COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

KELLY ANNE DARA 

 MEMORANDUM OPINION* BY 

v. Record No. 2795-95-1 JUDGE NELSON T. OVERTON 

 FEBRUARY 11, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 Thomas B. Shuttleworth (Lawrence H. Woodward, 

Jr.; Beverly A. Rebar; Shuttleworth, Ruloff & 

Giordano, P.C., on brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 Kelly Anne Dara was convicted by a jury of first-degree 

murder, conspiracy to commit robbery, and attempted robbery. She 

appeals, contending that (1) the Commonwealth's failure to 

produce allegedly exculpatory evidence in the juvenile court 

denied her a proper transfer hearing, and (2) that the 

Commonwealth's nolle prosequi of the indictment in the circuit 

court required a new transfer hearing. We disagree with both of 

these contentions, and we affirm the convictions. 

 The parties are fully conversant with the record in the 

cause, and because this memorandum opinion carries no 

precedential value, no recitation of the facts is necessary. 
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 The evidence complained of by Dara consists of a statement 

given to the police made by Josh Johnson, the co-conspirator who 

actually committed the killing. His statement claims that Dara 

was not present when he actually stabbed and killed the victim 

and that Dara did not want to kill the victim.1

 Johnson's 

statement was in the possession of the Commonwealth at the time 

of the transfer hearing, but was not disclosed to the defense, 

despite a discovery order. 

 Assuming for the purposes of this decision that the 

statement was exculpatory and should have been disclosed prior to 

the transfer hearing, the information contained was not material 

to the transfer hearing. Independent evidence supported the 

juvenile court's finding of probable cause for the conspiracy to 

commit robbery and the attempted robbery. The statement does not 

contradict or discredit these findings. Because the victim was 

killed while defendant was engaged in the felony of attempted 

robbery, probable cause need not be found that Dara intended to 

kill to satisfy a charge for first-degree (felony) murder. See

Haskell v. Commonwealth, 218 Va. 1033, 1044, 243 S.E.2d 477, 483 

(1978). Therefore, Johnson's statement would not alter the 

ultimate finding of probable cause on any of the charges at 

issue. 

 

 1The statement also alleges that Dara helped plan the 

intended robbery of the victim, however. 
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 Nor would Johnson's statement affect the transfer to circuit 

court. Dara was transferred under Code § 16.1-269.1(B). Under 

that subsection, the court is not required to consider the 

factors under Code § 16.1-269.1(A)(4) if the offender is fourteen 

or older and charged with an unclassified felony violation of 

Chapter 4 of Title 18.2 punishable by life imprisonment. Dara 

was seventeen at the time of the offense and charged with 

first-degree murder, an offense punishable by life imprisonment. 

 She could thus be transferred upon a finding of probable cause 

without considering other factors. 

 Dara's second issue on appeal is without merit. A new 

transfer hearing is not required after the Commonwealth enters a 

nolle prosequi on the indictments in circuit court. 

 Although a nolle prosequi generally discontinues the 

prosecution as though the indictment had never existed, Burfoot 

v. Commonwealth, 23 Va. App. 38, 44, 473 S.E.2d 724, 727 (1996), 

the General Assembly has statutorily modified this mechanism 

within the juvenile justice framework. The applicable Code 

section, amended in 1994, now provides that 

 [t]he circuit court order advising the 

attorney for the Commonwealth that he may 

seek an indictment shall divest the juvenile 

court of its jurisdiction over the case as 

well as the juvenile court's jurisdiction 

over any other allegations of delinquency 

arising from the same act, transaction or 

scheme giving rise to the charge for which 

the juvenile has been transferred. 

Code § 16.1-269.6(C) (emphasis added). This Court in Burfoot
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recognized the new change in the statute, stating that 

 under the new statute, the juvenile and 

domestic relations district court loses 

jurisdiction for all time over a juvenile 

defendant when the Commonwealth is authorized 

by the circuit court to seek an indictment. 

Thus, if the Commonwealth enters a nolle 

prosequi of that indictment, the circuit 

court retains jurisdiction over the juvenile.

Burfoot, 23 Va. App. at 43 n.2, 473 S.E.2d at 727 n.2 (emphasis 

added). 

 The nolle prosequi in the instant case did not have the same 

effect as it would have if decided under the old statute. Under 

the new statute, the circuit court retains jurisdiction and the 

Commonwealth may, as it did, seek new indictments without having 

to return to the juvenile court. 

 For the reasons stated, we affirm the convictions. 

 Affirmed.