COURT OF APPEALS OF VIRGINIA 

Present: Judge Annunziata, Senior Judge Duff and 

 Judge Clements*

Argued at Alexandria, Virginia 

PHILLIP J. MOORE 

 MEMORANDUM OPINION** BY 

v. Record No. 0264-99-4 JUDGE JEAN HARRISON CLEMENTS 

 JULY 25, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 James M. Lowe (Katherine D. Carlo, on brief), 

for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Phillip Moore, appellant, contends the trial court erred 

in quashing a subpoena duces tecum for the release of evidence 

in the possession of the police. Appellant also contends the 

trial court erroneously permitted the Commonwealth to comment on 

his failure to submit to a blood test and erroneously admitted 

into evidence an arrest report. Finding no error, we affirm the 

trial court. 

 *

 Judge Jean Harrison Clements took part in the 

consideration of this case by designation pursuant to Code 

§ 17.1-400, recodifying Code § 17-116.01. 

** Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
BACKGROUND 

 On October 30, 1997, at 1:40 a.m., Officer Fred Galati 

observed appellant's car travelling twenty to twenty-five miles 

over the posted speed limit and "swerve[] from the left-hand 

lane into the right-hand lane severely." Galati engaged his 

emergency lights in an attempt to stop appellant's car. 

Appellant initially slowed down to 55 miles per hour, the speed 

limit, but did not pull over and stop, so Galati engaged his 

siren. Appellant continued for one-half mile, then pulled over. 

Galati approached the driver's side door and asked for 

appellant's license and registration. Appellant said, "Sorry, 

Officer," placed his car in gear and drove off, running over 

Galati's foot and causing Galati to injure his knee. 

 Galati pursued appellant at speeds in excess of 105 miles 

per hour. Appellant eventually lost control of his vehicle, 

struck a tree, exited his vehicle and fled on foot. Galati 

chased and cornered appellant, who "[r]aised his hands" as if 

"he was going to fight." Galati "pushed [appellant] hard 

against [a] fence, backed up, took out [his] mace, and then 

sprayed him" with it. Galati then handcuffed appellant, who 

yelled and cursed at Galati. Although appellant had no serious 

injuries, Galati "called a medic unit to give [appellant] a wash 

down in the face." 

 After a jury trial on January 28 and 29, 1999, appellant 

was convicted of driving under the influence of alcohol as a 

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second offense within five years. Appellant was sentenced to 

serve twelve months in jail, ordered to pay a $2,500 fine and 

had his Virginia operator's license suspended for three years. 

This appeal is from that judgment. 

SUBPOENA DUCES TECUM

 In a December 1998 request for a subpoena duces tecum

directed to Edward Flynn, Arlington County Chief of Police, 

appellant sought the following: 

1. Tapes of radio traffic concerning the 

arrest of the above named defendant on or 

about October 30, 1997, at approximately 

0140 hours, by Officer Galati. The produced 

recording should cover five minutes before 

the stop through arrival at the Adult 

Detention Center[; and] 

2. All arrest photographs of the 

defendant-originals are requested. 

 In the accompanying affidavit, defense counsel averred 

"that the documents described in the accompanying Request for 

Production are material to the above styled proceedings." The 

Commonwealth moved to quash the subpoena, and the trial court 

heard argument on the motion on December 17, 1998, and quashed 

the subpoena. Appellant failed to provide a transcript of that 

hearing or the trial court's order. 

 At the conclusion of the Commonwealth's evidence at 

appellant's January 28, 1999 jury trial, appellant moved to 

strike for various reasons, one of which being he was "deprived 

of compulsory process by the Commonwealth in this case, in that 

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we had sought subpoenas duces tecum for certain evidence, which 

was denied to us, which would have not only been – have every 

right to have that evidence, but we have a right to evaluate it 

on our own." The subpoenas sought "tapes of the chase and the 

photographs of the Defendant taken at the police station on the 

night of his arrest," which appellant claimed "would have shown 

significant injury to the Defendant." Defense counsel told the 

trial judge that another judge "quashed [the] subpoena" in a 

prior hearing. 

 Acknowledging the Commonwealth's duty "to turn over any 

exculpatory evidence," the prosecutor, who was unfamiliar with 

the original subpoena, the motion to quash and the order 

quashing it, had "no reason to think" the requested items were 

exculpatory. Finding that the Commonwealth is "a party to the 

action under Ramirez [v. Commonwealth, 20 Va. App. 292, 456 

S.E.2d 531 (1995)]," the trial judge denied the motion. 

 On August 17, 1999, a judge of this Court denied the issue 

in appellant's petition for appeal asserting that the 

photographs and tapes were "potentially exculpatory evidence" to 

which he was entitled. The bases for the denial were 

appellant's speculative allegations and failure to prove that 

the evidence would have been favorable and was, therefore, 

exculpatory. On November 23, 1999, a three-judge panel of this 

Court granted two of the four issues raised by appellant; 

however, "for the reasons set forth in the order of this Court 

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dated August 17, 1999," the panel refused to address appellant's 

contention that he was denied potentially exculpatory evidence. 

We are bound by the panel's determination that appellant failed 

to prove the evidence was exculpatory. 

 "There is no general constitutional right to discovery in a 

criminal case." Swisher v. Commonwealth, 256 Va. 471, 481, 506 

S.E.2d 763, 768 (1998), cert. denied, 120 S. Ct. 46 (1999). 

Rather, discovery is governed by Virginia law, which under Rule 

3A:11 is limited and applies only to felony charges in the 

circuit court. See Rule 3A:11(b). Because appellant was 

charged with a misdemeanor, Rule 3A:11(b) did not apply. 

 Rule 3A:12(b) provides for "Production of Documentary 

Evidence and of Objects Before a Circuit Court." It provides, 

in pertinent part: 

Upon notice to the adverse party and on 

affidavit by the party applying for the 

subpoena that the requested writings or 

objects are material to the proceedings and 

are in the possession of a person not a 

party to the action, the judge or the clerk 

may issue a subpoena duces tecum for the 

production of writings or objects described 

in the subpoena. 

Rule 3A:12(b) (emphasis added). 

 "The trial court's refusal to issue a subpoena duces tecum

. . . is not reversible error absent a showing of prejudice." 

Gibbs v. Commonwealth, 16 Va. App. 697, 699, 432 S.E.2d 514, 515 

(1993) (citing Conway v. Commonwealth, 12 Va. App. 711, 716, 407 

S.E.2d 310, 312-13 (1991) (en banc)). 

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 In Ramirez, the defendant contended "the trial court erred 

in denying his request for a subpoena duces tecum directed to 

the Fairfax Department of Social Services." Ramirez, 20 Va. 

App. at 293, 456 S.E.2d at 532. Pursuant to Rule 3A:12(b), 

Ramirez requested a subpoena "commanding [DSS] to deliver all 

documents, records, reports, statements, investigative reports, 

photographs, or other writings or items relating to the 

allegations of defendant's [sexual] misconduct toward [the 

victim]." Id. at 294, 456 S.E.2d at 532. 

 We affirmed the trial court's denial of the requested 

subpoena, finding that reports and internal documents made by 

agents of the Commonwealth in connection with the investigation 

or prosecution of the case were not discoverable under Rule 

3A:11(b)(2). See id. at 296, 456 S.E.2d at 533. Moreover, 

because "the documents of DSS [we]re not in the possession 'of a 

person not a party to the action,'" we found Rule 3A:12 

inapplicable. Id. (quoting Rule 3A:12(b)). 

 In Cox v. Commonwealth, 227 Va. 324, 329 n.4, 315 S.E.2d 

228, 231 n.4 (1984), the defendant "assigned error to the trial 

court's refusal to issue a subpoena duces tecum requiring the 

production of certain records of the City Treasurer." Because 

the bulk of those records had been seized by the police and were 

in the Commonwealth's custody, the Supreme Court held "they were 

not subject to a subpoena duces tecum, because they were not in 

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the possession 'of a person not a party' to the proceeding." 

Id.

 We find this issue is determined by the language and 

reasoning in Ramirez and Cox limiting the issuance of subpoenas 

duces tecum to nonparties. The requested items were in the 

possession of the police, who are agents of the Commonwealth. 

See Cox, 227 Va. at 329 n.4, 315 S.E.2d at 231 n.4; Ramirez, 20 

Va. App. at 296, 456 S.E.2d at 533. Therefore, the items were 

not in the possession of a "person not a party to the action." 

 Moreover, "'[i]n order to assert [a] right to compulsory 

process, the accused is required to make a plausible showing 

that the testimony sought would be both material and favorable 

to his defense.'" Jones v. City of Virginia Beach, 17 Va. App. 

405, 409, 437 S.E.2d 576, 579 (1993) (quoting Howard v. 

Commonwealth, 6 Va. App. 132, 144, 367 S.E.2d 527, 534 (1988) 

(citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867 

(1982))). 

 Here, appellant failed to submit the transcript of the 

December 17, 1998 hearing at which he argued against quashing 

the subpoenas. Therefore, we have no record showing the bases 

of appellant's materiality arguments. In addition, the record 

fails to show that radio communication tapes exist and are 

available. Moreover, the record fails to show how the booking 

photographs and taped radio communications were material to 

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appellant's defense in his DUI trial. Cf. Cox, 227 Va. at 328, 

315 S.E.2d at 230. 

VOIR DIRE COMMENTS AND THE ARREST REPORT 

 During voir dire of the venire, the Commonwealth's attorney 

provided the following explanation to potential jurors: 

This is a case of driving under the 

influence of alcohol, and as you know, in 

Virginia, I assume you know, the legal limit 

is a .08, above which, you're driving with a 

BAC, a blood alcohol level higher than that 

is a violation of the law. In this 

particular case, which is a charge of 

driving under the influence of alcohol, 

there will be no testimony of any chemical 

test – 

 Defense counsel moved for a mistrial1 and argued this was an 

improper comment on appellant's refusal to take a blood alcohol 

test, and it amounted to "the functional equivalent of saying 

this Defendant took his Fifth Amendment rights or something." 

The Commonwealth's attorney contended she was simply trying to 

explain that one way of proving DUI is by providing evidence 

other than blood test results. The trial court found that the 

 1

 "Because the jury had not been sworn, trial had not 

commenced, jeopardy had not attached, and no mistrial could be 

declared. Therefore, appellant's remedy lay in disqualifying 

the entire jury venire. Whether to disqualify an entire venire 

is a matter committed to the sound discretion of the trial 

judge." Brown v. Commonwealth, 28 Va. App. 315, 326, 504 S.E.2d 

399, 404 (1998). 

Because we apply an abuse of discretion standard in 

reviewing decisions involving motions to disqualify a venire, 

see id., and motions for mistrials, see Beavers v. Commonwealth, 

245 Va. 268, 280, 427 S.E.2d 411, 420 (1993), the failure to 

make the proper objection was not fatal. 

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prosecutor did not improperly comment on appellant's refusal to 

permit a blood test in violation of Code § 18.2-268.10, and it 

denied appellant's motion. 

 "Code § 18.2-266 prohibits drinking alcohol and driving 

under either of two separate and distinct circumstances." 

Thurston v. Commonwealth, 15 Va. App. 475, 482, 424 S.E.2d 701, 

705 (1992). Code § 18.2-266(i) makes it "unlawful for any 

person to drive or operate any motor vehicle . . . while such 

person has a blood alcohol concentration of 0.08 percent or more 

by weight by volume or 0.08 grams or more per 210 liters of 

breath as indicated by a chemical test." Code § 18.2-266(ii) 

prohibits driving "while such person is under the influence of 

alcohol." "[B]eing 'under the influence of alcohol,' is 

established when any person has consumed enough alcoholic 

beverages to 'so affect his manner, disposition, speech, 

muscular movement, general appearance or behavior, as to be 

apparent to observation.'" Thurston, 15 Va. App. at 483, 424 

S.E.2d at 705 (quoting Gardner v. Commonwealth, 195 Va. 945, 

954, 81 S.E.2d 614, 619 (1954)). Therefore, where the 

Commonwealth offers no chemical test results of an accused's 

blood or breath, the issue becomes whether the accused is under 

the influence, which has "'to be determined from all of the 

evidence of his condition at the time of the alleged offense.'" 

Leake v. Commonwealth, 27 Va. App. 101, 110, 497 S.E.2d 522, 526 

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(1998) (quoting Brooks v. City of Newport News, 224 Va. 311, 

315, 295 S.E.2d 801, 804 (1982)). 

 Code § 18.2-268.10 provides: 

The failure of an accused to permit a blood 

or breath sample to be taken to determine 

the alcohol or drug content of his blood is 

not evidence and shall not be subject to 

comment by the Commonwealth at the trial of 

the case, except in rebuttal; nor shall the 

fact that a blood or breath test had been 

offered the accused be evidence or the 

subject of comment by the Commonwealth, 

except in rebuttal. 

 Here, because there were no test results, the Commonwealth 

was required to prove from other evidence that appellant drove 

while under the influence of alcohol. See Code § 18.2-266(ii); 

Brooks, 224 Va. at 315, 295 S.E.2d at 804. Therefore, the 

prosecutor's comment was an accurate and valid statement to 

prospective jurors advising them that chemical tests and the 

statutory rebuttable presumption of intoxication were not going 

to be used to prove that appellant was under the influence of 

alcohol. Furthermore, in her comments, the prosecutor made no 

reference whatsoever to appellant's refusal to submit to the 

chemical test as an explanation for the need to resort to other 

evidence. Accordingly, the trial court did not abuse its 

discretion in denying appellant's motion. 

 During rebuttal, the Commonwealth moved to admit into 

evidence Galati's arrest report in which Galati noted that 

appellant "stated 'I'm drunk.'" Defense counsel objected on the 

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basis that Galati "can testify as to what he said about it, but 

I don't believe the document comes into evidence, Your Honor." 

The trial judge admitted it without further comment. On appeal, 

appellant contends the trial court erred in admitting the arrest 

report because it contained inadmissible evidence regarding 

appellant's refusal to take a blood alcohol test. The back of 

the arrest report contains two references to "Refused" in the 

sections describing test locations. 

 Appellant failed to make a proper objection or move that 

the references to refusal be redacted. "The Court of Appeals 

will not consider an argument on appeal which was not presented 

to the trial court." Ohree v. Commonwealth, 26 Va. App. 299, 

308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18. Accordingly, 

Rule 5A:18 bars our consideration of this question on appeal. 

Moreover, the record does not reflect any reason to invoke the 

good cause or ends of justice exceptions to Rule 5A:18. 

 Accordingly, we affirm the judgment of the trial court. 

Affirmed.

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