COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Richmond, Virginia 

BRUCE RANDALL ALLEN, S/K/A 

 BRUCE RANDLE ALLEN 

 MEMORANDUM OPINION* BY 

v. Record No. 2737-96-2 JUDGE JERE M. H. WILLIS, JR. 

 FEBRUARY 10, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY 

Thomas V. Warren, Judge 

 Amy M. Curtis (Theodore N. I. Tondrowski; 

Wayne R. Morgan, Jr.; Grennan & Tondrowski, 

on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Richard Cullen, Attorney General; Monica S. 

McElyea, Assistant Attorney General, on 

brief), for appellee. 

 Bruce Randall Allen contends that the trial court erred: 

(1) by failing to review statements made to law enforcement 

officials by alibi witnesses, (2) in refusing to require the 

Commonwealth to disclose said statements, and (3) in denying his 

motion to disqualify the Commonwealth's Attorney. We disagree, 

and affirm the judgment of the trial court. 

 On the evening of October 18, 1995, Allen and another man 

went to the home of Alan and Ida Bowlin. When Mr. Bowlin stepped 

outside to talk with Allen, Allen struck him, causing him to fall 

backwards. Allen then stabbed Mr. Bowlin, dragged him into the 

house, and stabbed him several more times. Allen and the other 

 

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

designated for publication. 
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man then stabbed Mrs. Bowlin to death. Before leaving, they 

stole several hundred dollars from Mr. Bowlin's wallet. 

 Allen was charged initially with capital murder, attempted 

capital murder and robbery. On May 29, 1996, a jury convicted 

him of first-degree murder, attempted capital murder and robbery. 

 I. DISCOVERY OF ALIBI WITNESS STATEMENTS

 On March 19, 1996, Allen filed a motion seeking discovery of 

all exculpatory evidence. At the hearing on the motion, Allen 

argued that he was entitled to statements made to the police by 

witnesses who provided alibis for himself, for his codefendant 

Larry Fowlkes, and for Sharddi Moore, who had been dismissed 

previously as a codefendant. The Commonwealth represented that 

it possessed "no evidence . . . that anybody is alibied . . . 

here for the complete period of time" during which the crimes 

were believed to have occurred. 

 The trial court ordered the Commonwealth to divulge the 

identity of each person who "gave a partial, a full, or even a 

small bit of alibi regarding . . ." either Fowlkes or Allen. 

Subsequently, the Commonwealth provided Allen with the names and 

addresses of persons identified as potential alibi witnesses. 

 On April 18, 1996, Allen moved to compel discovery. He 

asserted that the statements of Fowlkes and Moore were 

exculpatory because they showed that neither man was with Allen 

on the night of the murder. The Commonwealth's Attorney informed 

the trial court that he knew of no exculpatory statements from 
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Fowlkes and Moore. He stated that initially both Fowlkes and 

Moore had denied involvement in the crimes, but that later Moore 

had confessed his involvement to another person. He stated that 

Moore had given two further statements in which he claimed to 

have been at two different locations during the same period of 

time. The Commonwealth's Attorney stated that Fowlkes claimed 

that he had attended church until 9:00 p.m. on the evening in 

question and that three witnesses supported his alibi. The trial 

court denied Allen's request for Fowlkes' and Moore's statements. 

 In addition, Allen argued that the statements given to 

police by Fowlkes' and Moore's alibi witnesses constituted 

material and exculpatory evidence because they tended to 

depreciate the value of testimony from the anticipated 

Commonwealth's witnesses. He requested disclosure of statements 

made to the police by his potential alibi witnesses. He set 

forth the content of their expected statements. Allen admitted 

that the Commonwealth had provided him the names of his potential 

alibi witnesses and that they were not unavailable to him. The 

trial court again denied Allen's motion that the Commonwealth be 

required to disclose any statements made by potential alibi 

witnesses. 

 A. 

 Allen contends that the trial court erred in failing to 

review the alibi witness statements in camera. We disagree. 

 In Virginia, defendants have no general constitutional right 
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to discovery in criminal matters. However, Rule 3A:11 provides 

for limited disclosure by the Commonwealth in felony cases. In 

addition, "suppression by the prosecution of evidence favorable 

to the accused upon request violates due process where the 

evidence is material either to guilt or to punishment . . . ." 

Brady v. Maryland, 373 U.S. 83, 87 (1963). See Code 

§ 19.2-265.4. 

 Generally, "[i]f in doubt about the exculpatory nature of 

the material, a prosecutor should submit it to the trial court 

for an in camera review to determine if it is exculpatory and 

should be disclosed." Lemons v. Commonwealth, 18 Va. App. 617, 

621, 446 S.E.2d 158, 161 (1994). Ultimately, however, "[w]hether 

evidence is material and exculpatory and, therefore, subject to 

disclosure under Brady is a decision left to the prosecution." 

Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111 

(1994) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987)). 

 In Bowman, the Supreme Court noted that: 

 The trial court's determination of the 

question whether it should undertake the 

review of the disputed material is a 

discretionary matter. Whether that 

discretion was properly exercised will depend 

on the specific factors of each case, such as 

the reasons given by the defense in 

justifying access to the disputed material, 

the time of the request, or the amount of 

material involved. 

Id. at 135-36, 445 S.E.2d at 113 (citations omitted) (emphasis 

added). Noting discrepancies in the trial testimony and the 

limited burden of reviewing a single document, the Supreme Court 
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concluded that the trial court abused its discretion by denying 

Bowman's motion that it review the report in camera. Id. at 136, 

445 S.E.2d at 113. The Court found further error in the trial 

court's refusal to place the disputed evidence under seal in the 

record on appeal. Id.

 Allen did not move the trial court to review the witness 

statements.1 Nor did he move that the documents be placed under 

seal for the record on appeal. "[S]peculation that such 

statements might contain 'potentially exculpatory evidence' 

imposes neither a duty of disclosure upon the Commonwealth, nor a 

duty of inspection in camera by the court." Ramdass v. 

Commonwealth, 246 Va. 413, 420, 437 S.E.2d 566, 570 (1993) 

(citations omitted). We need not rule upon the non-exercise of a 

judicial power that was not invoked. While the trial court could 

have reviewed the statements in camera sua sponte, it was not 

required to do so. 

 B. 

 Allen contends that the trial court erred in denying his 

motion to require the Commonwealth's disclosure of any alibi 

witness statements made to the police. We disagree. 

 Under Brady v. Maryland, it is only the 

 

 1In his discovery motion, Allen requested "[a]ny and all 

reports and records which show that the witness has given an 

inconsistent or contradictory statement with regard to any matter 

in this case." At the pretrial hearing on the motion, Allen 

asked that the trial court review the information in camera to 

determine whether inconsistent statements existed. The trial 

court denied the request, and Allen does not appeal that 

decision. 
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suppression of "material" exculpatory 

evidence by the government that violates a 

defendant's due process rights. Evidence 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' of a different 

result is [] shown when the Government's 

evidentiary suppression 'undermines 

confidence in the outcome of the trial'." 

Hoke v. Netherland, 92 F.3d 1350, 1356 (4th Cir.), cert. denied, 

117 S. Ct. 630 (1996) (citations omitted). 

 Allen failed to secure the statements for the record on 

appeal, or to request that they be placed under seal for our 

review. Thus, we cannot determine whether the Commonwealth 

withheld evidence required to be disclosed under Brady.2

 "A defendant cannot simply allege the 

presence of favorable material and win 

reversal of his conviction." Rather, a 

defendant must prove the favorable character 

of evidence he claims has been improperly 

suppressed. Speculative allegations are not 

adequate. 

Hughes v. Commonwealth, 18 Va. App. 510, 526, 446 S.E.2d 451, 461 

(1990) (en banc) (citations omitted) (emphasis in original). 

 "'[T]he Brady rule does not apply if the evidence in 

 

 2"Even if the statement is favorable to the defendant on the 

issue of guilt or punishment, it must also be material before the 

defendant is entitled to a new trial." Humes v. Commonwealth, 12 

Va. App. 1140, 1143, 408 S.E.2d 553, 555 (1991). Because we 

cannot state that the extrajudicial statements are exculpatory, 

we need not determine whether they are "material," despite their 

potential utility in preparing and presenting Allen's case. See

White v. Commonwealth, 12 Va. App. 99, 102-04, 402 S.E.2d 692, 

695, aff'd on reh'g en banc, 13 Va. App. 284, 410 S.E.2d 412 

(1991). 
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question is available to the defendant from other sources.'" 

United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990) 

(citation omitted). See Hoke, 92 F.3d at 1355-56. In Wilson, 

the defendant sought discovery of statements made by a potential 

alibi witness to government officials. He supported his 

discovery request with an affidavit from the witness that 

detailed her alleged interactions with government officials. 

Wilson, 901 F.2d at 380-81. The trial court denied his request. 

 The Court of Appeals found no Brady violation because Wilson was 

free to question the alibi witness in preparation for trial. Id.

at 381. The Court noted that: "In situations such as this, 

where the exculpatory information is not only available to the 

defendant but also lies in a source where a reasonable defendant 

would have looked, a defendant is not entitled to the benefit of 

the Brady doctrine." Id.

 The Commonwealth provided Allen the identities of his alibi 

witnesses. Allen acknowledged that he received the list and that 

the witnesses were not unavailable to him. He described in his 

motion the contents of the alleged statements, and the alibi 

witnesses' testimony at trial was consistent with those 

assertions. 

 II. DISQUALIFICATION OF PROSECUTOR

 In 1983, before he was elected Commonwealth's Attorney, Mayo 

Gravatt represented Allen on charges resulting in his conviction 

for breaking and entering and petit larceny. Allen moved to 
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disqualify Mr. Gravatt from prosecuting this case because they 

had "shared an Attorney/Client privilege and Allen disclosed to 

his Attorney, Gravatt, confidential information concerning the 

case and himself." Allen contends that the trial court abused 

its discretion in denying this motion. We disagree. 

 "The decision whether to disqualify a Commonwealth's 

attorney in a particular case is committed to the sound 

discretion of the trial court." Lux v. Commonwealth, 24 Va. App. 

561, 569, 484 S.E.2d 145, 149 (1997). However: 

 A trial court should grant a criminal 

defendant's motion to disqualify under 

circumstances where it can be reasonably 

inferred that the Commonwealth's attorney has 

either a personal interest in the outcome of 

the prosecution or an interest arising from 

his or her former representation of the 

defendant that conflicts with the fair minded 

exercise of his or her prosecutorial 

discretion. 

Id. at 570-71, 484 S.E.2d at 149. See Cantrell v. Commonwealth, 

229 Va. 387, 329 S.E.2d 22 (1985). 

 In Kilgore v. Commonwealth, 15 Va. App. 684, 426 S.E.2d 837 

(1993), we held that "where a prosecutor previously has 

represented a defendant it is reversible error for that attorney 

to assist in a later prosecution of a former client on a matter 

for which the attorney-client relationship has been established." 

Id. at 694, 426 S.E.2d at 842. The "sacred relationship" 

between an attorney and a client: "'is severely compromised, if 

not destroyed, when after representing a client, a lawyer joins 

in the criminal prosecution of that client with respect to the 
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identical matter about which the attorney originally counseled 

the client.'" Id. (quoting United States v. Schell, 775 F.2d 

559, 565 (4th Cir. 1985) (emphasis in original). 

 Whether a Commonwealth's attorney should be disqualified 

from prosecuting a defendant with whom the Commonwealth's 

attorney had a prior attorney-client relationship in an unrelated 

criminal matter is an issue of first impression in Virginia. 

Several jurisdictions have required or upheld disqualification of 

prosecutors who previously had an attorney-client relationship 

with the defendant. 

 In Mattress v. State, 564 S.W.2d 678 (Tenn. Crim. App. 

1977), the court upheld the trial court's disqualification of the 

prosecutor. Because the prosecutor had previously represented 

the codefendants on unrelated criminal charges, the Tennessee 

court found that disqualification was proper and "adequate to 

dispel any appearance of impropriety," even though the prosecutor 

did not recall the prior representation. Id. at 679. 

 Similarly, in Reaves v. State, 574 So.2d 105 (Fla. 1991), 

the Florida Supreme Court explained that disqualification was 

required of a prosecutor "who previously has defended the 

defendant in any criminal matter that involved or likely involved 

confidential communications with the same client." Id. at 107. 

In Reaves, the prosecutor of a murder charge had represented the 

defendant previously on grand larceny charges. The larceny 

charge involved issues involved in the murder case, particularly 
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mitigating factors to be considered during the penalty phase. 

Id. at 106. See also State v. Stenger, 760 P.2d 357 (1988) 

(disqualifying prosecutor in capital case where defendant had 

acknowledged uncharged crimes, drug use, and anti-social behavior 

to the prosecutor during prior representation by the prosecutor 

on unrelated matter). 

 However, the majority of jurisdictions holds that "[w]here 

the prosecutor's earlier representation of the defendant was in 

an unrelated matter . . . disqualification is not required, 

especially if a number of years have passed since the earlier 

representation."3

 63C Am. Jur. 2d Prosecuting Attorneys § 27 

(1984) (footnotes omitted). See generally Allan L. Schwartz and 

Danny R. Veilleux, Annotation, Disqualification of Prosecuting 

Attorney in State Criminal Case on Account of Relationship with 

 

 3See, e.g., Havens v. Indiana, 793 F.2d 143 (7th Cir. 1986); 

United States v. Bolton, 905 F.2d 319, 322 (10th Cir. 1990); 

Edwards v. State, 286 So.2d 308, 311 (Ala. Crim. App. 1973) 

(holding that prosecutor need not recuse self in murder 

prosecution when represented defendant on unrelated charge one 

year earlier); Osborn v. District Court, Fourteenth Judicial 

Dist., 619 P.2d 41 (Colo. 1980) (prosecution for burglary after 

representing defendant thirteen years earlier on disorderly 

conduct charge not "substantially related"); Park v. State, 170 

S.E.2d 687 (Ga.), modified, 408 U.S. 935 (1969); State v. 

Laughlin, 652 P.2d 690 (Kan. 1982); Cole v. Commonwealth, 553 

S.W.2d 468, 472 (1977) (prosecution's use of conviction from 

prior representation matter of public record); State v. Johnson, 

310 So.2d 600 (La. 1975); People v. Vanderpool, 629 N.Y.S.2d 307 

(N.Y. App. Div. 1995) (inference of impropriety stemming from 

prior representation of defendant ten years earlier in unrelated 

criminal matter not sufficient to warrant special prosecutor 

absent proof of prejudice); Munguia v. State, 603 S.W.2d 876, 

878-79 (Tex. Crim. App. 1980) (prosecutor that represented 

defendant on rape charge not disqualified from assisting in 

subsequent aggravated rape prosecution). 
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Accused, 42 A.L.R.5th 581, § 4 (1996). 

 For example, in Green v. State, 430 A.2d 1122 (Md. Ct. Spec. 

App. 1981), the defendant contended that his conviction for theft 

should be reversed because the prosecutor had represented him two 

years earlier on charges resulting in his conviction for petit 

larceny. Id. at 1124. Rejecting this argument, the Maryland 

court held: 

 The mere fact that as a private attorney 

the prosecutor had once represented appellant 

in an unrelated case did not, standing alone, 

result in a conflict of interest such as to 

disqualify that attorney from acting as 

prosecutor in the instant case. On the 

record before us, there is no claim or 

indication that at the time the instant 

charge was brought against appellant there 

existed any attorney-client relationship 

between him and the prosecutor . . . . Nor 

is there any claim or indication that in 

investigating or prosecuting the present case 

the prosecutor made use of any confidential 

information he may have received from the 

appellant in the prior case. 

Id.

 We find the majority view persuasive. Attorneys litigate in 

an adversarial system. They are called upon to take various 

positions in representing people under differing circumstances. 

The Commonwealth's attorney must maintain impartiality and must 

guard against any improper bias in securing a fair trial for the 

accused. See Kilgore, 15 Va. App. at 693, 426 S.E.2d at 842 

(1993). However, the Commonwealth's attorney must be free to 

perform his or her prosecutorial duties, unless restrained by 

actual impropriety or prejudice, or by a substantial risk 
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thereof. See Lux, 24 Va. App. at 574, 484 S.E.2d at 151 (holding 

that due process does not entitle defendant to trial free of the 

appearance of impropriety). 

 Nothing in the record suggests that Mr. Gravatt's 

representation of Allen on an unrelated matter thirteen years 

prior to this case imposed any impediment to his impartial 

prosecution of this case. Allen has made no representation or 

showing that his relationship with Mr. Gravatt continued in any 

respect, or that Mr. Gravatt possessed any confidential 

information that would influence the performance of his duties. 

 The only connection between the two unrelated proceedings 

lies in the statutory mandate that "the Commonwealth shall 

present the defendant's prior criminal convictions" during the 

jury's sentencing proceeding. See Code § 19.2-295.1. While the 

record does not disclose whether the jury received notice of 

Allen's criminal history, we hold that the presentation of a 

prior conviction, a ministerial act concerning a matter of public 

record, did not involve revelation of confidential information. 

The earlier representation created neither actual prejudice, nor 

a suggestion of prejudice. 

 The judgment of the trial court is affirmed. 

 Affirmed.
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Benton, J., concurring. 

 I concur in Parts IA and II. I also concur in the portion 

of Part IB which holds that because the record does not contain 

the statements at issue we have no basis to determine whether a 

Brady violation occurred. Therefore, I concur in the judgment 

affirming the convictions.