                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia


BRUCE RANDALL ALLEN, S/K/A
 BRUCE RANDLE ALLEN
                                         MEMORANDUM OPINION * BY
v.           Record No. 2737-96-2     JUDGE JERE M. H. WILLIS, JR.
                                           FEBRUARY 10, 1998
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
                        Thomas V. Warren, Judge
             Amy M. Curtis (Theodore N. I. Tondrowski;
             Wayne R. Morgan, Jr.; Grennan & Tondrowski,
             on brief), for appellant.

             Michael T. Judge, Assistant Attorney General
             (Richard Cullen, Attorney General; Monica S.
             McElyea, Assistant Attorney General, on
             brief), for appellee.



     Bruce Randall Allen contends that the trial court erred:

(1) by failing to review statements made to law enforcement

officials by alibi witnesses, (2) in refusing to require the

Commonwealth to disclose said statements, and (3) in denying his

motion to disqualify the Commonwealth's Attorney.    We disagree,

and affirm the judgment of the trial court.

     On the evening of October 18, 1995, Allen and another man

went to the home of Alan and Ida Bowlin.    When Mr. Bowlin stepped

outside to talk with Allen, Allen struck him, causing him to fall

backwards.    Allen then stabbed Mr. Bowlin, dragged him into the

house, and stabbed him several more times.    Allen and the other
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
man then stabbed Mrs. Bowlin to death.   Before leaving, they

stole several hundred dollars from Mr. Bowlin's wallet.

     Allen was charged initially with capital murder, attempted

capital murder and robbery.    On May 29, 1996, a jury convicted

him of first-degree murder, attempted capital murder and robbery.

            I.   DISCOVERY OF ALIBI WITNESS STATEMENTS

     On March 19, 1996, Allen filed a motion seeking discovery of

all exculpatory evidence.   At the hearing on the motion, Allen

argued that he was entitled to statements made to the police by

witnesses who provided alibis for himself, for his codefendant

Larry Fowlkes, and for Sharddi Moore, who had been dismissed

previously as a codefendant.   The Commonwealth represented that

it possessed "no evidence . . . that anybody is alibied . . .

here for the complete period of time" during which the crimes

were believed to have occurred.
     The trial court ordered the Commonwealth to divulge the

identity of each person who "gave a partial, a full, or even a

small bit of alibi regarding . . ." either Fowlkes or Allen.

Subsequently, the Commonwealth provided Allen with the names and

addresses of persons identified as potential alibi witnesses.

     On April 18, 1996, Allen moved to compel discovery.    He

asserted that the statements of Fowlkes and Moore were

exculpatory because they showed that neither man was with Allen

on the night of the murder.    The Commonwealth's Attorney informed

the trial court that he knew of no exculpatory statements from



                                - 2 -
Fowlkes and Moore.    He stated that initially both Fowlkes and

Moore had denied involvement in the crimes, but that later Moore

had confessed his involvement to another person.    He stated that

Moore had given two further statements in which he claimed to

have been at two different locations during the same period of

time.    The Commonwealth's Attorney stated that Fowlkes claimed

that he had attended church until 9:00 p.m. on the evening in

question and that three witnesses supported his alibi.    The trial

court denied Allen's request for Fowlkes' and Moore's statements.

        In addition, Allen argued that the statements given to

police by Fowlkes' and Moore's alibi witnesses constituted

material and exculpatory evidence because they tended to

depreciate the value of testimony from the anticipated

Commonwealth's witnesses.    He requested disclosure of statements

made to the police by his potential alibi witnesses.    He set

forth the content of their expected statements.    Allen admitted

that the Commonwealth had provided him the names of his potential

alibi witnesses and that they were not unavailable to him.       The

trial court again denied Allen's motion that the Commonwealth be

required to disclose any statements made by potential alibi

witnesses.
                                  A.

        Allen contends that the trial court erred in failing to

review the alibi witness statements in camera.     We disagree.

        In Virginia, defendants have no general constitutional right



                                 - 3 -
to discovery in criminal matters.      However, Rule 3A:11 provides

for limited disclosure by the Commonwealth in felony cases.     In

addition, "suppression by the prosecution of evidence favorable

to the accused upon request violates due process where the

evidence is material either to guilt or to punishment . . . ."

Brady v. Maryland, 373 U.S. 83, 87 (1963).      See Code

§ 19.2-265.4.

     Generally, "[i]f in doubt about the exculpatory nature of

the material, a prosecutor should submit it to the trial court

for an in camera review to determine if it is exculpatory and
should be disclosed."   Lemons v. Commonwealth, 18 Va. App. 617,

621, 446 S.E.2d 158, 161 (1994).    Ultimately, however, "[w]hether

evidence is material and exculpatory and, therefore, subject to

disclosure under Brady is a decision left to the prosecution."

Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111

(1994) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987)).

     In Bowman, the Supreme Court noted that:
          The trial court's determination of the
          question whether it should undertake the
          review of the disputed material is a
          discretionary matter. Whether that
          discretion was properly exercised will depend
          on the specific factors of each case, such as
          the reasons given by the defense in
          justifying access to the disputed material,
          the time of the request, or the amount of
          material involved.


Id. at 135-36, 445 S.E.2d at 113 (citations omitted) (emphasis

added).   Noting discrepancies in the trial testimony and the

limited burden of reviewing a single document, the Supreme Court


                               - 4 -
concluded that the trial court abused its discretion by denying

Bowman's motion that it review the report in camera.     Id. at 136,

445 S.E.2d at 113.    The Court found further error in the trial

court's refusal to place the disputed evidence under seal in the

record on appeal.    Id.

     Allen did not move the trial court to review the witness

statements. 1   Nor did he move that the documents be placed under

seal for the record on appeal.    "[S]peculation that such

statements might contain 'potentially exculpatory evidence'

imposes neither a duty of disclosure upon the Commonwealth, nor a

duty of inspection in camera by the court."     Ramdass v.

Commonwealth, 246 Va. 413, 420, 437 S.E.2d 566, 570 (1993)

(citations omitted).    We need not rule upon the non-exercise of a

judicial power that was not invoked.     While the trial court could

have reviewed the statements in camera sua sponte, it was not

required to do so.

                                  B.

     Allen contends that the trial court erred in denying his

motion to require the Commonwealth's disclosure of any alibi

witness statements made to the police. We disagree.
               Under Brady v. Maryland, it is only the
     1
      In his discovery motion, Allen requested "[a]ny and all
reports and records which show that the witness has given an
inconsistent or contradictory statement with regard to any matter
in this case." At the pretrial hearing on the motion, Allen
asked that the trial court review the information in camera to
determine whether inconsistent statements existed. The trial
court denied the request, and Allen does not appeal that
decision.



                                 - 5 -
           suppression of "material" exculpatory
           evidence by the government that violates a
           defendant's due process rights. Evidence is
           "material" "only if there is a reasonable
           probability that, had the evidence been
           disclosed to the defense, the result of the
           proceeding would have been different." "A
           'reasonable probability' of a different
           result is [] shown when the Government's
           evidentiary suppression 'undermines
           confidence in the outcome of the trial'."


Hoke v. Netherland, 92 F.3d 1350, 1356 (4th Cir.), cert. denied,

117 S. Ct. 630 (1996) (citations omitted).
     Allen failed to secure the statements for the record on

appeal, or to request that they be placed under seal for our

review.   Thus, we cannot determine whether the Commonwealth

withheld evidence required to be disclosed under Brady. 2
          "A defendant cannot simply allege the
          presence of favorable material and win
          reversal of his conviction." Rather, a
          defendant must prove the favorable character
          of evidence he claims has been improperly
          suppressed. Speculative allegations are not
          adequate.


Hughes v. Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451, 461

(1990) (en banc) (citations omitted) (emphasis in original).
     "'[T]he Brady rule does not apply if the evidence in

     2
      "Even if the statement is favorable to the defendant on the
issue of guilt or punishment, it must also be material before the
defendant is entitled to a new trial." Humes v. Commonwealth, 12
Va. App. 1140, 1143, 408 S.E.2d 553, 555 (1991). Because we
cannot state that the extrajudicial statements are exculpatory,
we need not determine whether they are "material," despite their
potential utility in preparing and presenting Allen's case. See
White v. Commonwealth, 12 Va. App. 99, 102-04, 402 S.E.2d 692,
695, aff'd on reh'g en banc, 13 Va. App. 284, 410 S.E.2d 412
(1991).




                               - 6 -
question is available to the defendant from other sources.'"

United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990)

(citation omitted).     See Hoke, 92 F.3d at 1355-56.   In Wilson,

the defendant sought discovery of statements made by a potential

alibi witness to government officials.    He supported his

discovery request with an affidavit from the witness that

detailed her alleged interactions with government officials.

Wilson, 901 F.2d at 380-81.    The trial court denied his request.

 The Court of Appeals found no Brady violation because Wilson was
free to question the alibi witness in preparation for trial.      Id.

at 381.   The Court noted that:    "In situations such as this,

where the exculpatory information is not only available to the

defendant but also lies in a source where a reasonable defendant

would have looked, a defendant is not entitled to the benefit of

the Brady doctrine."     Id.

     The Commonwealth provided Allen the identities of his alibi

witnesses.    Allen acknowledged that he received the list and that

the witnesses were not unavailable to him.    He described in his

motion the contents of the alleged statements, and the alibi

witnesses' testimony at trial was consistent with those

assertions.

                 II.   DISQUALIFICATION OF PROSECUTOR

     In 1983, before he was elected Commonwealth's Attorney, Mayo

Gravatt represented Allen on charges resulting in his conviction

for breaking and entering and petit larceny.    Allen moved to



                                  - 7 -
disqualify Mr. Gravatt from prosecuting this case because they

had "shared an Attorney/Client privilege and Allen disclosed to

his Attorney, Gravatt, confidential information concerning the

case and himself."   Allen contends that the trial court abused

its discretion in denying this motion.     We disagree.

     "The decision whether to disqualify a Commonwealth's

attorney in a particular case is committed to the sound

discretion of the trial court."     Lux v. Commonwealth, 24 Va. App.

561, 569, 484 S.E.2d 145, 149 (1997). However:
          A trial court should grant a criminal
          defendant's motion to disqualify under
          circumstances where it can be reasonably
          inferred that the Commonwealth's attorney has
          either a personal interest in the outcome of
          the prosecution or an interest arising from
          his or her former representation of the
          defendant that conflicts with the fair minded
          exercise of his or her prosecutorial
          discretion.


Id. at 570-71, 484 S.E.2d at 149.      See Cantrell v. Commonwealth,

229 Va. 387, 329 S.E.2d 22 (1985).

     In Kilgore v. Commonwealth, 15 Va. App. 684, 426 S.E.2d 837

(1993), we held that "where a prosecutor previously has

represented a defendant it is reversible error for that attorney

to assist in a later prosecution of a former client on a matter

for which the attorney-client relationship has been established."
 Id. at 694, 426 S.E.2d at 842.     The "sacred relationship"

between an attorney and a client:      "'is severely compromised, if

not destroyed, when after representing a client, a lawyer joins

in the criminal prosecution of that client with respect to the



                               - 8 -
identical matter about which the attorney originally counseled

the client.'"   Id. (quoting United States v. Schell, 775 F.2d

559, 565 (4th Cir. 1985) (emphasis in original).

     Whether a Commonwealth's attorney should be disqualified

from prosecuting a defendant with whom the Commonwealth's

attorney had a prior attorney-client relationship in an unrelated

criminal matter is an issue of first impression in Virginia.

Several jurisdictions have required or upheld disqualification of

prosecutors who previously had an attorney-client relationship

with the defendant.
     In Mattress v. State, 564 S.W.2d 678 (Tenn. Crim. App.

1977), the court upheld the trial court's disqualification of the

prosecutor.   Because the prosecutor had previously represented

the codefendants on unrelated criminal charges, the Tennessee

court found that disqualification was proper and "adequate to

dispel any appearance of impropriety," even though the prosecutor

did not recall the prior representation.   Id. at 679.

     Similarly, in Reaves v. State, 574 So.2d 105 (Fla. 1991),
the Florida Supreme Court explained that disqualification was

required of a prosecutor "who previously has defended the

defendant in any criminal matter that involved or likely involved

confidential communications with the same client."   Id. at 107.

In Reaves, the prosecutor of a murder charge had represented the

defendant previously on grand larceny charges.   The larceny

charge involved issues involved in the murder case, particularly



                               - 9 -
mitigating factors to be considered during the penalty phase.

Id. at 106.   See also State v. Stenger, 760 P.2d 357 (1988)

(disqualifying prosecutor in capital case where defendant had

acknowledged uncharged crimes, drug use, and anti-social behavior

to the prosecutor during prior representation by the prosecutor

on unrelated matter).

     However, the majority of jurisdictions holds that "[w]here

the prosecutor's earlier representation of the defendant was in

an unrelated matter . . . disqualification is not required,

especially if a number of years have passed since the earlier
                   3
representation."       63C Am. Jur. 2d Prosecuting Attorneys § 27

(1984) (footnotes omitted).      See generally Allan L. Schwartz and

Danny R. Veilleux, Annotation, Disqualification of Prosecuting

Attorney in State Criminal Case on Account of Relationship with
     3
      See, e.g., Havens v. Indiana, 793 F.2d 143 (7th Cir. 1986);
United States v. Bolton, 905 F.2d 319, 322 (10th Cir. 1990);
Edwards v. State, 286 So.2d 308, 311 (Ala. Crim. App. 1973)
(holding that prosecutor need not recuse self in murder
prosecution when represented defendant on unrelated charge one
year earlier); Osborn v. District Court, Fourteenth Judicial
Dist., 619 P.2d 41 (Colo. 1980) (prosecution for burglary after
representing defendant thirteen years earlier on disorderly
conduct charge not "substantially related"); Park v. State, 170
S.E.2d 687 (Ga.), modified, 408 U.S. 935 (1969); State v.
Laughlin, 652 P.2d 690 (Kan. 1982); Cole v. Commonwealth, 553
S.W.2d 468, 472 (1977) (prosecution's use of conviction from
prior representation matter of public record); State v. Johnson,
310 So.2d 600 (La. 1975); People v. Vanderpool, 629 N.Y.S.2d 307
(N.Y. App. Div. 1995) (inference of impropriety stemming from
prior representation of defendant ten years earlier in unrelated
criminal matter not sufficient to warrant special prosecutor
absent proof of prejudice); Munguia v. State, 603 S.W.2d 876,
878-79 (Tex. Crim. App. 1980) (prosecutor that represented
defendant on rape charge not disqualified from assisting in
subsequent aggravated rape prosecution).



                                 - 10 -
Accused, 42 A.L.R.5th 581, § 4 (1996).

      For example, in Green v. State, 430 A.2d 1122 (Md. Ct. Spec.

App. 1981), the defendant contended that his conviction for theft

should be reversed because the prosecutor had represented him two

years earlier on charges resulting in his conviction for petit

larceny.    Id. at 1124.   Rejecting this argument, the Maryland

court held:
                 The mere fact that as a private attorney
            the prosecutor had once represented appellant
            in an unrelated case did not, standing alone,
            result in a conflict of interest such as to
            disqualify that attorney from acting as
            prosecutor in the instant case. On the
            record before us, there is no claim or
            indication that at the time the instant
            charge was brought against appellant there
            existed any attorney-client relationship
            between him and the prosecutor . . . . Nor
            is there any claim or indication that in
            investigating or prosecuting the present case
            the prosecutor made use of any confidential
            information he may have received from the
            appellant in the prior case.

Id.

      We find the majority view persuasive.    Attorneys litigate in

an adversarial system.     They are called upon to take various

positions in representing people under differing circumstances.

The Commonwealth's attorney must maintain impartiality and must

guard against any improper bias in securing a fair trial for the

accused.    See Kilgore, 15 Va. App. at 693, 426 S.E.2d at 842

(1993).    However, the Commonwealth's attorney must be free to

perform his or her prosecutorial duties, unless restrained by

actual impropriety or prejudice, or by a substantial risk



                                - 11 -
thereof.   See Lux, 24 Va. App. at 574, 484 S.E.2d at 151 (holding

that due process does not entitle defendant to trial free of the

appearance of impropriety).

     Nothing in the record suggests that Mr. Gravatt's

representation of Allen on an unrelated matter thirteen years

prior to this case imposed any impediment to his impartial

prosecution of this case.    Allen has made no representation or

showing that his relationship with Mr. Gravatt continued in any

respect, or that Mr. Gravatt possessed any confidential

information that would influence the performance of his duties.
     The only connection between the two unrelated proceedings

lies in the statutory mandate that "the Commonwealth shall

present the defendant's prior criminal convictions" during the

jury's sentencing proceeding.    See Code § 19.2-295.1.   While the

record does not disclose whether the jury received notice of

Allen's criminal history, we hold that the presentation of a

prior conviction, a ministerial act concerning a matter of public

record, did not involve revelation of confidential information.

The earlier representation created neither actual prejudice, nor

a suggestion of prejudice.

     The judgment of the trial court is affirmed.
                                                          Affirmed.




                                - 12 -
Benton, J., concurring.


     I concur in Parts IA and II.   I also concur in the portion

of Part IB which holds that because the record does not contain

the statements at issue we have no basis to determine whether a

Brady violation occurred.    Therefore, I concur in the judgment

affirming the convictions.




                               - 13 -
