                               COURT OF APPEALS OF VIRGINIA


Present: Judges McClanahan, Petty and Powell
Argued at Richmond, Virginia


DARRYL A. MITCHELL
                                                              MEMORANDUM OPINION * BY
v.     Record No. 2606-07-4                                    JUDGE WILLIAM G. PETTY
                                                                    APRIL 21, 2009
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Dennis J. Smith, Judge

                 Anna K. Livingston (The Law Offices of Yeager & Thelin, P.C., on
                 briefs), for appellant.

                 Benjamin H. Katz, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       A jury convicted appellant Darryl A. Mitchell of robbery in violation of Code § 18.2-58. On

appeal, Mitchell argues that his conviction should be reversed because the trial court erroneously

denied his request for an in camera review of the police file following the trial court’s determination

that there had been a Brady violation in this case. 1 For the reasons explained below, we disagree

with Mitchell and affirm his conviction.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
           The question Mitchell presents on appeal is:

                 Did the trial court err on January 19, 2007, when it denied
                 Defendant’s motion for in camera review after finding a clear
                 Brady violation before the trial and which error was compounded
                 when it denied a hearing on said exculpatory evidence requested
                 during post-trial motions?

Because we conclude that the trial court did not err in denying Mitchell’s motion for an in
camera review, we need not address the second part of his question presented.
                                                 I.

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite only those facts and incidents of

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.

On appeal, we view those facts and incidents “in the light most favorable to the Commonwealth,

the party prevailing below, giving it all reasonable inferences fairly deducible from the

evidence.” Bowling v. Commonwealth, 51 Va. App. 102, 104, 654 S.E.2d 354, 355 (2007)

(citing Ragland v. Commonwealth, 16 Va. App. 913, 915, 434 S.E.2d 675, 676-77 (1993)).

On August 31, 2005 the victim was working as a taxicab driver. The victim picked up an individual

he later identified at trial as Mitchell from BWI airport in Baltimore and drove him to a location in

Fairfax, Virginia. When they arrived at Mitchell’s destination, Mitchell and the victim conversed

for a few moments before Mitchell began punching the victim repeatedly. Mitchell took the

victim’s cell phone and $143 from the victim’s shirt pocket. Mitchell continued to assault the

victim, punching him several times in the kidneys and kicking him before running away.

       After Mitchell ran away, the victim saw another individual in the area, who police later

identified as Justin Bolden. After police arrived, the officers brought Bolden over to the victim and

asked whether Bolden was the person who had robbed him. The victim stated that he was not, but

that he had been in the area immediately after the robbery.

       Detective Fulk, the investigating officer, eventually arrested Bolden based on his belief that

Bolden was “involved” in the robbery and “there” at the time of the offense. The detective also

believed that Bolden was an accessory to the robbery, despite the victim’s assurance that it was

Mitchell who had committed the crime. Eventually, Bolden told Detective Fulk that he was a friend

of Mitchell’s and had allowed Mitchell to hide in his home after the robbery; he had not told the

detective this information earlier because he did not want to “rat on [his] friend.” The

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Commonwealth subsequently dropped all of the charges against Bolden, and Bolden’s counsel

testified at Mitchell’s trial that there was no firm agreement reached to drop the charges in exchange

for Bolden’s testimony against Mitchell and that Bolden knew that the charges against him could be

reinstated.

        After Bolden was released, the victim identified Mitchell’s picture in a photographic array.

Following Mitchell’s indictment for robbery, his counsel submitted a written discovery request to

the Commonwealth’s Attorney on December 6, 2006. On January 4, 2007, Mitchell also filed a

motion to compel exculpatory evidence, seeking exculpatory evidence relating to Bolden’s arrest for

the robbery. Mitchell also requested, as part of his motion to compel, that the trial court “take the

Commonwealth’s file in this matter and complete an in camera review to insure that nothing further

has been withheld regarding this allegation.” In response, the Commonwealth filed a letter, dated

January 9, 2007, detailing Detective Fulk’s investigation, including excerpts from the detective’s

report. The letter explained the events that led to Bolden’s arrest and the charges against him later

being dismissed.

        Following a hearing on Mitchell’s motion to compel, the trial court determined that the

information regarding Bolden’s earlier arrest for the robbery was exculpatory. The trial court

entered a discovery order requiring the Commonwealth to disclose all Brady materials on January

25, 2007, but it denied Mitchell’s motion to compel and did not perform an in camera review of the

Commonwealth’s file. On January 30, 2007, the Commonwealth filed a supplemental response to

Mitchell’s discovery request, which detailed the circumstances of Bolden’s arrest.

        On March 2, 2007, the trial court denied Mitchell’s motion to suppress his identification by

the robbery victim. At the March 2 hearing, Mitchell had the opportunity to question Detective

Fulk regarding his investigation, including the initial arrest of Bolden for the robbery. On March

23, 2007, the trial court denied Mitchell’s motion to suppress statements he made to law

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enforcement. On March 27, 2007, a jury convicted Mitchell of robbery and imposed a sentence of

five years’ imprisonment. During the jury trial, Mitchell again had the opportunity to question

Detective Fulk regarding his conduct during the investigation, as well as the victim’s identification

of Mitchell as the robber and Bolden’s arrest and release. On May 3, 2007, Mitchell moved the trial

court to either set aside the verdict or grant him a new trial. The court took the matter under

advisement and ultimately denied the motion on September 7, 2007. The trial court entered the

final order in this case on October 18, 2007. This appeal followed.

                                                  II.

        Mitchell has raised a narrow issue on appeal: whether the trial court erred on January 19,

2007 when it denied his motion for an in camera review of the investigatory file after the trial court

determined that a Brady violation had taken place. Accordingly, we need not address whether the

information regarding Bolden’s arrest was material—instead, we need only determine whether the

trial court had a duty on these facts to conduct an in camera review of the Commonwealth’s entire

file. After careful consideration of the record and relevant law, we conclude that it did not.

        Although the Constitution does not accord a defendant the right of unrestricted access to the

government’s files, see Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987), a criminal defendant

has a due process right to “evidence favorable to [him] where the evidence is material to either guilt

or to punishment . . . .” Brady v. Maryland, 373 U.S. 83, 87 (1963). “If the defendant does not

receive [exculpartory] evidence, or if the defendant learns of the evidence at a point in the

proceedings when he cannot effectively use it, his due process rights as enunciated in Brady are

violated.” Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111-12 (1994) (citations

omitted). Because the responsibility for determining whether evidence is exculpatory lies with the

prosecution, the parties may frequently find themselves “at an impasse in their respective views of

the nature of the evidentiary materials.” Id.

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        When there is a dispute over the nature of the evidence, the trial court may, in its discretion,

agree to review the disputed material in camera. Id. “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 (citing United States v. Agurs, 427 U.S. 97, 106 (1976);

State v. Hardy, 235 S.E.2d 828, 841-42 (N.C. 1977); Daniel J. Capra, Access to Exculpatory

Evidence: Avoiding the Agurs Problems of Prosecutorial Discretion & Retrospective Review, 53

Fordham L. Rev. 391 (1984)).

        A court does not, however, abuse its discretion when it declines a request to review an

investigatory file simply because it might contain exculpatory evidence: “The adversary system

does not permit either party to ‘engage in groundless fishing expeditions, with the [trial] courts as

their unwitting (and perhaps unwilling) agents.’” United States v. Trevino, 89 F.3d 187, 192 (4th

Cir. 1996) (quoting United States v. Zolin, 491 U.S. 554, 571 (1989)). Mitchell recognizes this

principle in his brief, noting that “[i]t is well established that a criminal defendant may not require a

trial court to comb through the investigative materials of the prosecution with the speculative hope

that something of value may be found. The defendant must first establish a reasonable basis for his

claim that the records to be reviewed contain material evidence.” See Hughes v. Commonwealth,

18 Va. App. 510, 526, 446 S.E.2d 451, 461 (1994) (A criminal defendant asserting a Brady

violation must “prove the favorable character of evidence he claims to have been improperly

suppressed. Speculative allegations are not adequate.” (emphasis in the original) (citations

omitted)).

        Here, the record does not contain any information to establish that exculpatory evidence was

withheld from Mitchell. Furthermore, Mitchell provided no reason—beyond his speculative belief

that there must have been more information in the file—for the trial court to conduct an in camera

                                                  -5-
review. Cf. Bowman, 248 Va. at 136, 445 S.E.2d at 113 (holding that trial court abused its

discretion in refusing a request for an in camera inspection of a specific police report where there

was “a legitimate basis for [defendant’s] belief that the report might contain additional material

exculpatory evidence”). Mitchell argues the trial court should have read through the

Commonwealth’s file to determine what, if any, other exculpatory information related to Bolden’s

arrest existed. Mitchell’s theory seems to be that because Bolden was originally arrested, there must

have been more information pointing to his guilt in the file than that which the Commonwealth

disclosed and that therefore the trial court abused its discretion in failing to review the file. This is

mere conjecture. Accordingly, we hold that the trial court did not abuse its discretion in refusing to

conduct an in camera review of the Commonwealth’s file.

        Further, even after cross-examining Detective Fulk twice, Mitchell is unable to point to

specific exculpatory evidence supporting his claim. The record shows that on March 2, 2007, the

trial court heard Mitchell’s motion to suppress identification. At that time, defense counsel

questioned Detective Fulk regarding the circumstances of Bolden’s arrest, including whether the

victim ever identified Bolden as the robber, various discrepancies in the police reports, and the

detective’s basis for arresting Mr. Bolden in the first place. At trial, Mitchell called the detective as

a witness, and again questioned him extensively regarding Bolden’s arrest. Thus, whatever

exculpatory evidence that existed pertaining to Bolden’s arrest was presented to the jury.

                                                   III.

        While it may be “difficult for [Mitchell] to imagine a robbery investigation conducted over

the course of almost two years, by a professional experienced police officer, who would not record

any of the information of that investigation, depending instead on his memory,” Defendant’s Notice

& Motion For A New Trial at 5, that mere belief is not sufficient to establish an affirmative duty on

the part of the trial court to cull through the Commonwealth’s file. For the foregoing reasons, we

                                                   -6-
conclude that the trial court did not abuse its discretion when it refused to conduct an in camera

review of the Commonwealth’s file in this case.

                                                                                       Affirmed.




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