COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

ELMER C. BENNEFIELD 

v. Record No. 1062-94-4 

COMMONWEALTH OF VIRGINIA OPINION BY 

 JUDGE CHARLES H. DUFF 

FRANK D. KELLY, S/K/A FEBRUARY 27, 1996 

 FRANK DAMON KELLY, JR. 

v. Record No. 2073-94-4 

 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

 F. Bruce Bach, Judge 

 Stephen F. Breenwald; Harvey H. Perritt, Jr., 

for appellant Bennefield. 

 William B. Moffitt; Joel Simberg (Moffitt, 

Zwerling & Kemler, P.C., on brief), for 

appellant Kelly. 

 

 John H. McLees, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on briefs), for appellee. 

 Elmer C. Bennefield and Frank D. Kelly were convicted of 

murder, abduction, and use of a firearm in the commission of a 

felony. On appeal, they contend that their retrial was barred by 

the double jeopardy clauses of the United States and the Virginia 

Constitutions. We disagree and affirm their convictions. 

BACKGROUND

 During the late hours of July 30, 1993, four high school 

friends, Ryan Quinn, Jason McCree, Jacob Barnhart, and William 

Crocker (the Crocker group), attempted to purchase marijuana from 
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Kelly, Bennefield and Rick Herring (the Kelly group). The 

Crocker group gave the Kelly group one hundred fifty dollars, and 

they followed the Kelly group by car to a restaurant. The Kelly 

group travelled together in one car, and the Crocker group 

followed in Crocker's car. The Kelly group joined with another 

group (the Karim group) at the restaurant, and the Karim group, 

in a third car, followed the Kelly and Crocker groups to a motel. 

 Someone in the Kelly group told the Crocker group that a man had 

taken the drug purchase money and fled without delivering the 

marijuana. On the pretext of finding the person who had taken 

the money, the Crocker group followed the cars carrying the Kelly 

and Karim groups to a deserted construction site. At the 

construction site, members of the Kelly and Karim groups pointed 

guns at the Crocker group members and ordered them to lie on the 

ground. The Kelly and Karim group members shot three members of 

the Crocker group, injuring Quinn and McCree and killing Crocker. 

 Barnhart fled, uninjured. 

 On February 28, 1994, Bennefield, Kelly and Herring were 

jointly tried pursuant to Code § 19.2-262.1. On March 2, 1994, 

during the prosecution's direct examination of Quinn, Bennefield 

and Kelly (appellants) learned for the first time that Quinn had 

received psychological counseling and possibly suffered from 

post-traumatic stress disorder. Appellants also discovered for 

the first time that Barnhart, who testified before Quinn, may 

have been receiving counseling. Bennefield told the trial court 
 3 

that he did not want a mistrial, but Kelly moved for a mistrial. 

The trial court recessed until March 8, 1994, to allow counsel to 

review and investigate the newly learned information relating to 

the Commonwealth's witnesses. 

 The trial court ordered the Commonwealth's attorney to 

review his file, interview the witnesses, and give the defendants 

any information remotely exculpatory. 

 When trial reconvened on March 8, 1994, counsel for Kelly 

told the trial judge that, moments before the trial resumed, he 

received from the Commonwealth a statement made by McCree that 

differed from McCree's trial testimony. Bennefield then moved 

for a mistrial. After hearing argument by counsel, the trial 

judge declared a mistrial. 

 From April 27 through April 29, 1994, the trial judge 

conducted a hearing and heard testimony relating to appellants' 

motions to dismiss based on double jeopardy and whether the 

Commonwealth intended to cause a mistrial. The trial judge 

denied the motions, and levied a sanction against the prosecutor. 

 On July 12 and 13, 1994, appellants were retried and found 

guilty. 

STANDARD OF REVIEW 

 Whether a prosecutor intended to provoke or goad a defendant 

into moving for a mistrial "is a question of fact for the trial 

court to resolve." Robinson v. Commonwealth, 17 Va. App. 551, 

555, 439 S.E.2d 622, 625, aff'd on reh'g en banc, 18 Va. App. 
 4 

814, 447 S.E.2d 542 (1994). On appeal, the trial court's finding 

is accorded great deference. Id. at 555 n.4, 439 S.E.2d at 625 

n.4. 

APPELLANT'S FIFTH AMENDMENT CLAIM 

 The Double Jeopardy Clause of the Fifth 

Amendment protects a criminal defendant from 

repeated prosecutions [or multiple 

punishments] for the same offense. As a part 

of this protection against multiple 

prosecutions, the Double Jeopardy Clause 

affords a criminal defendant a "valued right 

to have his trial completed by a particular 

tribunal." The Double Jeopardy Clause, 

however, does not offer a guarantee to the 

defendant that the State will vindicate its 

societal interest in the enforcement of the 

criminal laws in one proceeding. If the law 

were otherwise, "the purpose of law to 

protect society from those guilty of crimes 

frequently would be frustrated by denying 

courts power to put the defendant to trial 

again." 

Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982) (citations and 

footnote omitted). See also Wade v. Hunter, 336 U.S. 684, 688-89 

(1949) ("a defendant's valued right to have his trial completed 
 5 

by a particular tribunal must in some instances be subordinated 

to the public's interest in fair trials designed to end in just 

judgments"). 

 Generally, "when a mistrial is declared at the defendant's 

behest, he is not permitted to claim the protection of the double 

jeopardy bar. However, when a defendant requests a mistrial 

because of intentional prosecutorial misconduct, the double 

jeopardy bar will apply." Kemph v. Commonwealth, 17 Va. App. 

335, 341, 437 S.E.2d 210, 213 (1993) (citations omitted). In 

other words, "the Commonwealth cannot use its own misconduct to 

gain an advantage." Id. at 341, 437 S.E.2d at 213-14. 

 This exception is a narrow one and is applicable "'[o]nly 

where the government conduct in question is intended to "goad" 

the defendant into moving for a mistrial.'" Robinson, 17 Va. 

App. at 553, 439 S.E.2d at 623 (quoting Kennedy, 456 U.S. at 

676). "The [narrow] standard applied in Kennedy is that 

prosecutorial conduct, even if viewed as harassment or 

overreaching and sufficient to justify a mistrial, does not bar 

retrial absent proof of intent on the part of the prosecutor to 

subvert the protections afforded by the double jeopardy clause." 

MacKenzie v. Commonwealth, 8 Va. App. 236, 240, 380 S.E.2d 173, 

175 (1989) (citing Kennedy, 456 U.S. at 675-76) (emphasis added). 

 In Kennedy, the Supreme Court made it clear 

that the exclusive focus should not be on the 

fact of prosecutorial error or on the impact 

of such error upon a defendant, but only on 

the intent of the prosecutor in committing 

the error. Accordingly, [the appellant], who 

has the burden of proving that the second 
 6 

prosecution is barred by double jeopardy, 

must produce sufficient evidence to allow the 

court to infer "the existence or nonexistence 

of intent from objective facts and 

circumstances." 

Robinson, 17 Va. App. at 553, 439 S.E.2d at 624 (quoting Kennedy, 

456 U.S. at 675) (citation and footnotes omitted). 

 "In order to grant [appellant's] plea of double jeopardy, 

the facts must warrant the conclusion that there was an 

instigative intention to subvert the protections afforded by the 

Double Jeopardy Clause." Robinson, 17 Va. App. at 555, 439 

S.E.2d at 625. 

 From April 27 through April 29, 1994, the trial judge who 

granted the mistrial heard evidence in order to determine whether 

the prosecutor's conduct was intended to cause appellants to 

request a mistrial. The prosecutor, Brownelle, testified that he 

received notes, reports, and other investigative information from 

the police, but that he failed to thoroughly read this 

information. He admitted that he did not read supplemental 

police reports and that some of the information was exculpatory, 

namely, the inconsistent statements of witnesses. The prosecutor 

also admitted that his last minute disclosures of certain 

evidence were negligent. He unequivocally denied any intent to 

cause a mistrial and insisted that the trial was proceeding 

favorably. 

 Investigator Guckenberger testified that he was the lead 

investigator in the case and that the case was complex and 
 7 

involved much paperwork and many reports. Guckenberger left the 

city for eight weeks during the investigation in order to attend 

a training school. Guckenberger said that through an "oversight" 

on his part, he and Brownelle did not find the supplemental 

police report containing McCree's inconsistent statement until 

after the mistrial was granted. When the prosecutor saw the 

report, he was "shocked" and told Guckenberger that they had to 

give the report to the defendants. Guckenberger also indicated 

that certain statements made at a hospital were made under 

adverse conditions; therefore, he did not rely on them as much as 

on the statements taken a few days later in calmer surroundings. 

 Guckenberger recorded the later statements on tape and had them 

transcribed. 

 Investigator Cline testified that, after the mistrial was 

granted, the prosecutor told him to review his police file. At 

that time, Cline discovered a statement made by Quinn in the 

hospital on the night of the crime. Cline thought he had given 

it to the prosecutor. Cline kept a separate file of which 

Guckenberger and Brownelle were unaware. On the day before the 

April 28, 1994 hearing, Cline first realized he had a note 

suggesting that Quinn visited a psychiatric facility. 

 Two attorneys testified and opined about the impact that the 

undisclosed or late-disclosed evidence could have had and whether 

such disclosure would prompt them to request a mistrial. 

 After hearing three days of testimony, and, based on "the 
 8 

objective facts and circumstances," the trial court found, that 

the prosecutor "did not intend to provoke a mistrial. I'll say 

that beyond any reasonable doubt." 

 I also find looking at the facts objectively 

that -- and I'll say that this hearing has 

not really been about discovery or 

exculpatory evidence. It's not really about 

did these Defendants get a fair shake as a 

result of Brownelle's actions, because 

clearly they didn't. They got a bad deal as 

a result of it. . . . What's the objective 

evidence as far as [Prosecutor] Brownelle is 

concerned? I think it probably shows -- I 

don't know whether it's laziness, whether 

it's procrastination, certainly negligence. 

I would say certainly gross negligence. I'll 

go further and say as a finding it shows near 

total indifference at least to Court 

Orders . . . . 

 . . . Now, I find for the first time 

during this hearing that he didn't even look 

at the files sometimes. He used words in his 

testimony that he glanced at the file or he 

perused the file. I mean, the Commonwealth 

has the absolute duty to study the file to 

comply with the Court Orders. 

 I would say the objective evidence shows 

probably an intent to stonewall. Instead of 

giving -- if something's questionable -- I 

said this during the case. If something's 

questionable, I feel like it's the 

Commonwealth's duty to give that to the 

Defendant. Now, Brownelle obviously took the 

position that if it was questionable to 

withhold or at least give it to them at the 

least advantageous time for them. 

 And I make all of these findings here on 

this record for whatever somebody else may 

want to do with it. But I cannot find and do 

not find that he did these things in order to 

provoke a mistrial. I think the objective 

evidence is to the contrary and so I find. 

 After making its findings, the trial court imposed a $6,700 

sanction against the prosecutor for violating the court's orders 
 9 

relating to discovery and exculpatory evidence. The record 

before us confirms the appropriateness of such severe sanctions. 

 Whether a prosecutor "intended to 'goad' the defendant into 

moving for a mistrial" requires an assessment of the "objective 

facts and circumstances of the case." Kennedy, 456 U.S. at 

675-76. Here, the prosecutor successfully moved for a joint 

trial of three co-defendants pursuant to Code § 19.2-262.1. 

Numerous police officers investigated the case, collected 

evidence, and submitted reports. The crime involved five 

co-defendants plus two additional suspects and four victims. 

 We find it significant that the trial judge who conducted 

the hearing on the double jeopardy issue was the same judge who 

presided at appellants' first trial. For that reason, he was 

better able to determine how the prosecution's case was 

progressing, and whether the prosecutor had any motivation or 

desire to cause a mistrial so as to gain a more favorable 

position at a new trial. See Robinson, 17 Va. App. at 555, 439 

S.E.2d at 624-25 (noting that by having original trial judge hear 

double jeopardy argument better enabled judge to properly 

consider strength of Commonwealth's case at first trial and 

determine issues of credibility). The conduct underpinning 

appellants' complaints, the prosecutor's failure to comply with 

discovery orders and to timely furnish exculpatory evidence, 

began before the start of trial and continued throughout the 

trial. The consistency of his conduct, predating the trial and 
 10 

continuing after it began, belies an assumption that he suddenly, 

during trial, manifested an "instigative intention to subvert the 

protections afforded by the Double Jeopardy Clause." Id.

 In finding that the prosecutor did not intend to provoke a 

mistrial, the trial judge, positioned as he was, could rely on 

"the prosecutor's representations about his intent, the 

prosecutor's credibility as a witness and the strength of the 

Commonwealth's evidence at the first trial." Id. at 554, 439 

S.E.2d at 624. 

 The prosecutor's testimony indicated, for example, that he 

did not believe some of the undisclosed information was 

exculpatory. He also failed to credit as reliable certain 

inconsistent statements made by the victims on the night of the 

crimes, which were made under stressful and chaotic hospital 

conditions. Some of the statements were misplaced by the police 

and, apparently, were not timely provided to the prosecution. 

The prosecutor became aware of Quinn's psychological counseling 

only during his direct examination of Quinn at the first trial; 

the information was in Quinn's victim impact statement prepared 

for sentencing of a juvenile co-defendant, Leon Peden, and the 

prosecutor had not read it. Peden's sentencing had not occurred 

at the time of the February 28, 1994 trial. 

 The trial judge believed the prosecutor's testimony that he 

did not thoroughly read the files or conscientiously follow 

discovery orders directing him to search and reveal discoverable 
 11 

information. Because the prosecutor failed to read some reports, 

the trial judge characterized the prosecutor's conduct as 

"laziness," "procrastination," "gross negligence," and "total 

indifference." He found an "intent to stonewall," in that the 

prosecutor either refused to view certain evidence as exculpatory 

or waited until the last moment to disclose it. However, the 

trial judge unequivocally found no intent "to provoke a 

mistrial." 

 As we have consistently held in our prior opinions, 

 prosecutorial conduct, even if viewed as 

[harassing] or overreaching and sufficient to 

justify a mistrial, does not bar retrial absent 

proof of intent on the part of the prosecutor to 

subvert the protection afforded by the double 

jeopardy clause. 

Kemph, 17 Va. App. at 341, 437 S.E.2d at 214 (alteration in 

original) (quoting MacKenzie, 8 Va. App. at 240, 380 S.E.2d at 

175). See also Robinson, 17 Va. App. at 555, 439 S.E.2d at 625 

("Without the requisite intent, . . . gross prosecutorial 

misconduct will not satisfy the exception set forth in Kennedy"). 

 Based on the appropriate standard of review, giving due 

deference to the trial court's findings of fact, and based on the 

objective facts and circumstances before the trial court, we 

conclude that the trial court's findings are supported by 

credible evidence. Therefore, the trial court's finding that 

there was no intent to provoke a mistrial is not clearly 

erroneous. Accordingly, under the standard expressed in Oregon 

v. Kennedy, appellants' retrial did not violate the Double 
 12 

Jeopardy Clause of the Fifth Amendment of the United States 

Constitution. 

APPELLANTS' STATE CONSTITUTIONAL CLAIM 

 Appellants' second argument is that the prosecutor's 

egregious conduct was not the type of conduct contemplated under 

Oregon v. Kennedy, and that a more stringent analysis should be 

applied. In support of this argument, appellants cite Justice 

Stevens' concurring opinion in Kennedy, in which Stevens 

unsuccessfully argued for a broader "overreaching" standard. 

456 U.S. at 681-93. Appellants offer no majority or plurality 

opinions from the Supreme Court providing an alternative 

applicable standard. In support of their position, appellants 

cite cases from state courts that have expanded the Kennedy

standard under their respective state constitutions. This 

argument also relates to appellants' third argument, namely, that 

the Double Jeopardy Clause contained in Article I, section 8 of 

the Virginia Constitution provides greater protection than that 

afforded under the federal Constitution, as announced in Kennedy. 

 Therefore, we consider arguments two and three together. 

 In Kemph v. Commonwealth, this Court held that, by applying 

the Kennedy analysis to double jeopardy claims, as we did in 

MacKenzie, the protections against double jeopardy afforded under 

the United States Constitution are identical with those embodied 

in Article I, section 8 of Virginia's Constitution: 

 Kemph asserts for the first time on appeal 

that the double jeopardy clause of the 

Virginia constitution protects him from 
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retrial even if the United States 

Constitution does not. This claim is barred 

by Rule 5A:18; nonetheless, as this Court has 

ruled that resolution of such a double 

jeopardy claim is controlled by Oregon v. 

Kennedy, MacKenzie, 8 Va. App. at 239, 380 

S.E.2d at 175, his argument lacks merit. 

Kemph, 17 Va. App. at 343 n.1, 437 S.E.2d at 215 n.1. 

 Our courts have consistently held that the protections 

afforded under the Virginia Constitution are co-extensive with 

those in the United States Constitution. Peterson v. 

Commonwealth, 5 Va. App. 389, 394, 363 S.E.2d 440, 443 (1987) 

(stating that the double jeopardy clauses of the Federal 

Constitution and the Virginia Constitution "basically afford[] a 

defendant" the same three protections). See also Lowe v. 

Commonwealth, 230 Va. 346, 348 n.1, 337 S.E.2d 273, 274 n.1 

(1985); Walton v. City of Roanoke, 204 Va. 678, 682, 133 S.E.2d 

315, 318 (1963); Flanary v. Commonwealth, 113 Va. 775, 779, 75 

S.E. 289, 291 (1912); Farmer v. Commonwealth, 12 Va. App. 337, 

340, 404 S.E.2d 371, 372 (1991) (en banc); I. A. Howard, 

Commentaries on the Constitution of Virginia 182 (1974). Neither 

the facts of this case nor our prior decisions support an 
 14 

extension of the protections afforded under our Constitution 

beyond those contained in the federal Constitution. 

 Affirmed.