                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia


ADHAN MALDONADO, S/K/A
 ADAN MALDONADO
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2384-05-4                                   JUDGE JAMES W. BENTON, JR.
                                                                  DECEMBER 28, 2006
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                 Burke F. McCahill, Judge

                 Bonnie H. Hoffman, Deputy Public Defender, for appellant.

                 Alice T. Armstrong, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       A jury convicted Adhan Maldonado of aggravated sexual battery. Maldonado contends the

trial judge violated his right of due process by refusing to place his witness subpoenas under seal

and further erred by failing to set aside the verdict after an ex parte communication occurred

between court personnel and the jury during deliberations. We hold that that the trial judge did not

violate Maldonado’s due process rights by not sealing his witness subpoenas. We agree, however,

that the ex parte communication obligated the trial judge to set aside the jury verdict. Thus, we

reverse the conviction and remand the case for retrial.

                                                  I.

       A month before the trial, Maldonado’s attorney filed a motion to seal her witness

subpoenas. Arguing the motion, Maldonado’s attorney contended this was a due process issue

because the Commonwealth was not required to disclose its witness list to the defense and “the

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
playing field should be leveled.” The prosecutor indicated she already had filed the

Commonwealth’s returns of service identifying her witnesses and the returns were available for

viewing in the courthouse. The trial judge denied the motion.

       The evidence at trial proved Maldonado went to his nephew’s house one afternoon for a

social gathering of friends. While the guests were eating and mingling around the deck at the

rear of the house, Maldonado was pushing the four-year-old child of his nephew as she sat in a

rope swing. The swing is a single piece of rope tied in a loop and hung on a tree next to the

deck. Later in the evening after the guests left, the child’s parents noticed blood in the child’s

underwear. They took her to the hospital the next day. The nurse examined the child and found

a small laceration on her genitalia. The nurse testified the laceration was abnormal but she could

not say what caused it.

       Investigator Craig and Deputy Giron arrested and interviewed Maldonado. Because

Maldonado spoke Spanish and Investigator Craig did not, Deputy Giron acted as an interpreter.

Maldonado agreed to talk to the officers and signed a waiver of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966). Initially, Maldonado informed the officers that he did not

remember anything from the party because he was intoxicated. Later in the interview, the

officers told Maldonado that a nurse found a cut on the child’s genital area and that the nurse had

medical proof he had caused it. They suggested it may have occurred accidentally. Deputy

Giron testified Maldonado responded, “he was drunk and he couldn’t remember, but he said it’s

possible he did open her pants, went down her panties, and rubbed her vagina area.” After this

admission, the officers asked Maldonado if they could record the interview. The officers then

recorded the last twenty minutes of the two-hour interview.

       During Deputy Giron’s testimony, the prosecutor played the tape, and the deputy again

translated the Spanish portions of the tape, explaining where he deviated from a literal translation

                                                -2-
of Investigator Craig’s questions and how. On the tape, Investigator Craig asked questions in

English, Deputy Giron asked the questions in Spanish, Maldonado responded in Spanish, and the

deputy repeated the answers in English.

       Maldonado’s attorney objected that the deputy’s testimony concerning the Spanish

spoken on the tape was inaccurate and further that the deputy’s Spanish translation as recorded

on the tape was also inaccurate. The trial judge then directed a court interpreter to translate the

Spanish portions of the tape. Concerned about whether the officer was “summarizing,” the judge

indicated the translator would “just say, I heard this sentence in Spanish, stop, this is what it

means, the defendant’s reply, translate it to English, and let the jury decide.” After the deputy

had concluded his testimony, the interpreter played the tape before the jury and orally translated

the Spanish portions.

       Several defense witnesses testified they saw Maldonado pushing the child and her brother

while they were on the swing, but they did not see him touch the child inappropriately.

Maldonado testified that he pushed the child and her brother while they were on the swing. He

testified he did not remove or unfasten the child’s pants and did not touch her genitalia. He

explained that, during the interview, he denied the officer’s accusations nine or ten times. He

said the officers then informed him that they had proof he hurt the child and that, if he confessed,

he could go home. Maldonado testified he told them what he believed they wanted to hear

because he was afraid the officers would physically attack him.

       During closing argument, the prosecutor referred to Maldonado’s confession in the

interview and the contents of the recording, which was an exhibit. The prosecutor also referred

to specific questions the officers asked Maldonado and told the jury the following:

                  You all heard the tape played to you, and you’ll be able to, if
               you so desire, to hear it again back in deliberations. Listen to the
               tone of Deputy Giron and Investigator Craig on that tape. Listen to
               the tone of the defendant’s voice and determine for yourselves
                                                 -3-
                   whether or not you think his will was overborne and he was forced
                   into making the statement to the police.

During her closing argument, Maldonado’s attorney argued that the other guests at the party

would have seen something suspicious if Maldonado had committed the alleged act. To support

the contention that Maldonado made his statement not because it was true, but out of fear of the

police, Maldonado’s attorney emphasized the leading questions the police asked during the taped

portion of the interview and Maldonado’s mirrored responses. Maldonado’s attorney also

emphasized that the jury’s determination of the contents of the tape and the interpretations were

critical issues.

        At the conclusion of the arguments, the jury received the tape and other exhibits in the

deliberation room. The jury convicted Maldonado of aggravated sexual assault. The trial judge

imposed the jury’s sentence of four years imprisonment and gave an additional year of

post-release supervision.

        Maldonado’s attorney filed a motion to set aside the verdict and for mistrial, based on an

ex parte communication between court personnel and the jury. The prosecutor did not contest

the allegation that the jurors asked for an interpreter during the deliberations to interpret the

Spanish portion of the exhibit that recorded the interview. Court personnel denied the jury’s

request without communicating the request to the trial judge or either party. After considering

the arguments, the trial judge said he would not have allowed the jurors’ request under any

circumstances, and he denied the motion, ruling the ex parte contact was harmless.

                                                       II.

        Maldonado contends “due process requires that a defendant’s request for witness

subpoenas be placed under seal and not made available for inspection by the Commonwealth.”

Underlying this claim is his argument that Rule 3A:12 and Code § 19.2-267 permit the

prosecutor to maintain a strategic advantage over defendants because the prosecutor can shelter
                                                 -4-
the witnesses the prosecutor subpoenas for trial from scrutiny by a defense attorney while the

identities of witnesses a defense attorney subpoenas for trial are available for scrutiny. He

argues that the procedure in criminal cases allowing prosecutors, and not defense attorneys, the

power to directly issue subpoenas gives the Commonwealth an unconstitutional tactical

advantage in violation of the Due Process Clause of the Fourteenth Amendment. Thus, he

argues the trial judge erred by not granting his motion to place his witness subpoenas under seal.

        The Commonwealth contends that Maldonado’s argument substantively fails because the

Constitution does not provide a “right to proceed in secrecy” or a “right of surprise.” The

Commonwealth additionally contends Maldonado’s claim is not justiciable. Noting the

prosecutor proffered at trial that her office had already filed the returns in the clerk’s office, the

Commonwealth argues Maldonado’s attorney could have learned the identities of the

Commonwealth’s witnesses by looking in the court’s file.

        Rule 3A:12 mandates, in pertinent part, as follows in criminal proceedings:

                A subpoena for the attendance of a witness to testify before a court
                not of record shall be issued by the judge, clerk, magistrate, or
                Commonwealth’s attorney. A subpoena for the attendance of a
                witness to testify before a circuit court or a grand jury shall be
                issued by the clerk or Commonwealth’s attorney.

Similarly, Code § 19.2-267 provides:

                In a criminal case, a summons for a witness may be issued by the
                attorney for the Commonwealth or other attorney charged with the
                responsibility for the prosecution of a violation of any ordinance;
                however, any attorney who issues such a summons shall, at the
                time of the issuance, file with the clerk of the court the names and
                addresses of such witnesses.

Applying this statute in Caccioppo v. Commonwealth, 20 Va. App. 534, 537, 458 S.E.2d 592,

594 (1995) (quoting Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994)), we

concluded “that the use of ‘shall’ in Code § 19.2-269 is ‘directory and not mandatory.’” Thus,

we held that the Commonwealth’s witnesses can testify even if the prosecutor does not file the

                                                 -5-
witnesses’ names and addresses with the court until the day of trial. Caccioppo, 20 Va. App. at

537-38, 458 S.E.2d at 594. In view of the holding in Caccioppo, we agree with Maldonado that

a defendant does not necessarily have the opportunity to discover whom the Commonwealth

plans to call as witnesses. Yet, a defendant’s witnesses, who generally must be subpoenaed upon

request through the clerk’s office, can be discovered by reviewing the file, giving the

Commonwealth the opportunity to interview defense witnesses before trial.

       The facts of this case, however, are otherwise. In response to Maldonado’s pretrial

motion, the prosecutor proffered that her office had filed the returns of service for its witnesses

and, thus, the names of its witnesses were available to Maldonado. Although Maldonado

suggests no evidence in the record supports the Commonwealth’s assertion, the rule is well

settled that “a unilateral avowal of counsel, if unchallenged, . . . constitutes a proper proffer.”

Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977). Maldonado did not

challenge the Commonwealth’s attorney’s pretrial proffer; thus, the proffer is part of the record.

See Parker v. Commonwealth, 42 Va. App. 358, 369 n.4, 592 S.E.2d 358, 363 n.4 (2004)

(reciting as evidence facts “presented to the trial court in the form of an unchallenged proffer by

the Commonwealth’s attorney”). The trial judge properly accepted the unchallenged avowal of

the prosecutor.

       The Fourteenth Amendment to the United States Constitution provides that “[n]o State

. . . shall deprive any person of life, liberty or property without due process of law.”

                  “Procedural due process rules are meant to protect persons not
                  from the deprivation, but from the mistaken or unjustified
                  deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S.
                  247, 259 (1978). Due process analysis consists of two steps. See
                  Klimko v. Virginia Employment Comm’n, 216 Va. 750, 754, 222
                  S.E.2d 559, 563, cert. denied, 429 U.S. 849 (1976). First, a
                  deprivation of a liberty or property interest must be demonstrated.
                  See J.P. v. Carter, 24 Va. App. 707, 715, 485 S.E.2d 162, 167
                  (1997). Then, “‘once it is determined that due process applies, the
                  question remains what process is due.’” Id. (quoting Jackson, 14
                                                  -6-
                Va. App. at 406, 419 S.E.2d at 393-94). “The requirements of
                procedural due process apply only to the deprivation of interests
                encompassed by the Fourteenth Amendment’s protection of liberty
                and property. . . . The range of interests protected by procedural
                due process is not infinite.” Board of Regents v. Roth, 408 U.S.
                564, 569-70 (1972).

O’Banion v. Commonwealth, 30 Va. App. 709, 723, 519 S.E.2d 817, 824 (1999). When an

accused claims a due process violation, “[w]e are to determine only whether the action

complained of . . . violates those ‘fundamental conceptions of justice which lie at the base of our

civil and political institutions,’ and which define ‘the community’s sense of fair play and

decency.’” United States v. Lovesco, 431 U.S. 783, 790 (1977) (citations omitted).

        To establish a claim for violation of due process, Maldonado must show that the

procedure he complains of deprived him of his liberty or property interest. Jackson v. W., 14

Va. App. 391, 406, 419 S.E.2d 385, 393 (1992). To make this showing, Maldonado had to offer

“more than undeveloped assertions that the requested [procedure] would be beneficial.”

Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985). As a general rule, when an accused

makes “claims of due process deprivations[, courts] require a showing of identifiable prejudice to

the accused.” Estes v. Texas, 381 U.S. 532, 542 (1965).

        Maldonado contends the procedure deprived him of a fair opportunity to present his

defense and violated his due process rights because “the Commonwealth ha[d] no obligation to

provide to defense counsel the names of her witnesses” but, yet, knew the identity of his

witnesses. Maldonado argues the Rule and the statute impermissibly treated the two parties

unequally because the Commonwealth’s attorney could have kept its witness list secret, but he

could not. Maldonado asserts he was prejudiced because the pretrial interviews conducted by the

police of his witnesses enabled the prosecutor to attempt to impeach some of his witnesses

during their testimony based on their statements to the police investigator and cast doubt upon

their credibility.
                                               -7-
         On the facts of this case, Maldonado can make no colorable claim that Rule 3A:12 and

Code § 19.2-267 deprived him of due process. The record established that a month prior to trial

the names of persons subpoenaed by the prosecutor were in the court’s file and were available

for inspection by Maldonado’s attorney. Maldonado and the Commonwealth’s attorney both had

the opportunity to learn the identities of the other’s witnesses and interview them beforehand to

prepare for trial. The trial judge’s refusal to deprive the prosecution of the same opportunity that

was available to Maldonado did not violate any fundamental notions of justice. Lovesco, 431

U.S. at 790 (holding that the prosecution’s delay before indicting the appellant did not deprive

him of due process). We hold, therefore, that the trial judge did not deprive Maldonado of his

due process rights by denying his motion to place his witness subpoenas under seal.

                                                 III.

         Maldonado contends the ex parte communication between the jury and the court

personnel about a material issue in the case during the jury’s deliberation necessitates setting

aside the jury’s verdict. He argues that the prosecution did not adequately show that the court

personnel’s ex parte communication with the jury was harmless. The Commonwealth responds

that the trial judge did not abuse his discretion in denying the motion for a new trial because

Maldonado was not prejudiced by the communication. The Commonwealth characterizes the

communication as an administrative one, as opposed to a communication pertaining to the matter

before the jury. Additionally, the Commonwealth argues that speculation on the jury’s

perceptions of the communication “are not sufficient to overcome the trial court’s findings of

fact.”

         The principle restricting ex parte communication with the jury is well settled in Virginia:

                   “In a criminal case, any private communication, contact, or
                tampering, directly or indirectly, with a juror during a trial about
                the matter pending before the jury is . . . deemed presumptively
                prejudicial, if not made in the pursuance of known rules of the
                                                 -8-
               court and the instructions and directions of the court made during
               the trial, with full knowledge of the parties. The presumption is
               not conclusive, but the burden rests heavily upon the Government
               to establish, after notice to and hearing of the defendant, that such
               contact with the juror was harmless to the defendant.”

Scott v. Commonwealth, 11 Va. App. 516, 520, 399 S.E.2d 648, 650 (1990) (quoting Remmer v.

United States, 347 U.S. 227, 229 (1954)). Thus, once the defendant shows that an ex parte

communication occurred about the matter pending before the jury, the burden shifts to the

government to prove that the contact was harmless. The Commonwealth does not contest that

the communication occurred. The remaining questions are whether the communication pertained

to the matter before the jury and whether any error was harmless.

        Two instructive cases on whether a communication pertains to the matter pending before

the jury are Ellis v. Commonwealth, 227 Va. 419, 317 S.E.2d 479 (1984), and Scott, 11 Va. App.

516, 399 S.E.2d 648. In Ellis, one of the jurors smelled of alcohol and dozed during testimony.

227 Va. at 421, 317 S.E.2d at 480. In chambers, the trial judge privately admonished the juror to

stay awake and inquired into the odor of alcohol. Id. Satisfied with the juror’s explanation that

he had consumed alcohol the day before and his assurance that he would perform his duties as a

juror, the judge allowed the juror to remain. Id. The Supreme Court of Virginia held that the ex

parte communication was “administrative in nature” and did not “‘relate[] to some aspect of the

trial.’” Id. at 423, 317 S.E.2d at 481 (quoting Rushen v. Spain, 464 U.S. 114, 119 (1983)).

Thus, the Court distinguished between administrative matters and matters pending before the

jury.

        In Scott, the bailiff told the venire panel during voir dire that Richmond juries were more

lenient than juries in other jurisdictions. 11 Va. App. at 518, 399 S.E.2d at 649. This Court held

that those communications were of “constitutionally impermissible” content because they sent an




                                               -9-
unmistakable message to the prospective jury members about the discharge of their duties. Id. at

520-21, 399 S.E.2d at 650-51.

          We conclude that the circumstances in this case of the court personnel’s response to the

jury’s request for an interpreter are more analogous to the Scott facts than those in Ellis. Here,

the jury as a whole directed a communication to the court. It presented a request for an

interpreter to aid the jury’s deliberations about an exhibit it was given containing dialogue in

Spanish. This was not a case where the judge dealt privately with a matter of juror

administration. The communication was about the matter pending before the jury and was not

one of trial administration.

          The government bears a heavy burden in proving an ex parte communication was

harmless. Id. at 520, 399 S.E.2d at 650.

                    The test in a criminal case is not whether the jurors were
                 actually prejudiced by the extraneous matter, but whether they
                 might have been so prejudiced. If they might have been
                 prejudiced, then the purity of the verdict is open to serious doubt
                 and the verdict should be set aside and a new trial awarded.

Thompson v. Commonwealth, 193 Va. 704, 715, 70 S.E.2d 284, 290 (1952); see also Scott, 11

Va. App. at 520, 399 S.E.2d at 650; Evans-Smith v. Commonwealth, 5 Va. App. 188, 207-08,

361 S.E.2d 436, 447 (1987) (holding that the trial judge erred by not questioning the jury about

its consideration of extraneous information). Factual findings made by the lower court are

entitled to deference, but the ultimate conclusion of harmlessness is one of law. Spain, 464 U.S.

at 120.

          Maldonado contends the tape recording of the police interview was critical to the case,

and argues the trial judge’s conclusion that the request would have been denied under any

circumstances “fails to account for the role counsel may play in shaping a court’s response to a

jury inquiry.” In determining harmlessness, relevant factors include the matter discussed, the

                                                 - 10 -
circumstances surrounding the trial, and the jury members’ statements of whether the

communication affected their deliberation. See Stockton v. Virginia, 852 F.2d 740, 746 (4th Cir.

1988) (holding that the improper “comment bore on the exact issue” of whether to impose the

death penalty or life imprisonment and focusing on how the high-public interest in the case

meant the jury might have been influenced by public sentiment); Scott, 11 Va. App. at 521, 399

S.E.2d at 651 (holding that the jurors’ statements that they were not influenced were

“insufficient, standing alone . . . , to establish harmless error”).

        The record discloses that both the prosecutor and Maldonado’s attorney suggested to the

jury the importance of reviewing the recording of the interview. In closing argument,

Maldonado’s attorney relied on the theory that Maldonado’s confession was false because he had

been questioned before the taping began and he then responded the way he thought the

interviewing police officers wanted. The tape was crucial evidence for the Commonwealth

because it contained the confession; however, the defense’s theory required the jury give careful

attention to the exact language on the tape to dispel the Commonwealth’s view that it was a

reliable confession. The interpretations given by the deputy and the interpreter differ in several

instances. There are significant instances where the court interpreter’s translation supported the

defense’s theory over Deputy Giron’s translation on the tape. When Investigator Craig asked,

“Did she run away?” Deputy Giron translated the question as, “What happened after that

happened? Did she run, did she leave? Did she leave towards her house?” Maldonado

answered, “She went towards her house.” When Investigator Craig asked, “At this time, is there

anything you’d like to say to my supervisor, to the Courts that might listen to this tape?” Deputy

Giron told Maldonado, “At this time, if there’s anything you want to tell his boss, to the Court, if

you feel bad, if you want to say what you’re feeling. It is your opportunity now to explain what

you feel, what you want to say.” The deputy said Maldonado responded, “‘please forgive me. I

                                                 - 11 -
was drunk.’ He is asking forgiveness.” The translator said Maldonado said, “Just—I want to say

that I’m sorry. I was drunk. I did not know what I did and I feel bad.”

       In another instance, Deputy Giron interpreted Maldonado’s words, “I was a little drunk

and it was possible, I believe I opened her pants and he put his hand down in her private area.”

The interpreter said Maldonado’s words were “Well, maybe I was drunk. I don’t remember very

well. Maybe I opened the pants and lowered my hand.”

       The record reflects the jury requested the services of the court’s interpreter as it

considered the exhibit containing dialogue in Spanish. Without informing the trial judge, the

employee of the court denied the jury’s request for an interpreter to translate a substantive piece

of evidence. Thus, the trial judge and the attorneys had no opportunity to consider the request, to

frame a response, or to put objections on the record. Furthermore, in view of the emphasis

placed by both parties on the importance of the exhibit and the differences that exist in the two

translations, we cannot conclude the request could not have affected deliberations and did not

prejudice Maldonado.

       That the ex parte response by the court employee was deemed by the judge, after the fact,

to be the response the judge determined he would have given, standing alone, did not render it

harmless. We believe the reasoning given by the Maryland Court of Appeals, in rejecting a

similar argument, to be persuasive.

               While the answers [the trial judge] gave were substantively correct,
               the record does not reflect . . . all of the circumstances necessary to
               be considered in determining whether the petitioner was prejudiced
               by his, and in this case, his counsel’s absence. . . . [N]either the
               petitioner nor his counsel had . . . any opportunity to have input[]
               in the answers the jury received. . . . Even more apparent is the fact
               that, by virtue of their absence, neither was able to protect the
               record, insure that the petitioner’s rights were not compromised
               and that his case was not prejudiced.




                                               - 12 -
Taylor v. Maryland, 722 A.2d 65, 73 (Md. 1998) (holding that the substantive correctness of the

ex parte responses did not overcome the presumption of prejudice).

       For these reasons, we hold that the Commonwealth failed to meet its burden to show that

the communication was harmless. The trial judge therefore erred by not granting the motion for

a new trial. Accordingly, we reverse the conviction and remand for a new trial because of the

improper ex parte communication.

                                                                  Reversed and remanded.




                                             - 13 -
