                   COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

ELMER C. BENNEFIELD

v.    Record No. 1062-94-4

COMMONWEALTH OF VIRGINIA                       OPINION BY
                                          JUDGE CHARLES H. DUFF
FRANK D. KELLY, S/K/A                       FEBRUARY 27, 1996
 FRANK DAMON KELLY, JR.

v.   Record No. 2073-94-4
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     F. Bruce Bach, Judge

           Stephen F. Breenwald; Harvey H. Perritt, Jr.,
           for appellant Bennefield.

           William B. Moffitt; Joel Simberg (Moffitt,
           Zwerling & Kemler, P.C., on brief), for
           appellant Kelly.

           John H. McLees, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on briefs), for appellee.



      Elmer C. Bennefield and Frank D. Kelly were convicted of

murder, abduction, and use of a firearm in the commission of a

felony.   On appeal, they contend that their retrial was barred by

the double jeopardy clauses of the United States and the Virginia

Constitutions.   We disagree and affirm their convictions.

                             BACKGROUND
      During the late hours of July 30, 1993, four high school

friends, Ryan Quinn, Jason McCree, Jacob Barnhart, and William

Crocker (the Crocker group), attempted to purchase marijuana from
Kelly, Bennefield and Rick Herring (the Kelly group).   The

Crocker group gave the Kelly group one hundred fifty dollars, and

they followed the Kelly group by car to a restaurant.   The Kelly

group travelled together in one car, and the Crocker group

followed in Crocker's car.   The Kelly group joined with another

group (the Karim group) at the restaurant, and the Karim group,

in a third car, followed the Kelly and Crocker groups to a motel.

Someone in the Kelly group told the Crocker group that a man had

taken the drug purchase money and fled without delivering the

marijuana.   On the pretext of finding the person who had taken

the money, the Crocker group followed the cars carrying the Kelly

and Karim groups to a deserted construction site.   At the

construction site, members of the Kelly and Karim groups pointed

guns at the Crocker group members and ordered them to lie on the

ground.   The Kelly and Karim group members shot three members of

the Crocker group, injuring Quinn and McCree and killing Crocker.

Barnhart fled, uninjured.
     On February 28, 1994, Bennefield, Kelly and Herring were

jointly tried pursuant to Code § 19.2-262.1.   On March 2, 1994,

during the prosecution's direct examination of Quinn, Bennefield

and Kelly (appellants) learned for the first time that Quinn had

received psychological counseling and possibly suffered from

post-traumatic stress disorder.   Appellants also discovered for

the first time that Barnhart, who testified before Quinn, may

have been receiving counseling.   Bennefield told the trial court




                                  2
that he did not want a mistrial, but Kelly moved for a mistrial.

The trial court recessed until March 8, 1994, to allow counsel to

review and investigate the newly learned information relating to

the Commonwealth's witnesses.

     The trial court ordered the Commonwealth's attorney to

review his file, interview the witnesses, and give the defendants

any information remotely exculpatory.

     When trial reconvened on March 8, 1994, counsel for Kelly

told the trial judge that, moments before the trial resumed, he

received from the Commonwealth a statement made by McCree that

differed from McCree's trial testimony.   Bennefield then moved

for a mistrial.   After hearing argument by counsel, the trial

judge declared a mistrial.
     From April 27 through April 29, 1994, the trial judge

conducted a hearing and heard testimony relating to appellants'

motions to dismiss based on double jeopardy and whether the

Commonwealth intended to cause a mistrial.   The trial judge

denied the motions, and levied a sanction against the prosecutor.

On July 12 and 13, 1994, appellants were retried and found

guilty.

                        STANDARD OF REVIEW

     Whether a prosecutor intended to provoke or goad a defendant

into moving for a mistrial "is a question of fact for the trial

court to resolve."   Robinson v. Commonwealth, 17 Va. App. 551,

555, 439 S.E.2d 622, 625, aff'd on reh'g en banc, 18 Va. App.



                                 3
814, 447 S.E.2d 542 (1994).    On appeal, the trial court's finding

is accorded great deference.     Id. at 555 n.4, 439 S.E.2d at 625

n.4.

                APPELLANT'S FIFTH AMENDMENT CLAIM

               The Double Jeopardy Clause of the Fifth

          Amendment protects a criminal defendant from

          repeated prosecutions [or multiple

          punishments] for the same offense.    As a part

          of this protection against multiple

          prosecutions, the Double Jeopardy Clause

          affords a criminal defendant a "valued right

          to have his trial completed by a particular

          tribunal."    The Double Jeopardy Clause,

          however, does not offer a guarantee to the

          defendant that the State will vindicate its

          societal interest in the enforcement of the

          criminal laws in one proceeding.    If the law

          were otherwise, "the purpose of law to

          protect society from those guilty of crimes

          frequently would be frustrated by denying

          courts power to put the defendant to trial

          again."
Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982) (citations and

footnote omitted).     See also Wade v. Hunter, 336 U.S. 684, 688-89

(1949) ("a defendant's valued right to have his trial completed



                                   4
by a particular tribunal must in some instances be subordinated

to the public's interest in fair trials designed to end in just

judgments").

        Generally, "when a mistrial is declared at the defendant's

behest, he is not permitted to claim the protection of the double

jeopardy bar.    However, when a defendant requests a mistrial

because of intentional prosecutorial misconduct, the double

jeopardy bar will apply."     Kemph v. Commonwealth, 17 Va. App.

335, 341, 437 S.E.2d 210, 213 (1993) (citations omitted).    In

other words, "the Commonwealth cannot use its own misconduct to

gain an advantage."     Id. at 341, 437 S.E.2d at 213-14.

        This exception is a narrow one and is applicable "'[o]nly

where the government conduct in question is intended to "goad"

the defendant into moving for a mistrial.'"     Robinson, 17 Va.

App. at 553, 439 S.E.2d at 623 (quoting Kennedy, 456 U.S. at

676).    "The [narrow] standard applied in Kennedy is that

prosecutorial conduct, even if viewed as harassment or

overreaching and sufficient to justify a mistrial, does not bar

retrial absent proof of intent on the part of the prosecutor to

subvert the protections afforded by the double jeopardy clause."
 MacKenzie v. Commonwealth, 8 Va. App. 236, 240, 380 S.E.2d 173,

175 (1989) (citing Kennedy, 456 U.S. at 675-76) (emphasis added).
          In Kennedy, the Supreme Court made it clear
          that the exclusive focus should not be on the
          fact of prosecutorial error or on the impact
          of such error upon a defendant, but only on
          the intent of the prosecutor in committing
          the error. Accordingly, [the appellant], who
          has the burden of proving that the second



                                   5
             prosecution is barred by double jeopardy,
             must produce sufficient evidence to allow the
             court to infer "the existence or nonexistence
             of intent from objective facts and
             circumstances."


Robinson, 17 Va. App. at 553, 439 S.E.2d at 624 (quoting Kennedy,

456 U.S. at 675) (citation and footnotes omitted).

     "In order to grant [appellant's] plea of double jeopardy,

the facts must warrant the conclusion that there was an

instigative intention to subvert the protections afforded by the

Double Jeopardy Clause."     Robinson, 17 Va. App. at 555, 439

S.E.2d at 625.

     From April 27 through April 29, 1994, the trial judge who

granted the mistrial heard evidence in order to determine whether

the prosecutor's conduct was intended to cause appellants to

request a mistrial.    The prosecutor, Brownelle, testified that he

received notes, reports, and other investigative information from

the police, but that he failed to thoroughly read this

information.    He admitted that he did not read supplemental

police reports and that some of the information was exculpatory,

namely, the inconsistent statements of witnesses.    The prosecutor

also admitted that his last minute disclosures of certain

evidence were negligent.    He unequivocally denied any intent to

cause a mistrial and insisted that the trial was proceeding

favorably.

     Investigator Guckenberger testified that he was the lead

investigator in the case and that the case was complex and



                                   6
involved much paperwork and many reports.   Guckenberger left the

city for eight weeks during the investigation in order to attend

a training school.   Guckenberger said that through an "oversight"

on his part, he and Brownelle did not find the supplemental

police report containing McCree's inconsistent statement until

after the mistrial was granted.   When the prosecutor saw the

report, he was "shocked" and told Guckenberger that they had to

give the report to the defendants.    Guckenberger also indicated

that certain statements made at a hospital were made under

adverse conditions; therefore, he did not rely on them as much as

on the statements taken a few days later in calmer surroundings.

Guckenberger recorded the later statements on tape and had them

transcribed.
     Investigator Cline testified that, after the mistrial was

granted, the prosecutor told him to review his police file.     At

that time, Cline discovered a statement made by Quinn in the

hospital on the night of the crime.   Cline thought he had given

it to the prosecutor.   Cline kept a separate file of which

Guckenberger and Brownelle were unaware.    On the day before the

April 28, 1994 hearing, Cline first realized he had a note

suggesting that Quinn visited a psychiatric facility.

     Two attorneys testified and opined about the impact that the

undisclosed or late-disclosed evidence could have had and whether

such disclosure would prompt them to request a mistrial.

     After hearing three days of testimony, and, based on "the




                                  7
objective facts and circumstances," the trial court found, that

the prosecutor "did not intend to provoke a mistrial.   I'll say

that beyond any reasonable doubt."
          I also find looking at the facts objectively
          that -- and I'll say that this hearing has
          not really been about discovery or
          exculpatory evidence. It's not really about
          did these Defendants get a fair shake as a
          result of Brownelle's actions, because
          clearly they didn't. They got a bad deal as
          a result of it. . . . What's the objective
          evidence as far as [Prosecutor] Brownelle is
          concerned? I think it probably shows -- I
          don't know whether it's laziness, whether
          it's procrastination, certainly negligence.
          I would say certainly gross negligence. I'll
          go further and say as a finding it shows near
          total indifference at least to Court
          Orders . . . .
               . . . Now, I find for the first time
          during this hearing that he didn't even look
          at the files sometimes. He used words in his
          testimony that he glanced at the file or he
          perused the file. I mean, the Commonwealth
          has the absolute duty to study the file to
          comply with the Court Orders.
               I would say the objective evidence shows
          probably an intent to stonewall. Instead of
          giving -- if something's questionable -- I
          said this during the case. If something's
          questionable, I feel like it's the
          Commonwealth's duty to give that to the
          Defendant. Now, Brownelle obviously took the
          position that if it was questionable to
          withhold or at least give it to them at the
          least advantageous time for them.
               And I make all of these findings here on
          this record for whatever somebody else may
          want to do with it. But I cannot find and do
          not find that he did these things in order to
          provoke a mistrial. I think the objective
          evidence is to the contrary and so I find.


     After making its findings, the trial court imposed a $6,700

sanction against the prosecutor for violating the court's orders




                                8
relating to discovery and exculpatory evidence.      The record

before us confirms the appropriateness of such severe sanctions.

     Whether a prosecutor "intended to 'goad' the defendant into

moving for a mistrial" requires an assessment of the "objective

facts and circumstances of the case."       Kennedy, 456 U.S. at

675-76.   Here, the prosecutor successfully moved for a joint

trial of three co-defendants pursuant to Code § 19.2-262.1.

Numerous police officers investigated the case, collected

evidence, and submitted reports.       The crime involved five
co-defendants plus two additional suspects and four victims.

     We find it significant that the trial judge who conducted

the hearing on the double jeopardy issue was the same judge who

presided at appellants' first trial.      For that reason, he was

better able to determine how the prosecution's case was

progressing, and whether the prosecutor had any motivation or

desire to cause a mistrial so as to gain a more favorable

position at a new trial.    See Robinson, 17 Va. App. at 555, 439

S.E.2d at 624-25 (noting that by having original trial judge hear

double jeopardy argument better enabled judge to properly

consider strength of Commonwealth's case at first trial and

determine issues of credibility).      The conduct underpinning

appellants' complaints, the prosecutor's failure to comply with

discovery orders and to timely furnish exculpatory evidence,

began before the start of trial and continued throughout the

trial.    The consistency of his conduct, predating the trial and



                                   9
continuing after it began, belies an assumption that he suddenly,

during trial, manifested an "instigative intention to subvert the

protections afforded by the Double Jeopardy Clause."    Id.

     In finding that the prosecutor did not intend to provoke a

mistrial, the trial judge, positioned as he was, could rely on

"the prosecutor's representations about his intent, the

prosecutor's credibility as a witness and the strength of the

Commonwealth's evidence at the first trial."    Id. at 554, 439

S.E.2d at 624.
     The prosecutor's testimony indicated, for example, that he

did not believe some of the undisclosed information was

exculpatory.   He also failed to credit as reliable certain

inconsistent statements made by the victims on the night of the

crimes, which were made under stressful and chaotic hospital

conditions.    Some of the statements were misplaced by the police

and, apparently, were not timely provided to the prosecution.

The prosecutor became aware of Quinn's psychological counseling

only during his direct examination of Quinn at the first trial;

the information was in Quinn's victim impact statement prepared

for sentencing of a juvenile co-defendant, Leon Peden, and the

prosecutor had not read it.   Peden's sentencing had not occurred

at the time of the February 28, 1994 trial.

     The trial judge believed the prosecutor's testimony that he

did not thoroughly read the files or conscientiously follow

discovery orders directing him to search and reveal discoverable



                                 10
information.    Because the prosecutor failed to read some reports,

the trial judge characterized the prosecutor's conduct as

"laziness," "procrastination," "gross negligence,"    and "total

indifference."    He found an "intent to stonewall," in that the

prosecutor either refused to view certain evidence as exculpatory

or waited until the last moment to disclose it.    However, the

trial judge unequivocally found no intent "to provoke a

mistrial."
        As we have consistently held in our prior opinions,
             prosecutorial conduct, even if viewed as
             [harassing] or overreaching and sufficient to
             justify a mistrial, does not bar retrial absent
             proof of intent on the part of the prosecutor to
             subvert the protection afforded by the double
             jeopardy clause.


Kemph, 17 Va. App. at 341, 437 S.E.2d at 214 (alteration in

original) (quoting MacKenzie, 8 Va. App. at 240, 380 S.E.2d at

175).     See also Robinson, 17 Va. App. at 555, 439 S.E.2d at 625

("Without the requisite intent, . . . gross prosecutorial

misconduct will not satisfy the exception set forth in Kennedy").

        Based on the appropriate standard of review, giving due

deference to the trial court's findings of fact, and based on the

objective facts and circumstances before the trial court, we

conclude that the trial court's findings are supported by

credible evidence.    Therefore, the trial court's finding that

there was no intent to provoke a mistrial is not clearly

erroneous.    Accordingly, under the standard expressed in Oregon
v. Kennedy, appellants' retrial did not violate the Double



                                  11
Jeopardy Clause of the Fifth Amendment of the United States

Constitution.

                APPELLANTS' STATE CONSTITUTIONAL CLAIM

     Appellants' second argument is that the prosecutor's

egregious conduct was not the type of conduct contemplated under

Oregon v. Kennedy, and that a more stringent analysis should be

applied.   In support of this argument, appellants cite Justice

Stevens' concurring opinion in Kennedy, in which Stevens

unsuccessfully argued for a broader "overreaching" standard.
456 U.S. at 681-93.    Appellants offer no majority or plurality

opinions from the Supreme Court providing an alternative

applicable standard.    In support of their position, appellants

cite cases from state courts that have expanded the Kennedy

standard under their respective state constitutions.     This

argument also relates to appellants' third argument, namely, that

the Double Jeopardy Clause contained in Article I, section 8 of

the Virginia Constitution provides greater protection than that

afforded under the federal Constitution, as announced in Kennedy.
Therefore, we consider arguments two and three together.

     In Kemph v. Commonwealth, this Court held that, by applying

the Kennedy analysis to double jeopardy claims, as we did in

MacKenzie, the protections against double jeopardy afforded under

the United States Constitution are identical with those embodied

in Article I, section 8 of Virginia's Constitution:
          Kemph asserts for the first time on appeal
          that the double jeopardy clause of the
          Virginia constitution protects him from



                                  12
          retrial even if the United States
          Constitution does not. This claim is barred
          by Rule 5A:18; nonetheless, as this Court has
          ruled that resolution of such a double
          jeopardy claim is controlled by Oregon v.
          Kennedy, MacKenzie, 8 Va. App. at 239, 380
          S.E.2d at 175, his argument lacks merit.


Kemph, 17 Va. App. at 343 n.1, 437 S.E.2d at 215 n.1.

     Our courts have consistently held that the protections

afforded under the Virginia Constitution are co-extensive with

those in the United States Constitution.    Peterson v.
Commonwealth, 5 Va. App. 389, 394, 363 S.E.2d 440, 443 (1987)

(stating that the double jeopardy clauses of the Federal

Constitution and the Virginia Constitution "basically afford[] a

defendant" the same three protections).    See also Lowe v.

Commonwealth, 230 Va. 346, 348 n.1, 337 S.E.2d 273, 274 n.1

(1985); Walton v. City of Roanoke, 204 Va. 678, 682, 133 S.E.2d

315, 318 (1963); Flanary v. Commonwealth, 113 Va. 775, 779, 75

S.E. 289, 291 (1912); Farmer v. Commonwealth, 12 Va. App. 337,

340, 404 S.E.2d 371, 372 (1991) (en banc); I. A. Howard,
Commentaries on the Constitution of Virginia 182 (1974).      Neither

the facts of this case nor our prior decisions support an




                               13
extension of the protections afforded under our Constitution

beyond those contained in the federal Constitution.

                                                  Affirmed.




                               14
