                   COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia


DAVID WESLEY SPENCER
                                                             *
                                          MEMORANDUM OPINION BY
v.   Record No. 2207-01-2                  JUDGE G. STEVEN AGEE
                                              OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      Michael C. Allen, Judge

           Steven D. Benjamin (Betty Layne DesPortes;
           Benjamin & DesPortes, P.C., on briefs), for
           appellant.

           Stephen R. McCullough, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     David Wesley Spencer (Spencer) was convicted by a jury in

the Chesterfield County Circuit Court of aggravated sexual

battery, in violation of Code § 18.2-67.3, and object sexual

penetration, in violation of Code § 18.2-67.2.    On appeal,

Spencer raises eight issues which can be consolidated into four

areas:   (1) Whether Spencer was erroneously denied access to the

CPS file; (2) whether the Commonwealth failed to provide Spencer

with exculpatory evidence prior to his trial; (3) whether the

trial court erred in limiting the testimony of Dr. Coleman; and

(4) whether the trial court erred in failing to strike four




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
jurors for cause.   Upon review of these issues, we affirm the

decisions of the trial court and affirm Spencer's convictions. 1

                    I.   ACCESS TO THE CPS FILE

     Spencer contends the trial court and this Court have erred

by refusing him access to the sealed CPS file.    We find no error

in the trial court's decisions or ours.

     First, Spencer contends the denial of pretrial access to the

CPS file, which contained an audiotape and transcript of the CPS

interview with the victim, prevented him from effectively

preparing for his trial and, thus, he had a right to review the

material in the file.    We disagree.
               "[T]here is no general constitutional
          right to discovery in a criminal case."
          Spencer v. Commonwealth, 238 Va. 295, 303,
          384 S.E.2d 785, 791 (1989), cert. denied, 493
          U.S. 1093 (1990) (citations omitted). Rule
          3A:11 provides for limited pretrial discovery
          by a defendant in a felony case. Hackman v.
          Commonwealth, 220 Va. 710, 713-14, 261 S.E.2d
          555, 558 (1980).

Ramirez v. Commonwealth, 20 Va. App. 292, 294-95, 456 S.E.2d 531,

532 (1995).   Rule 3A:11 does not provide for the discovery of

material compiled by an agency involved in the investigation of a

criminal allegation and "statements made to [the agency's]

employees and their reports, memoranda, and internal documents




     1
       As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
                               - 2 -
[are] not discoverable."     Id. at 296, 456 S.E.2d at 533

(citing Rule 3A:11(b)(2)).

       As we held in Ramirez, CPS is an agent of the Commonwealth

when it investigates abuse complaints.      Pursuant to Code

§ 63.1-248.6(E)(5), CPS was required to investigate the victim's

complaint, and upon suspicion of sexual abuse, it was required to

report to the Commonwealth's Attorney for Chesterfield County and

provide information to him.    Under the circumstances of this

case, CPS was involved in the investigation of the sexual abuse

allegation and was, therefore, an agent of the Commonwealth for

purposes of Rule 3A:11(b)(2).     See id.   Therefore, pursuant to

Rule 3A:11(b)(2), the statements made to CPS and its reports,

interview documentation and internal documents were not

discoverable.   Accordingly, the trial court did not err in

refusing to permit Spencer access to the CPS file.

       Next, Spencer argues the trial court erred in denying his

motion to expand the protective order to permit his counsel to

disclose the contents of the CPS file to others associated with

the preparation of his defense.    He contends the trial court's

refusal prevented him from proffering evidence necessary to

demonstrate the Commonwealth's alleged failure to provide him

with all exculpatory evidence.    We find the trial court did not

err.

       The trial court vacated the initial protective order and

required counsel to surrender all copies of materials he obtained

under the terms of the protective order.     The trial court found

that it had "improvidently entered" the initial protective order

allowing post-trial access to the CPS file because the pretrial

                                 - 3 -
ruling was that the file would be kept under seal and the court

would review its contents in camera for exculpatory evidence.        In

other words, the trial court erroneously entered the initial

protective order which permitted defense counsel access to the

CPS file to which he was never entitled.       Because the trial court

indicated it "improvidently entered" the original protective

order it did not err in denying Spencer's motion to expand the

protective order, which it vacated.

     Lastly, Spencer argues this Court erred in refusing to

permit his appellate counsel access to the sealed materials in

the record.    He contends our denial of his motion to permit the

requested access has prevented him from effectively presenting

the issues to this Court.     We disagree.     We informed Spencer that

we would review the sealed materials in camera to determine
whether the trial court erred in assessing whether the CPS file

contained exculpatory evidence as he contends.       As the following

analysis reflects, we have reviewed the material and find no need

to reconsider Spencer's appellate motion requesting access.

             II.   FAILURE TO PROVIDE EXCULPATORY EVIDENCE

     Spencer next contends the Commonwealth violated his "rights

to cross-examination, compulsory process, effective assistance of

counsel, and due process by failing to disclose exculpatory

evidence."    He further contends the trial court erred in refusing

to grant him a new trial because the foregoing rights were

violated.    While our review of the record reveals some arguably

exculpatory evidence was not provided to Spencer, we find the

trial court did not err in refusing to grant Spencer a new trial.

                            A.   Due Process

                                  - 4 -
     Due process requires that the Commonwealth disclose all

material exculpatory evidence to an accused.      Jefferson v.

Commonwealth, 27 Va. App. 477, 486, 500 S.E.2d 219, 224 (1998)

(citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).      Exculpatory

evidence is evidence that is favorable to the accused and

includes impeachment evidence.      United States v. Bagley, 473 U.S.

667, 676 (1985); Robinson v. Commonwealth, 231 Va. 142, 150, 341

S.E.2d 159, 164 (1986).      The withholding of information from a

defendant constitutes a due process violation, "irrespective of

the good faith or bad faith of the prosecution," Brady, 373 U.S.
at 87, when the information is "(1) either directly exculpatory

or [has] impeachment value, (2) suppressed by the government, and

(3) material."    Lockhart v. Commonwealth, 34 Va. App. 329, 345,

542 S.E.2d 1, 8 (2001) (citing Strickler v. Greene, 527 U.S. 263,

280-81 (1999)).

     Our review of the record reveals the Commonwealth failed to

disclose to Spencer that the victim, in his interview with CPS,

(1) informed CPS that he saw Spencer's genitalia one time and

that was when the victim saw Spencer in the shower; (2) initially

answered in the negative when asked whether Spencer touched him

"anywhere besides your pee pee"; and (3) initially answered in

the negative when asked, in general, whether Spencer had ever
                        2
touched his backside.       Assuming, but not deciding, the foregoing


     2
       These statements are contained in the interview transcript
on pages 16 and 21. We found no exculpatory evidence on the
"missing pages" of the transcript (pages 8-13). In his
post-trial motion for a new trial, Spencer contended he should
have been informed by the Commonwealth of allegedly leading
questions used by CPS when it interviewed the victim as
evidenced in the interview transcript. We disagree. Spencer
                              - 5 -
to be exculpatory evidence that should have been disclosed, we do

not find it to be material.

     "'[I]mplicit in the requirement of materiality is a concern

that the suppressed evidence might have affected the outcome of

the trial.'"   Bagley, 473 U.S. 667, 674-75 (1985) (quoting United

States v. Agurs, 427 U.S. 97, 104 (1976)).

          [E]vidence 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" is a probability
          sufficient to undermine confidence in the
          outcome.
Id. at 682.

          The reviewing court should assess the
          possibility that such effect might have
          occurred in light of the totality of the
          circumstances and with an awareness of the
          difficulty of reconstructing in a post-trial
          proceeding the course that the defense and
          the trial would have taken had the defense


could have gotten this information elsewhere by interviewing or
examining the CPS agent, Ms. Evans or Detective Pritchard. See
Epperly v. Booker, 997 F.2d 1 (4th Cir. 1993). For reasons
known only to Spencer, he failed to pursue these options.
Spencer also contends he should have been informed of the
victim's inability to recall events. However, our review of the
record reveals no such inability related to the charges against
Spencer. While the victim was unable to recall exact dates, he
could describe the time of year and his age; and while he could
not recall exactly what Spencer did immediately upon touching
him, he could describe where on his anatomy Spencer initiated
contact and how it felt emotionally and physically. These
statements, and the inability of the victim, a child, to
remember minute details, are not exculpatory and, therefore, the
Commonwealth was not required to reveal them to Spencer.
Finally, Spencer contends he should have been informed of the
unduly suggestive questions posed to the victim. Assuming, but
not deciding, that such information is discoverable, we find
this complaint to be unmeritorious as the audiotape does not
reflect any undue influence or impermissible leading questions.

                               - 6 -
             not been misled by the prosecutor's
             incomplete response.

Id. at 683.    However, "[t]he mere possibility that an item of

undisclosed information might have helped the defense . . . does

not establish 'materiality' in the constitutional sense."       Agurs,

427 U.S. at 109-10.

       Our review of the entire record does not convince us that if

the additional evidence had been revealed there is a reasonable

probability the jury's verdict would have been different.   The

fact that the victim stated he saw Spencer's genitalia once when

he saw him in the shower does not exclude other possible

instances.    In addition, the victim testified that anal

penetration occurred while he was lying down with Spencer behind

him.
       The fact that the victim initially denied Spencer ever

touched him "anywhere besides [his] pee pee" is not material

because the victim admitted at trial that he had previously

denied that anal penetration occurred.    The jury was, therefore,

aware that the victim had been inconsistent in his past
recollections of the events.    The jury also heard from two other

witnesses who presented evidence that Spencer sexually assaulted

the victim.    The victim's sister testified that she had

witnessed, more than once, Spencer touch the victim "underneath

his pants."    Dr. Foster testified that she personally examined

the victim and performed a colonoscopy and its findings were

"consistent with rectal trauma or penetration of the rectum."

       Because the possible exculpatory evidence was not material,

there was no due process violation that warranted a new trial

                                 - 7 -
and, therefore, the trial court did not err in denying Spencer's

request for a new trial.

                 B.   Other Alleged Rights Violations

     Spencer also alleges that the trial court's denial of his

request to view the CPS file and the Commonwealth's failure to

disclose all of the victim's statements which were possibly

exculpatory to the defense, violated his rights under the Sixth

Amendment's Confrontation Clause and the guarantee of compulsory

process. 3   For the following reasons, we disagree.
                 1.   The Right to Confront Witnesses

     Spencer argues, implicitly, that the failure to disclose

information contained in the CPS file that might have made

cross-examination more effective undermines the Confrontation

Clause's purpose of increasing the accuracy of the truth-finding

process at trial.     This argument, however, fails to recognize the

fact that the Confrontation Clause is not a constitutionally

compelled rule for pretrial discovery.    The right to question

adverse witnesses, which the right to confrontation guarantees,
see Barber v. Page, 390 U.S. 719, 725 (1968), "'does not include

the power to require the pretrial disclosure of any and all

information that might be useful in contradicting unfavorable

testimony.'"    Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d

114, 124 (1996) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 53

(1987) (plurality)).    The rights guaranteed by the Confrontation



     3
       Spencer also argues that the circumstances of this case
impeded his right to the effective assistance of counsel. This
claim, however, is not reviewable on direct appeal. Goins v.
Commonwealth, 251 Va. 442, 455 n.2, 470 S.E.2d 114, 124 n.2
(1996).
                               - 8 -
Clause are "'satisfied if defense counsel receives wide latitude

at trial to question witnesses.'"       Id.

      Spencer does not allege, nor does the record reflect, that

the trial court limited defense counsel's cross-examination of

the Commonwealth's witnesses.   Thus, Spencer's right to confront

the witnesses against him was not denied by the trial court's

discovery ruling or the Commonwealth's failure to provide him

with the possible exculpatory evidence that we have concluded was

not material.   See id.
                 2.   The Right to Compel Witnesses

      Spencer also alleges that his rights under the Sixth

Amendment's compulsory process clause have been violated under

the circumstances of this case.   Again, we disagree.

      The compulsory process clause provides a defendant with

government assistance in compelling the presence of favorable

witnesses at trial.    Ritchie, 480 U.S. at 56.   This right has

never been interpreted to include the right to discover the

identity of witnesses or to require the Commonwealth to produce

witnesses who might give exculpatory testimony.    Further, we have

already held that no due process violation occurred in this case,

and the right of compulsory process "provides no greater

protections in this area than those afforded by due process."
Id.

      The denial of Spencer's request to view the CPS file and the

Commonwealth's failure to inform Spencer of the immaterial

exculpatory evidence in the file were unrelated to Spencer's

right to obtain government assistance in compelling the

attendance of witnesses.    See id.; Goins, 251 Va. at 456-57, 470

                                - 9 -
S.E.2d at 124.   The record reflects no impediment to Spencer

calling any witness of his choosing.    Thus, Spencer's right of

compulsory process was not violated.



          III.   LIMITATIONS UPON DR. COLEMAN'S TESTIMONY

     Spencer also contends the trial court erred in limiting the

expert witness testimony of Dr. Coleman.    We disagree.

               "Expert testimony is appropriate to
          assist triers of fact in those areas where a
          person of normal intelligence and experience
          cannot make a competent decision." Swiney v.
          Overby, 237 Va. 231, 233, 377 S.E.2d 372, 374
          (1989). The expert testimony must be
          relevant, and the trial judge must determine
          whether the subject matter of the testimony
          is beyond a lay person's common knowledge and
          whether it will assist the trier of fact in
          understanding the evidence or in determining
          a fact in issue. See Farley v. Commonwealth,
          20 Va. App. 495, 498-99, 458 S.E.2d 310, 312
          (1995). "The admission of expert testimony
          is committed to the sound discretion of the
          trial judge, and we will reverse a trial
          court's decision only where that court has
          abused its discretion." Brown v. Corbin, 244
          Va. 528, 531, 423 S.E.2d 176, 178 (1992).

Utz v. Commonwealth, 28 Va. App. 411, 423-24, 505 S.E.2d 380, 386

(1998).

     The trial court found Spencer's proffered reason for

Dr. Coleman's testimony, to explain the "suggestibility" of

children, to be unnecessary in this case.   We do not find this

was an abuse of discretion.   Dr. Coleman had not met the victim,

Detective Pritchard or Jolene Evans.    He had no knowledge of the

interview techniques used in the interview with the victim and

made no inquiry in that regard.   Accordingly, the trial court did




                               - 10 -
not abuse its discretion in limiting Dr. Coleman's testimony to

the medical records that he had reviewed. 4

                             IV.   THE JURORS

     Lastly, Spencer contends the trial court erred in denying

his motions to strike jurors Andrews, Clark, Trevey and Allmon

for cause.    We disagree.

     An accused is constitutionally guaranteed the right to a

trial by "an impartial jury."      U.S. Const. amends. VI, XIV; Va.

Const. art. I, § 8; see Code § 8.01-358; Rule 3A:14.       "Trial

courts, as the guardians of this fundamental right, have the duty

to procure an impartial jury."       Griffin v. Commonwealth, 19 Va.

App. 619, 621, 454 S.E.2d 363, 364 (1995).      Accordingly, "the

trial judge must probe the conscience and mental attitude of the

prospective jurors to ensure impartiality."       Id.   A juror holding

"a preconceived view that is inconsistent with an ability to give

an accused a fair and impartial trial, or who persists in a

misapprehension of law that will render him incapable of abiding

the court's instructions and applying the law, must be excluded

for cause."    Sizemore v. Commonwealth, 11 Va. App. 208, 211, 397

S.E.2d 408, 410 (1990).

     "[I]n determining whether a prospective juror should have

been excluded for cause, we review the entire voir dire, rather

than a single question and answer."       Barnabei v. Commonwealth,

252 Va. 161, 173, 477 S.E.2d 270, 277 (1996).      Whether a juror is

     4
       Spencer recites a claim that the CPS worker "interjected
suggestions of dreams" to support his argument on the need of
expert testimony regarding the suggestibility of children.
However, the single transcript reference to "in this dream"
appears to be a transcriptional error as the audiotape reflects
the phrase to be "in this room."
                              - 11 -
impartial is a question of historical fact.      See Wainwright v.

Witt, 469 U.S. 412, 428 (1985).      On appeal, a trial court's

decision to seat a juror is entitled to great deference, and the

decision will not be overturned unless the error is manifest.

See McGill v. Commonwealth, 10 Va. App. 237, 241, 391 S.E.2d 597,

600 (1990).

     A review of the entire voir dire fails to show that the

trial court abused its discretion by refusing to strike the four

jurors for cause.
                              A.   Andrews

     While Spencer contends the trial court abused its discretion

in not striking Andrews for cause after the juror revealed that

she had learned of the case through media reports, the fact that

she had heard of the case was not sufficient reason to require

her to be stricken for cause.

     "Even though a prospective juror may hold preconceived

views, opinions, or misconceptions, the test of impartiality is

whether the venireperson can lay aside the preconceived views and

render a verdict based solely on the law and evidence presented

at trial."     Griffin, 19 Va. App. at 621, 454 S.E.2d at 364.    The

rationale behind this rule of law has been stated by the Supreme

Court of the United States:

             In these days of swift, widespread and
             diverse methods of communication, an
             important case can be expected to arouse the
             interest of the public in the vicinity, and
             scarcely any of those best qualified to serve
             as jurors will not have formed some
             impression or opinion as to the merits of the
             case. This is particularly true in criminal
             cases. To hold that the mere existence of
             any preconceived notion as to the guilt or
             innocence of an accused, without more, is

                                   - 12 -
             sufficient to rebut the presumption of a
             prospective juror's impartiality would be to
             establish an impossible standard. It is
             sufficient if the juror can lay aside his
             impression or opinion and render a verdict
             based on the evidence presented in court.

Irvin v. Dowd, 366 U.S. 717, 722-23 (1961).      Therefore, "[t]he

constitutional guarantee of an impartial jury does not

contemplate excluding those who have read or heard news accounts

concerning the case or even exclusion of those who may have

formed an opinion based on such accounts."       Wilmoth v.
Commonwealth, 10 Va. App. 169, 173, 390 S.E.2d 514, 516 (1990).

     The prospective juror, Andrews, acknowledged awareness of

accounts of the crime in the media but her awareness was

coextensive with the brief summary of allegations provided by the

trial court at the commencement of voir dire.      This juror

informed the court that the information would not cause her to

prejudge the case and would not prevent her from giving fair and

impartial consideration to the evidence presented by both

parties.   She also indicated it would not cause her difficulty in

applying the presumption of innocence and would not affect her

ability to sit impartially in the case.

     Upon review of the voir dire as a whole, we find that the
trial judge did not err by refusing to strike Andrews for cause.

                         B.   Clark and Trevey

     We also find no merit to Spencer's contention that jurors

Clark and Trevey should have been stricken for cause because they

both had an emotional reaction to the charges which they

initially indicated made them unsure whether they could be

impartial.    Our review of the entire voir dire, not just isolated


                                 - 13 -
statements, reveals the trial court did not abuse its discretion

in refusing to strike these two jurors for cause.

     Our review found no evidence creating a reasonable doubt as

to these two jurors' qualifications to serve fairly and

impartially.   Neither juror indicated to the trial court that he

or she held a preconceived view that was inconsistent with an

ability to give Spencer a fair and impartial trial, or that he or

she was incapable of following the court's instructions.

     While Clark indicated that she had experienced "a visceral

reaction" upon learning of the charges against Spencer, which she

felt might cause her difficulty, she indicated that she believed

Spencer was innocent until proven guilty.    She stated she would

listen to each witness impartially and weigh the evidence without

presuming that the victim was telling the truth.    She also

indicated that she could follow the law and she understood that

the Commonwealth had to prove its case beyond a reasonable doubt.
     Although Trevey stated that he felt a "sense of rage" when

he heard the charges against Spencer and that he was "not sure"

he could be impartial, he also stated that he understood Spencer

was innocent until proven guilty and that the Commonwealth had to

prove guilt beyond a reasonable doubt.     He further indicated he

could follow the trial court's instructions, weigh all of the

evidence and follow the law.     Accordingly, the trial court did

not err by refusing to strike Clark and Trevey for cause.

                            C.    Allmon

     As a last contention related to jury selection, Spencer

argues that the trial court erred in not striking Allmon for

cause due to her bias in favor of police officers.    We disagree.

                                 - 14 -
     Although Allmon stated she would be inclined to attach

credibility to the testimony of a police officer, she stated she

would not "automatically" believe the testimony of a police

officer.   She stated she could render a fair and impartial

decision in the case.   She also stated she believes a person is

innocent until proven guilty and she would listen to all of the

facts in the case before making a decision.

     Viewing the voir dire of this prospective juror as a whole,

it is clear that she was committed to hearing the evidence and

observing the witnesses before making determinations of

credibility.   The juror dispelled any notion that the status of

being a police officer would per se render an officer's testimony
more believable than contrary testimony by one who was not a

police officer.   On this record, the trial court did not abuse

its discretion by refusing to strike Allmon.

                          V.   CONCLUSION

     Finding no error that requires the reversal of Spencer's

convictions, we affirm the decisions of the trial court.
                                                           Affirmed.




                               - 15 -
