motions are denied and the defendant’s arguments are preserved in writing and on the record from oral argument, the Court dispenses with the Rule 1:13 counsel endorsement requirement. It is so ordered.
Notes
The Commonwealth is represented in this matter by William H. Swan, III, Esq., and Almetia Fields, Esq.; the defendant is represented by Nancy E. Kight, Esq., and Stephen D. Plott, Esq.
The Fourteenth Amendment to the U. S. Constitution provides, in section one, as follows: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” It appeal's that the due process clause of the Virginia Constitution does not provide for any greater rights than those afforded by the U.S. Constitution. Johnson v. Mayes,