COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Hale y and Senior J udge Annunziata Argued at Alexandria, Virginia

ADHAN MALDONADO, S/K/A ADAN MALDONADO MEMORANDUM OPINION * BY v. Record No. 2384-05-4 J UDGE JAMES W. BENTON, JR. DECEMBER 28, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF LOUDOUN COUNTY Burke F. McCahill, Judge Bonnie H. Hoffman, Deputy Public Defender, for appellant. Alice T. Armstrong, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
A jury convicted Adhan Maldonado of aggravat ed sexual battery. Maldonado contends the trial judge violated his ri ght of due process by refusing to pl ace his witness subpoenas under seal and further erred by failing to set aside the verdict after an ex parte communication occurred between court personnel an d the jury during delibera tions. We hold that that the trial judge did not violate Maldonado’s due process rights by not seali ng his witness subpoenas. We agree, however, that the ex parte communication obligated the trial judge to set aside the jury verdict. Thus, we reverse the conviction and remand the case for retrial.
I. A month before the trial, Maldonado’s attorney filed a motion to seal her witness subpoenas. Arguing the motion, Maldonado’s attorn ey contended this was a due process issue because the Commonwealth was not required to disc lose its witness list to the defense and “the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - playing field should be levele d.” The prosecutor indicated she already had filed the Commonwealth’s returns of servi ce identifying her witnesses and th e returns were available for viewing in the courthouse. The trial judge denied the motion. The evidence at trial proved Maldonado went to his nephew’s house one afternoon for a social gathering of friends. While the guests were eating and mingling around the deck at the rear of the house, Maldonado was pushing the fou r-year-old child of his nephew as she sat in a rope swing. The swing is a single piece of rope tied in a loop and hung on a tree next to the deck. Later in the even ing after the guests left, the child’s parents noticed blood in the child’s underwear. They took her to the hospital the nextday. The nurse examined the child and found a small laceration on her genitalia. The nurse te stified the laceration was abnormal but she could not say what caused it. Investigator Craig and Deputy Giron arre sted and interviewed Maldonado. Because Maldonado spoke Spanish and Inves tigator Craig did not, Deputy Gir on acted as an interpreter. Maldonado agreed to talk to the officers and signed a waiver of his rights under Miranda v. Arizona , 384 U.S. 436 (1966). Initially, Maldonado informed the officers that he did not remember anything from the party because he wa s intoxicated. Later in the interview, the officers told Maldonado that a nurse found a cut on the child’s genital area and that the nurse had medical proof he had caused it. They suggest ed it may have occurred accidentally. Deputy Giron testified Maldonado responded, “he was drunk and he couldn’t remember, but he said it’s possible he did open her pants, we nt down her panties, and rubbed her vagina area.” After this admission, the officers asked Maldonado if they coul d record the in terview. The officers then recorded the last twenty minut es of the two-hour interview. During Deputy Giron’s testimony, the prosecuto r played the tape, and the deputy again translated the Spanish portions of the tape, expl aining where he deviated from a literal translation- 3 - of Investigator Craig’s questions and how. On the tape, Investig ator Craig asked questions in English, Deputy Giron asked the questions in Sp anish, Maldonado responded in Spanish, and the deputy repeated the answers in English. Maldonado’s attorney objected that the deputy’s testimony concerning the Spanish spoken on the tape was inaccurate and further that the deputy’s Spanish translation as recorded on the tape was also inaccurate. The trial judge then di rected a court interpre ter to translate the Spanish portions of the tape. Concerned about whether the officer was “summarizing,” the judge indicated the translator would “j ust say, I heard this sentence in Spanish, stop, this is what it means, the defendant’s reply, translate it to Eng lish, and let the jury deci de.” After the deputy had concluded his testimony, the interpreter played th e tape before the jury and orally translated the Spanish portions. Several defense witnesses testified they saw Maldonado pushing the child and her brother while they were on the swing, but they did notsee him touch the child inappropriately. Maldonado testified that he pushed the child and her brother while they were on the swing. He testified he did not remove or unfasten the child ’s pants and did not touch her genitalia. He explained that, during the intervie w, he denied the officer’s accu sations nine or ten times. He said the officers then informed him that they had proof he hurt the child a nd that, if he confessed, he could go home. Maldonado testified he told them what he believed they wanted to hear because he was afraid the officers would physically attack him. During closing argument, the prosecutor referred to Maldonado’s confession in the interview and the contents of the recording, whic h was an exhibit. The prosecutor also referred to specific questions the officers asked Ma ldonado and told the jury the following: You all heard the tape play ed to you, and you’ll be able to, if you so desire, to hear it again back in deliberations. Listen to the tone of Deputy Giron and InvestigatorCraig on that tape. Listen to the tone of the defendant’s voice and determine for yourselves- 4 - whether or not you think his will wa s overborne and he was forced into making the statement to the police. During her closing argument, Maldonado’s attorney argued that the other guests at the party would have seen something suspicious if Mal donado had committed the alleged act. To support the contention that Maldonado made his statement not because it was true, but out of fear of the police, Maldonado’s attorney emphasized the lead ing questions the police asked during the taped portion of the interview and Ma ldonado’s mirrored responses. Maldonado’s attorney also emphasized that the jury’s determination of the c ontents of the tape and the interpretations were critical issues. At the conclusion of the arguments, the jury r eceived the tape and other exhibits in the deliberation room. The jury convicted Maldonado of aggravated sexual assault. The trial judge imposed the jury’s sentence of four years imprisonment and gave an additional year of post-release supervision. Maldonado’s attorney filed a motion to set as ide the verdict and for mistrial, based on an ex parte communication between court personnel and the jury. The prosecutor did not contest the allegation that the jurors asked for an interpreter during the deliberations to interpret the Spanish portion of the exhibit that recorded the interview. Court personnel denied the jury’s request without communicating the request to the trial judge or ei ther party. After considering the arguments, the trial judge sa id he would not have allowe d the jurors’ request under any circumstances, and he denied the motion, ruling the ex parte contact was harmless.
II. Maldonado contends “due process requires that a defendant’s request for witness subpoenas be placed under seal and not made av ailable for inspection by the Commonwealth.” Underlying this claim is his argument thatRule 3A:12 and Code § 19.2-267 permit the prosecutor to maintain a strategic advantage ove r defendants because the prosecutor can shelter- 5 - the witnesses the prosecutor s ubpoenas for trial from scrutiny by a defense attorney while the identities of witnesses a defens e attorney subpoenas for trial ar e available for scrutiny. He argues that the procedure in criminal cases allo wing prosecutors, and not defense attorneys, the power to directly issue s ubpoenas gives the Commonwealth an unconstitutional tactical advantage in violation of the Due Process Clause of the Four teenth Amendment. Thus, he argues the trial judge erred by not granting his mo tion to place his witnes s subpoenas under seal. The Commonwealth contends that Maldonado’ s argument substantively fails because the Constitution does not provide a “right to proceed in secrecy” or a “right of surprise.” The Commonwealth additionally cont ends Maldonado’s claim is notjusticiable. Noting the prosecutor proffered at trial that her office had already f iled the returns in the clerk’s office, the Commonwealth argues Maldonado’s attorney co uld have learned the identities of the Commonwealth’s witnesses by looki ng in the court’s file. Rule 3A:12 mandates, in pertinent part , as follows in criminal proceedings: A subpoena for the attendance of a w itness to testify before a court not of record shall be issued by the judge, clerk, magistrate, or Commonwealth’s attorney. A s ubpoena for the attendance of a witness to testify before a circu it court or a grand jury shall be issued by the clerk or Co mmonwealth’s attorney. Similarly, Code § 19.2-267 provides: In a criminal case, a summons for a witness may be issued by the attorney for the Commonwealth or other attorney charged with the responsibility for the prosecution of a violation of any ordinance; however, any attorney who issues such a summons shall, at the time of the issuance, file with the clerk of the court the names and addresses of such witnesses. Applying this statute in Caccioppo v. Commonwealth , 20 Va. App. 534, 537, 458 S.E.2d 592, 594 (1995) (quoting Jamborsky v. Baskins , 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994)), we concluded “that the use of ‘shall’ in Code § 19.2- 269 is ‘directory and not mandatory.’” Thus, we held that the Commonwealth’s witnesses can te stify even if the prosecutor does not file the- 6 - witnesses’ names and addresses with the court until the day of trial. Caccioppo , 20 Va. App. at 537-38, 458 S.E.2d at 594. In view of the holding in Caccioppo , we agree with Maldonado that a defendant does not necessarily have the oppor tunity to discover whom the Commonwealth plans to call as witnesses. Yet, a defendant’s witnesses, who generally must be subpoenaed upon request through the clerk’s office, can be di scovered by reviewing the file, giving the Commonwealth the opportunity to intervie w defense witnesses before trial. The facts of this case, however, are othe rwise. In response to Maldonado’s pretrial motion, the prosecutor proffered that her office had filed the returns of service for its witnesses and, thus, the names of its w itnesses were available to Maldonado. Although Maldonado suggests no evidence in the reco rd supports the Commonwealth’s assertion, the rule is well settled that “a unilateral avowal of counsel, if unchallenged, . . . constitutes a proper proffer.” Whittaker v. Commonwealth , 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977). Maldonado did not challenge the Commonwealth’s attorn ey’s pretrial proffer; thus, the proffer is part of the record.
See Parker v. Commonwealth , 42 Va. App. 358, 369 n.4, 592 S.E.2d 358, 363 n.4 (2004) (reciting as evidence facts “presented to the trial court in the form of an unchallenged proffer by the Commonwealth’s attorney”). The trial judg e properly accepted the unc hallenged avowal of the prosecutor. The Fourteenth Amendment to the United States Constitution provides that “[n]o State . . . shall deprive any person of life, liberty or property without due process of law.” “Procedural due process rules ar e meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus , 435 U.S. 247, 259 (1978). Due process analysis consists of two steps. See Klimko v. Virginia Employment Comm’n , 216 Va. 750, 754, 222 S.E.2d 559, 563, cert . denied , 429 U.S. 849 (1976). First, a deprivation of a liberty or property interest must be demonstrated. See J.P. v. Carter , 24 Va. App. 707, 715, 485 S.E.2d 162, 167 (1997). Then, “‘once it is determinedthat due process applies, the question remains what process is due.’” Id. (quoting Jackson , 14- 7 - Va. App. at 406, 419 S.E.2d at 393-94). “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Am endment’s protection of liberty and property. . . . The range of interests protected by procedural due process is not infinite.” Board of Regents v. Roth , 408 U.S. 564, 569-70 (1972). O’Banion v. Commonwealth , 30 Va. App. 709, 723, 519 S.E.2d 817, 824 (1999). When an accused claims a due process violation, “[w] e are to determine only whether the action complained of . . . violates those ‘fundamental con ceptions of justice which lie at the base of our civil and political institu tions,’ and which define ‘the community’s sense of fair play and decency.’” United States v. Lovesco , 431 U.S. 783, 790 (1977) (citations omitted). To establish a claim for violation of due process, Maldonado must show that the procedure he complains of deprived him of his liberty or property interest. Jackson v. W. , 14 Va. App. 391, 406, 419 S.E.2d 385, 393 (1992). To make this showing, Maldonado had to offer “more than undeveloped assertions that the re quested [procedure] would be beneficial.” Caldwell v. Mississippi , 472 U.S. 320, 323 n.1 (1985). As a general rule, when an accused makes “claims of due process deprivations[, courts ] require a showing of identifiable prejudice to the accused.” Estes v. Texas , 381 U.S. 532, 542 (1965). Maldonado contends the proce dure deprived him of a fair opportunity to present his defense and violated his due pr ocess rights because “the Commonwealth ha[d] no obligation to provide to defense counsel the names of her w itnesses” but, yet, knew the identity of his witnesses. Maldonado argues the Rule and the statute impermissibly treated the two parties unequally because the Commonwealth’s attorney could have kept its witness list secret, but he could not. Maldonado asserts he wa s prejudiced because the pretrial interviews conducted by the police of his witnesses enabled the prosecutor to attempt to impeach some of his witnesses during their testimony based on their statements to the police investigator and cast doubt upon their credibility.- 8 - On the facts of this case, Maldonado can make no colorable claim that Rule 3A:12 and Code § 19.2-267 deprived him of due process. The record established that a month prior to trial the names of persons subpoenaed by the prosecutor were in the court’s file and were available for inspection by Maldonado’s attorney. Maldonado and the Co mmonwealth’s attorney both had the opportunity to learn the identities of the ot her’s witnesses and interview them beforehand to prepare for trial. The trial judge’s refusal to de prive the prosecution of the same opportunity that was available to Maldonado did not violate any fundamental no tions of justice. Lovesco , 431 U.S. at 790 (holding that the pros ecution’s delay before indicti ng the appellant did not deprive him of due process). We hold, therefore, that the trial judge did not de prive Maldonado of his due process rights by denying his motion to place his witness subpoenas under seal.
III. Maldonado contends the ex parte communication between th e jury and the court personnel about a material issue in the case duri ng the jury’s deliberat ion necessitates setting aside the jury’s verdict. He argues that the pr osecution did not adequate ly show that the court personnel’s ex parte communication with the jury was harmless. The Commonwealth responds that the trial judge did not abuse his discretion in denying the motion for a new trial because Maldonado was not prejudiced by the communication. The Commonwealth characterizes the communication as an administra tive one, as opposed to a communi cation pertaining to the matter before the jury. Additionally, the Commonw ealth argues that speculation on the jury’s perceptions of the communication “are not sufficient to overcome the trial court’s findings of fact.” The principle restricting ex parte communication with the jury is well settled in Virginia: “In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is . . . deemed presumptively prejudicial, if not made in th e pursuance of known rules of the- 9 - court and the instructions and dire ctions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests he avily upon the Government to establish, after notic e to and hearing of the defendant, that such contact with the juror was harmless to the defendant. ” Scott v. Commonwealth , 11 Va. App. 516, 520, 399 S.E.2d 648, 650 (1990) (quoting Remmer v. United States , 347 U.S. 227, 229 (1954)). Thus, once the defendant shows that an ex parte communication occurred about the matter pending before the jury, the burden shifts to the government to prove that the contact was harm less. The Commonwealth does not contest that the communication occurred. The remaining ques tions are whether the communication pertained to the matter before the jury and whether any error was harmless. Two instructive cases on whether a communica tion pertains to the matter pending before the jury are Ellis v. Commonwealth , 227 Va. 419, 317 S.E.2d 479 (1984), and Scott , 11 Va. App. 516, 399 S.E.2d 648. In Ellis , one of the jurors sm elled of alcohol and do zed during testimony. 227 Va. at 421, 317 S.E.2d at 480. In chambers, the tr ial judge privately adm onished the juror to stay awake and inquired into the odor of alcohol. Id. Satisfied with the juror’s explanation that he had consumed alcohol the day before and his assurance that he would perform his duties as a juror, the judge allowed the juror to remain. Id. The Supreme Court of Virginia held that the ex parte communication was “administrative in nature” a nd did not “‘relate[] to some aspect of the trial.’” Id. at 423, 317 S.E.2d at 481 (quoting Rushen v. Spain , 464 U.S. 114, 119 (1983)). Thus, the Court distinguished between administrative matters and matters pending before the jury.
In Scott , the bailiff told the venire panel during voir dire that Richmond juries were more lenient than juries in other jurisdictions. 11 Va. App. at 518, 399 S.E.2d at 649. This Court held that those communications were of “constitutiona lly impermissible” content because they sent an- 10 - unmistakable message to the prospective jury me mbers about the discharge of their duties. Id. at 520-21, 399 S.E.2d at 650-51. We conclude that the circumstances in this case of the court personnel’s response to the jury’s request for an interpreter are more analogous to the Scott facts than those in Ellis . Here, the jury as a whole directed a communication to the court. It presented a request for an interpreter to aid the jury’s deliberations about an exhibit it was give n containing dialogue in Spanish. This was not a case where the judge dealt privately with a matter of juror administration. The communication was about th e matter pending before the jury and was not one of trial administration. The government bears a heavy burden in proving an ex parte communication was harmless. Id. at 520, 399 S.E.2d at 650. The test in a criminal cas e is not whether the jurors were actually prejudiced by the extrane ous matter, but whether they might have been so prejudiced. If they might have been prejudiced, then the purity of the verdict is open to serious doubt and the verdict should be set aside and a new trial awarded. Thompson v. Commonwealth , 193 Va. 704, 715, 70 S.E.2d 284, 290 (1952); see also Scott , 11 Va. App. at 520, 399 S.E.2d at 650; Evans-Smith v. Commonwealth , 5 Va. App. 188, 207-08, 361 S.E.2d 436, 447 (1987) (holding that the trial judge erred by not quest ioning the jury about its consideration of extraneous information). Factual findings made by the lower court are entitled to deference, but the ultimate conclusi on of harmlessness is one of law. Spain , 464 U.S.
at 120. Maldonado contends the tape recording of the pol ice interview was cr itical to the case, and argues the trial judge’s c onclusion that the request woul d have been denied under any circumstances “fails to account for the role counsel may play in shaping a court’s response to a jury inquiry.” In determining harmlessness, re levant factors include the matter discussed, the- 11 - circumstances surrounding the trial, and the jury members’ statem ents of whether the communication affected their deliberation. See Stockton v. Virginia , 852 F.2d 740, 746 (4th Cir. 1988) (holding that the improper “comment bore on the exact issu e” of whether to impose the death penalty or life imprisonment and focusi ng on how the high-public interest in the case meant the jury might have been influenced by public sentiment); Scott , 11 Va. App. at 521, 399 S.E.2d at 651 (holding that the jurors’ statemen ts that they were not influenced were “insufficient, standing alone . . . , to establish harmless error”). The record discloses that both the prosecuto r and Maldonado’s attorn ey suggested to the jury the importance of review ing the recording of the interv iew. In closing argument, Maldonado’s attorney relied on the theory that Ma ldonado’s confession was false because he had been questioned before the taping began and he then responded the way he thought the interviewing police officers wanted. The tape was crucial evidence for the Commonwealth because it contained the confession; however, the defense’s theory re quired the jury give careful attention to the exact language on the tape to dispel the Commonwealth’s view that it was a reliable confession. The interpre tations given by the deputy and th e interpreter differ in several instances. There are significant instances where the court interpreter’s tr anslation supported the defense’s theory over Deputy Giron’s translation on the tape. When Investigator Craig asked, “Did she run away?” Deputy Giron translatedthe question as, “Wha t happened after that happened? Did she run, did she leave? Did she leave towards her house?” Maldonado answered, “She went towards her house.” When I nvestigator Craig asked, “At this time, is there anything you’d like to say to my supervisor, to th e Courts that might listen to this tape?” Deputy Giron told Maldonado, “At this time, if there’s anything you want to te ll his boss, to the Court, if you feel bad, if you want to say what you’re fee ling. It is your opportunity now to explain what you feel, what you want to say.” The deputy sa id Maldonado responded, “‘please forgive me. I- 12 - was drunk.’ He is asking forgiveness.” The tran slator said Maldonado sai d, “Just—I want to say that I’m sorry. I was drunk. I did not know what I did and I feel bad.” In another instance, Deputy Giron interpre ted Maldonado’s words, “I was a little drunk and it was possible, I believe I opened her pants and he put his hand down in her private area.” The interpreter said Maldonado’s words were “We ll, maybe I was drunk. I don’t remember very well. Maybe I opened the pants and lowered my hand.” The record reflects the jury requested the services of the court’s interpreter as it considered the exhibit containing dialogue in Sp anish. Without informing the trial judge, the employee of the court denied the ju ry’s request for an interpreter to translate a substantive piece of evidence. Thus, the trial j udge and the attorneys had no opportuni ty to consider the request, to frame a response, or to put objections on the re cord. Furthermore, in view of the emphasis placed by both parties on the importance of the e xhibit and the differences that exist in the two translations, we cannot conclude the request could not have aff ected deliberations and did not prejudice Maldonado. That the ex parte response by the court employee was d eemed by the judge, after the fact, to be the response the judge de termined he would have given, standing alone, did not render it harmless. We believe the reasoning given by th e Maryland Court of App eals, in rejecting a similar argument, to be persuasive. While the answers [the trial judge] gave were substantively correct, the record does not reflect . . . al l of the circumstances necessary to be considered in determining whether the petitioner was prejudiced by his, and in this case, his couns el’s absence. . . . [N]either the petitioner nor his counsel had . . . any opportunity to have input[] in the answers the jury received. . . . Even more apparent is the fact that, by virtue of their absence, neither was able to protect the record, insure that the petitione r’s rights were not compromised and that his case was not prejudiced.- 13 - Taylor v. Maryland , 722 A.2d 65, 73 (Md. 1998) (holding that the substantive co rrectness of the ex parte responses did not overcome the presumption of prejudice). For these reasons, we hold that the Commonwealthfailed to meet its burden to show that the communication was harmless. The trial judg e therefore erred by not granting the motion for a new trial. Accordingly, we reverse the convi ction and remand for a new trial because of the improper ex parte communication. Reversed and remanded

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