                   COURT OF APPEALS OF VIRGINIA


Present:  Judge Annunziata, Senior Judge Duff and
          Judge Clements *
Argued at Alexandria, Virginia


PHILLIP J. MOORE
                                          MEMORANDUM OPINION ** BY
v.   Record No. 0264-99-4              JUDGE JEAN HARRISON CLEMENTS
                                               JULY 25, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                  Benjamin N. A. Kendrick, Judge

           James M. Lowe (Katherine D. Carlo, on brief),
           for appellant.

           H. Elizabeth Shaffer, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Phillip Moore, appellant, contends the trial court erred

in quashing a subpoena duces tecum for the release of evidence

in the possession of the police.   Appellant also contends the

trial court erroneously permitted the Commonwealth to comment on

his failure to submit to a blood test and erroneously admitted

into evidence an arrest report.    Finding no error, we affirm the

trial court.



     *
       Judge Jean Harrison Clements took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
     **
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                            BACKGROUND

     On October 30, 1997, at 1:40 a.m., Officer Fred Galati

observed appellant's car travelling twenty to twenty-five miles

over the posted speed limit and "swerve[] from the left-hand

lane into the right-hand lane severely."   Galati engaged his

emergency lights in an attempt to stop appellant's car.

Appellant initially slowed down to 55 miles per hour, the speed

limit, but did not pull over and stop, so Galati engaged his

siren.   Appellant continued for one-half mile, then pulled over.

Galati approached the driver's side door and asked for

appellant's license and registration.    Appellant said, "Sorry,

Officer," placed his car in gear and drove off, running over

Galati's foot and causing Galati to injure his knee.

     Galati pursued appellant at speeds in excess of 105 miles

per hour.   Appellant eventually lost control of his vehicle,

struck a tree, exited his vehicle and fled on foot.    Galati

chased and cornered appellant, who "[r]aised his hands" as if

"he was going to fight."   Galati "pushed [appellant] hard

against [a] fence, backed up, took out [his] mace, and then

sprayed him" with it.   Galati then handcuffed appellant, who

yelled and cursed at Galati.   Although appellant had no serious

injuries, Galati "called a medic unit to give [appellant] a wash

down in the face."

     After a jury trial on January 28 and 29, 1999, appellant

was convicted of driving under the influence of alcohol as a

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second offense within five years.    Appellant was sentenced to

serve twelve months in jail, ordered to pay a $2,500 fine and

had his Virginia operator's license suspended for three years.

This appeal is from that judgment.

                       SUBPOENA DUCES TECUM

     In a December 1998 request for a subpoena duces tecum

directed to Edward Flynn, Arlington County Chief of Police,

appellant sought the following:

          1. Tapes of radio traffic concerning the
          arrest of the above named defendant on or
          about October 30, 1997, at approximately
          0140 hours, by Officer Galati. The produced
          recording should cover five minutes before
          the stop through arrival at the Adult
          Detention Center[; and]

          2. All arrest photographs of the
          defendant-originals are requested.

     In the accompanying affidavit, defense counsel averred

"that the documents described in the accompanying Request for

Production are material to the above styled proceedings."    The

Commonwealth moved to quash the subpoena, and the trial court

heard argument on the motion on December 17, 1998, and quashed

the subpoena.   Appellant failed to provide a transcript of that

hearing or the trial court's order.

     At the conclusion of the Commonwealth's evidence at

appellant's January 28, 1999 jury trial, appellant moved to

strike for various reasons, one of which being he was "deprived

of compulsory process by the Commonwealth in this case, in that


                               - 3 -
we had sought subpoenas duces tecum for certain evidence, which

was denied to us, which would have not only been – have every

right to have that evidence, but we have a right to evaluate it

on our own."   The subpoenas sought "tapes of the chase and the

photographs of the Defendant taken at the police station on the

night of his arrest," which appellant claimed "would have shown

significant injury to the Defendant."   Defense counsel told the

trial judge that another judge "quashed [the] subpoena" in a

prior hearing.

     Acknowledging the Commonwealth's duty "to turn over any

exculpatory evidence," the prosecutor, who was unfamiliar with

the original subpoena, the motion to quash and the order

quashing it, had "no reason to think" the requested items were

exculpatory.   Finding that the Commonwealth is "a party to the

action under Ramirez [v. Commonwealth, 20 Va. App. 292, 456

S.E.2d 531 (1995)]," the trial judge denied the motion.

     On August 17, 1999, a judge of this Court denied the issue

in appellant's petition for appeal asserting that the

photographs and tapes were "potentially exculpatory evidence" to

which he was entitled.   The bases for the denial were

appellant's speculative allegations and failure to prove that

the evidence would have been favorable and was, therefore,

exculpatory.   On November 23, 1999, a three-judge panel of this

Court granted two of the four issues raised by appellant;

however, "for the reasons set forth in the order of this Court

                               - 4 -
dated August 17, 1999," the panel refused to address appellant's

contention that he was denied potentially exculpatory evidence.

We are bound by the panel's determination that appellant failed

to prove the evidence was exculpatory.

     "There is no general constitutional right to discovery in a

criminal case."    Swisher v. Commonwealth, 256 Va. 471, 481, 506

S.E.2d 763, 768 (1998), cert. denied, 120 S. Ct. 46 (1999).

Rather, discovery is governed by Virginia law, which under Rule

3A:11 is limited and applies only to felony charges in the

circuit court.    See Rule 3A:11(b).    Because appellant was

charged with a misdemeanor, Rule 3A:11(b) did not apply.

     Rule 3A:12(b) provides for "Production of Documentary

Evidence and of Objects Before a Circuit Court."     It provides,

in pertinent part:

          Upon notice to the adverse party and on
          affidavit by the party applying for the
          subpoena that the requested writings or
          objects are material to the proceedings and
          are in the possession of a person not a
          party to the action, the judge or the clerk
          may issue a subpoena duces tecum for the
          production of writings or objects described
          in the subpoena.

Rule 3A:12(b) (emphasis added).

     "The trial court's refusal to issue a subpoena duces tecum

. . . is not reversible error absent a showing of prejudice."

Gibbs v. Commonwealth, 16 Va. App. 697, 699, 432 S.E.2d 514, 515

(1993) (citing Conway v. Commonwealth, 12 Va. App. 711, 716, 407

S.E.2d 310, 312-13 (1991) (en banc)).

                                - 5 -
     In Ramirez, the defendant contended "the trial court erred

in denying his request for a subpoena duces tecum directed to

the Fairfax Department of Social Services."     Ramirez, 20 Va.

App. at 293, 456 S.E.2d at 532.   Pursuant to Rule 3A:12(b),

Ramirez requested a subpoena "commanding [DSS] to deliver all

documents, records, reports, statements, investigative reports,

photographs, or other writings or items relating to the

allegations of defendant's [sexual] misconduct toward [the

victim]."   Id. at 294, 456 S.E.2d at 532.

     We affirmed the trial court's denial of the requested

subpoena, finding that reports and internal documents made by

agents of the Commonwealth in connection with the investigation

or prosecution of the case were not discoverable under Rule

3A:11(b)(2).    See id. at 296, 456 S.E.2d at 533.   Moreover,

because "the documents of DSS [we]re not in the possession 'of a

person not a party to the action,'" we found Rule 3A:12

inapplicable.    Id. (quoting Rule 3A:12(b)).

     In Cox v. Commonwealth, 227 Va. 324, 329 n.4, 315 S.E.2d

228, 231 n.4 (1984), the defendant "assigned error to the trial

court's refusal to issue a subpoena duces tecum requiring the

production of certain records of the City Treasurer."    Because

the bulk of those records had been seized by the police and were

in the Commonwealth's custody, the Supreme Court held "they were

not subject to a subpoena duces tecum, because they were not in



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the possession 'of a person not a party' to the proceeding."

Id.

      We find this issue is determined by the language and

reasoning in Ramirez and Cox limiting the issuance of subpoenas

duces tecum to nonparties.   The requested items were in the

possession of the police, who are agents of the Commonwealth.

See Cox, 227 Va. at 329 n.4, 315 S.E.2d at 231 n.4; Ramirez, 20

Va. App. at 296, 456 S.E.2d at 533.    Therefore, the items were

not in the possession of a "person not a party to the action."

      Moreover, "'[i]n order to assert [a] right to compulsory

process, the accused is required to make a plausible showing

that the testimony sought would be both material and favorable

to his defense.'"   Jones v. City of Virginia Beach, 17 Va. App.

405, 409, 437 S.E.2d 576, 579 (1993) (quoting Howard v.

Commonwealth, 6 Va. App. 132, 144, 367 S.E.2d 527, 534 (1988)

(citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867

(1982))).

      Here, appellant failed to submit the transcript of the

December 17, 1998 hearing at which he argued against quashing

the subpoenas.   Therefore, we have no record showing the bases

of appellant's materiality arguments.    In addition, the record

fails to show that radio communication tapes exist and are

available.   Moreover, the record fails to show how the booking

photographs and taped radio communications were material to



                               - 7 -
appellant's defense in his DUI trial.    Cf. Cox, 227 Va. at 328,

315 S.E.2d at 230.

            VOIR DIRE COMMENTS AND THE ARREST REPORT

     During voir dire of the venire, the Commonwealth's attorney

provided the following explanation to potential jurors:

          This is a case of driving under the
          influence of alcohol, and as you know, in
          Virginia, I assume you know, the legal limit
          is a .08, above which, you're driving with a
          BAC, a blood alcohol level higher than that
          is a violation of the law. In this
          particular case, which is a charge of
          driving under the influence of alcohol,
          there will be no testimony of any chemical
          test –

     Defense counsel moved for a mistrial 1 and argued this was an

improper comment on appellant's refusal to take a blood alcohol

test, and it amounted to "the functional equivalent of saying

this Defendant took his Fifth Amendment rights or something."

The Commonwealth's attorney contended she was simply trying to

explain that one way of proving DUI is by providing evidence

other than blood test results.    The trial court found that the



     1
       "Because the jury had not been sworn, trial had not
commenced, jeopardy had not attached, and no mistrial could be
declared. Therefore, appellant's remedy lay in disqualifying
the entire jury venire. Whether to disqualify an entire venire
is a matter committed to the sound discretion of the trial
judge." Brown v. Commonwealth, 28 Va. App. 315, 326, 504 S.E.2d
399, 404 (1998).
     Because we apply an abuse of discretion standard in
reviewing decisions involving motions to disqualify a venire,
see id., and motions for mistrials, see Beavers v. Commonwealth,
245 Va. 268, 280, 427 S.E.2d 411, 420 (1993), the failure to
make the proper objection was not fatal.

                                 - 8 -
prosecutor did not improperly comment on appellant's refusal to

permit a blood test in violation of Code § 18.2-268.10, and it

denied appellant's motion.

     "Code § 18.2-266 prohibits drinking alcohol and driving

under either of two separate and distinct circumstances."

Thurston v. Commonwealth, 15 Va. App. 475, 482, 424 S.E.2d 701,

705 (1992).   Code § 18.2-266(i) makes it "unlawful for any

person to drive or operate any motor vehicle . . . while such

person has a blood alcohol concentration of 0.08 percent or more

by weight by volume or 0.08 grams or more per 210 liters of

breath as indicated by a chemical test."   Code § 18.2-266(ii)

prohibits driving "while such person is under the influence of

alcohol."   "[B]eing 'under the influence of alcohol,' is

established when any person has consumed enough alcoholic

beverages to 'so affect his manner, disposition, speech,

muscular movement, general appearance or behavior, as to be

apparent to observation.'"   Thurston, 15 Va. App. at 483, 424

S.E.2d at 705 (quoting Gardner v. Commonwealth, 195 Va. 945,

954, 81 S.E.2d 614, 619 (1954)).   Therefore, where the

Commonwealth offers no chemical test results of an accused's

blood or breath, the issue becomes whether the accused is under

the influence, which has "'to be determined from all of the

evidence of his condition at the time of the alleged offense.'"

Leake v. Commonwealth, 27 Va. App. 101, 110, 497 S.E.2d 522, 526



                               - 9 -
(1998) (quoting Brooks v. City of Newport News, 224 Va. 311,

315, 295 S.E.2d 801, 804 (1982)).

     Code § 18.2-268.10 provides:

            The failure of an accused to permit a blood
            or breath sample to be taken to determine
            the alcohol or drug content of his blood is
            not evidence and shall not be subject to
            comment by the Commonwealth at the trial of
            the case, except in rebuttal; nor shall the
            fact that a blood or breath test had been
            offered the accused be evidence or the
            subject of comment by the Commonwealth,
            except in rebuttal.

     Here, because there were no test results, the Commonwealth

was required to prove from other evidence that appellant drove

while under the influence of alcohol.    See Code § 18.2-266(ii);

Brooks, 224 Va. at 315, 295 S.E.2d at 804.    Therefore, the

prosecutor's comment was an accurate and valid statement to

prospective jurors advising them that chemical tests and the

statutory rebuttable presumption of intoxication were not going

to be used to prove that appellant was under the influence of

alcohol.    Furthermore, in her comments, the prosecutor made no

reference whatsoever to appellant's refusal to submit to the

chemical test as an explanation for the need to resort to other

evidence.   Accordingly, the trial court did not abuse its

discretion in denying appellant's motion.

     During rebuttal, the Commonwealth moved to admit into

evidence Galati's arrest report in which Galati noted that

appellant "stated 'I'm drunk.'"   Defense counsel objected on the


                               - 10 -
basis that Galati "can testify as to what he said about it, but

I don't believe the document comes into evidence, Your Honor."

The trial judge admitted it without further comment.   On appeal,

appellant contends the trial court erred in admitting the arrest

report because it contained inadmissible evidence regarding

appellant's refusal to take a blood alcohol test.   The back of

the arrest report contains two references to "Refused" in the

sections describing test locations.

     Appellant failed to make a proper objection or move that

the references to refusal be redacted.   "The Court of Appeals

will not consider an argument on appeal which was not presented

to the trial court."   Ohree v. Commonwealth, 26 Va. App. 299,

308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18.    Accordingly,

Rule 5A:18 bars our consideration of this question on appeal.

Moreover, the record does not reflect any reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

     Accordingly, we affirm the judgment of the trial court.

                                                          Affirmed.




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