Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Compton, S.J.

JOHN BYRD NELSON                       OPINION BY
                             SENIOR JUSTICE A. CHRISTIAN COMPTON
v.   Record No. 040028               November 5, 2004

COMMONWEALTH OF VIRGINIA

              FROM THE COURT OF APPEALS OF VIRGINIA

     In this criminal appeal, we have limited our review to

two issues:   Whether the Court of Appeals of Virginia erred in

ruling that the trial court properly reviewed sensitive

medical records in camera and refused to allow examination of

the records by the defendant; and, whether the Court of

Appeals erred in ruling that the trial court correctly

declined to conduct a hearing regarding allegations of a

juror's possible bias.

     Defendant John Byrd Nelson was found guilty in September

2002 by a jury in the Circuit Court of the City of Newport

News of the following felonies:   three counts of forcible

sodomy, in violation of Code § 18.2-67.1(A)(1); one count of

taking indecent liberties with a child under the age of 14

years, in violation of Code § 18.2-370(A)(1); and one count of

object sexual penetration of a child less than 13 years of

age, in violation of Code § 18.2-67.2(A)(1).
     When these offenses were committed on August 25, 2000,

the defendant was 69 years of age and the male victim was 12

years of age.

     Confirming the jury's verdicts, the trial court sentenced

defendant to a total of 45 years in prison in October 2002

judgment orders, from which the defendant appealed.    Upon

review, the Court of Appeals affirmed the convictions.    Nelson

v. Commonwealth, 41 Va. App. 716, 589 S.E.2d 23 (2003).       We

awarded defendant this appeal, limited to consideration of the

foregoing issues.

     First, the defendant contends that the "Court of Appeals

erred in affirming the trial court's refusal to make

subpoenaed records available to the defense."   The issue arose

in the following manner.

     Prior to trial, the defendant, by his attorney, requested

that a subpoena duces tecum under Rule 3A:12(b) be issued for

the production of all records in the possession of Dr. Alan

Rountree, a nonparty, pertaining to the mental and physical

examination and treatment of the victim.   The request, which

asked that the records be produced before the clerk of court,

stated that the documents "are relevant and material to the

proceedings."

     In an affidavit filed with the request, counsel asserted

that the victim "suffers from a mental condition which causes


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him to have visual and auditory hallucinations," for which Dr.

Rountree, a Hampton physician, had treated him following the

offenses.   The affidavit also asserted that access to the

medical records was "necessary for potential impeachment at

trial, a determination of [the victim's] competence to testify

as a witness, and otherwise in the defense of this case."

     Following production of the records, the court reviewed

them in camera at the request of the prosecutor, and ordered

them sealed.   The defendant then moved for "the opportunity to

review those records," relying on the provisions of Rule

3A:12(b).

     During a hearing on the defendant's motion, the trial

judge denied it.   Stating that she had "looked at these

records very carefully," the judge said "it would be highly

prejudicial to the victim to release that information."    She

noted that defense counsel would have "an ethical obligation"

to reveal the contents to his client, which, she said, would

not be "appropriate."   Concluding, the court said the records

were not "material at all" to defendant's case.   The sealed

documents are part of the record on appeal.

     Rule 3A:12(b) deals, in part, with a subpoena duces tecum

for production of documentary evidence before a circuit court.

As pertinent to this case, the subparagraph provides:




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          "Upon notice to the adverse party and on
     affidavit by the party applying for the subpoena
     that the requested writings . . . 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 . . . described in the
     subpoena. . . .

          "Any subpoenaed writings . . . , regardless by
     whom requested, shall be available for examination
     and review by all parties and counsel. Subpoenaed
     writings . . . shall be received by the clerk and
     shall not be open for examination and review except
     by the parties and counsel unless otherwise directed
     by the court. . . .

          "Where subpoenaed writings . . . are of such
     nature or content that disclosure to other parties
     would be unduly prejudicial, the court, upon written
     motion and notice to all parties, may grant such
     relief as it deems appropriate, including limiting
     disclosure, removal and copying."

     The defendant focuses on the Rule's language in the

second paragraph quoted above, while ignoring the

language of the third paragraph.    He emphasizes the

provision that the subpoenaed writings "shall be

available for examination and review by all parties and

counsel," and the provision that the records "shall not

be open for examination and review except by the parties

and counsel."   This language, he says, gives the parties

and counsel "an absolute right to review and examine

records produced."   According to defendant, the purpose

of the Rule's next clause in that paragraph, "unless

otherwise directed by the court," is to specify that the


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records are not to be open to the public unless otherwise

directed by the trial court.

     The defendant argues that the trial court

"apparently determined" that the Rountree records lacked

evidentiary value to the defense and "ruled that they

were, therefore, not material."       He opines that the trial

judge acceded to the prosecutor's "request for sealing

subpoenaed records and in camera inspection based upon

her view that the victim's privacy concerns were more

important than the preparation of Mr. Nelson's defense."

Nevertheless, the defendant contends, "not only Mr.

Nelson's attorney, but John Nelson himself was entitled

to review and examine the records of Dr. Rountree."

     According to the defendant, a victim's privacy

concerns are logically addressed by the showing of

materiality at the time of the trial court's threshold

decision to grant or deny issuance of the subpoena, and

by the specific provisions of the second paragraph which,

in defendant's words, "strictly limit any dissemination

of information produced other than to the parties and

counsel."

     Defendant argues that the Rountree records were

material to his defense.   He says that another physician,

who treated the victim prior to these offenses and who


                                  5
testified at defendant's first trial, which ended in a

hung jury, changed his testimony during the instant,

second trial.   That physician, according to the

defendant, revised his medical opinion based upon

information developed during the period of Rountree's

treatment of the victim, making those records vital to

the defense.

     Therefore, defendant contends, the trial court erred

in refusing his motion to examine the records, and the

Court of Appeals erred in failing to reverse the trial

court.   We disagree.

     The Rule's language in question is clear and

unambiguous.    In the second quoted paragraph of

subsection (b), subpoenaed writings are "available" for

examination and review by all parties to the case and

counsel.   And, consistent with that provision, the

writings "shall not be open for examination and review

except by the parties and counsel."   However, if

"otherwise directed by the court," persons who are not

parties to the case may be entitled to examine and review

the documents, in the trial court's discretion.     In other

words, as the Court of Appeals noted, that provision

generally prohibits nonparties' "access to subpoenaed




                                 6
documents, 'unless otherwise directed by the court.' "

Nelson, 41 Va. App. at 727, 598 S.E.2d at 28.

     The Rule's third quoted paragraph, however, applies

under the circumstances of this case.   In plain language,

the paragraph means that when subpoenaed documents "are

of such nature or content that disclosure to other

parties would be unduly prejudicial," the trial court, in

the exercise of its discretion "as it deems appropriate,"

may limit disclosure.   The trial court's power to limit

applies to the persons directly involved in the case, and

not just nonparties as the defendant contends.

     Manifestly, as the Court of Appeals said, the

foregoing provision "makes sense only if it refers to the

court's authority to limit the access of the parties in

the case, as people who are not parties generally are not

allowed access to any subpoenaed documents" under the

second paragraph.   Id. at 726, 598 S.E.2d at 28.

     In the exercise of discretion to limit or deny

access, a trial court must determine whether the

documents not disclosed are material to the case of the

party moving for access.   Contrary to the defendant's

argument, a threshold determination of materiality is not

made at the time the subpoena duces tecum is issued.

Indeed, when a party requests issuance of such a


                                7
subpoena, the trial court is not aware of the contents of

the subpoenaed writings.   As the Attorney General argues,

"the threshold showing of materiality necessary for the

issuance of the subpoena does not automatically translate

into the materiality that compels a court to turn the

documents over to the requesting party."

      In the present case, as requested by the Attorney

General (but not the defendant), we have examined the

sealed documents.   We agree with the trial court and the

Court of Appeals that they are not material to the

defendant's case and that he has not been prejudiced by

their non-disclosure.   See id. at 728-29, 589 S.E.2d at

29.

      The second issue we shall address relates to

possible juror bias.    During the second day of

defendant's trial, the prosecutor reported to the judge

that when "court was over yesterday," he had received a

voice mail message from the foster mother of the victim.

The prosecutor represented that she said she knew one of

the jurors who was her "direct supervisor" at the foster

mother's place of employment "over two years ago" and

before the victim "came to live with her."

      The foster mother told the prosecutor that "at no

time" did the victim "ever meet" or "come in contact"


                                 8
with the juror, and that the juror does not know the

victim.   She stated to the prosecutor that she saw the

juror "in the courtroom yesterday," and that the two

"made eye contact and smiled."   At that time, the foster

mother said, the victim was not sitting with her, but was

sitting with his father and stepmother.

     The foster mother told the prosecutor that she

"doesn't even believe [the juror is] aware of any

relationship between her" and the victim.   The prosecutor

related to the court:    "She's not a witness in this case

but she was concerned that it might mean something."     The

prosecutor reminded the court that during voir dire, when

the victim "stood up with the other witnesses, all the

jurors indicated that they did not know any of the

witnesses."

     Following the prosecutor's report, defendant's

attorney stated:   "I think the Court should inquire of

the juror about the matter;" later, counsel moved for a

mistrial.   The trial court denied the request and the

motion.

     On appeal, defendant "asserts that under the facts

of this case he was entitled to have the Court make

inquiry of the juror."   He argues that the "Court of

Appeals erred in affirming the trial court's failure to


                                 9
inquire or otherwise act with respect [to] the

qualifications of a juror known personally by the foster

mother of the alleged victim, thus depriving the

defendant of his right to an unbiased and impartial

jury."   We disagree.

     We concur with the Court of Appeals' view that the

defendant's allegation of possible juror bias is

supported only by a "series of speculative links:" the

possible recognition by the juror of the foster mother,

which possibly could lead to an understanding that she

was the victim's foster parent, which could have caused

the juror to recall possibly positive impressions of the

foster mother from a past working relationship, and those

impressions could have possibly biased the juror against

the defendant, such that the juror would "ignore the

trial court's instructions to evaluate the evidence and

apply the law impartially."   Nelson, 41 Va. App. at 730-

31, 589 S.E.2d at 30.

     In sum, the alleged connection between the foster

mother and the juror was too tenuous to require the court

to conduct a hearing mid-trial.     There was no abuse of

discretion by the trial court, and the Court of Appeals

correctly so ruled.




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     Consequently, the judgment of the Court of Appeals

will be

                                                 Affirmed.




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