COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata 

 and Senior Judge Hodges 

Argued at Richmond, Virginia 

ROBERT A. BRUCE, s/k/a 

 ROBERT ALLISON BRUCE 

v. Record No. 0273-94-2 MEMORANDUM OPINION* BY 

 JUDGE WILLIAM H. HODGES 

COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996 

FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY 

James M. Lumpkin, Judge Designate 

 Robert N. Johnson (Anne M. Johnson; Robert N. 

Johnson, Jr.; Robert N. & Anne M. Johnson, Inc., 

on briefs), for appellant. 

 Thomas C. Daniel, Assistant Attorney General 

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

brief), for appellee. 

 On appeal from his convictions of first degree murder and 

use of a firearm in the commission of a felony, Robert Bruce 

contends that the trial judge erred in (1) denying Bruce's motion 

to excuse a prospective juror for cause; (2) overruling Bruce's 

motion to strike the evidence at the end of the Commonwealth's 

case; (3) denying Bruce's renewed motion to strike the 

Commonwealth's evidence at the conclusion of the case; (4) 

denying Bruce's motion for a mistrial; (5) denying Bruce's motion 

to set aside the verdict; and (6) denying Bruce's written 

post-trial motion for a mistrial. 

 

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

designated for publication. 
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The Juror Issue

 "The standard to be applied . . . in 

determining whether to retain a venireman on 

the jury panel is whether his answers during 

voir dire . . . indicate . . . something that 

'would prevent or substantially impair the 

performance of his duties as a juror in 

accordance with his instructions and his 

oath.'" 

 Whether a prospective juror should be 

excused for cause is a matter resting within 

the sound discretion of the trial court, and 

its action in refusing to excuse a particular 

venireman will not be disturbed on appeal 

unless the refusal amounts to manifest error. 

Yeatts v. Commonwealth, 242 Va. 121, 134, 410 S.E.2d 254, 262 

(1991) (citations omitted), cert. denied, 503 U.S. 946 (1992). 

 Bruce asks us to adopt a per se rule disqualifying potential 

jurors in criminal cases whose spouses are law enforcement 

officials who have participated in the investigation of the crime 

that is the subject of the trial. We decline to adopt such a 

rule. 

 The trial judge found nothing in the voir dire answers of 

Jeanne Williams to indicate that her performance would be 

impaired if she was selected as a juror, and we find nothing in 

the record to show an abuse of discretion amounting to manifest 

error in the trial judge's refusal to excuse her for cause. 

 Williams indicated that she knew her husband was the only 

state trooper at the scene of the death. However, Williams also 

stated that her husband "discusses nothing job-related with me, 

nothing. I'm more ignorant than people out on the street." 

Williams said she had not formed an opinion as to the guilt or 
 3 

innocence of Bruce. When asked whether she could listen to the 

evidence and make up her own mind, Williams responded, "I think I 

could." 

 Considering Williams' assurances that she could decide the 

case based on the evidence, and considering Williams' 

manifestation that she had obtained no information about the case 

from her husband, we conclude that Bruce has shown no "manifest 

error" in the trial judge's retention of Williams as a 

prospective juror. See Stewart v. Commonwealth, 245 Va. 222, 

235, 427 S.E.2d 394, 403, cert. denied, 114 S. Ct. 143 (1993); 

Satcher v. Commonwealth, 244 Va. 220, 237, 421 S.E.2d 821, 831 

(1992), cert. denied, 113 S. Ct. 1319 (1993). 

The Sufficiency of the Evidence

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Where the 

evidence is entirely circumstantial 

 "all necessary circumstances proved must be 

consistent with guilt and inconsistent with 

innocence and must exclude every reasonable 

hypothesis of innocence. The chain of 

necessary circumstances must be unbroken. 

The circumstances of motive, time, place, 

means, and conduct must all concur to form an 

unbroken chain which links the defendant to 

the crime beyond a reasonable doubt." 

Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 

(1987) (citation omitted). 

 The evidence supported the conclusion that the victim did 
 4 

not commit suicide and that Bruce murdered the victim. On 

December 11, 1991, the victim was found in her home with a fatal 

bullet wound in her head. Bruce and the victim had been married 

since 1975. Dr. Jeffrey Fracher, the victim's psychologist, 

testified that the victim and appellant were having marital 

difficulties, and that the victim was planning to leave her 

husband on December 20, 1991. She had hired a lawyer and, 

according to Dr. Fracher, she was "looking forward to moving out 

and moving on." Dr. Fracher, who was experienced in recognizing 

suicidal inclinations, testified the victim did not exhibit 

suicidal thoughts. Dr. Fracher also stated that the victim's 

activities during the week before her death were "totally 

inconsistent with a suicide profile." These activities included 

attending a conference, arranging for a babysitter on the day she 

was to take the graduate admissions examination, and meeting her 

lawyer to discuss separation plans. The victim also had plans to 

live with her parents. Other Commonwealth witnesses testified 

that the victim did not exhibit suicidal tendencies because she 

continued to make plans for the future, even until the day before 

her death. 

 Further, the forensic evidence suggested that the victim did 

not commit suicide. Investigator Charles Bryant testified that 

the victim was wearing a glove on the hand with which she 

allegedly fired the gun. Bryant stated that the glove "was not 

completely on her hand as someone would normally wear a glove." 

The glove contained no gunshot residue. A gun was found two 
 5 

feet, four inches from the victim's outstretched right hand, and 

five feet, four inches from the head wound. Bruce, who allegedly 

found the victim's body, told Bryant that he may have kicked the 

gun. No fingerprints were recovered from the gun, the victim's 

eyeglasses, or papers found in the victim's lap. No suicide note 

was found. 

 Dr. Marcella Fierro, a pathologist, testified that the 

bullet travelled right to left, back and down, starting at the 

victim's right temple and stopping behind her left ear. 

Furthermore, Dr. Fierro stated that when she attempted to 

reconstruct the positioning of the shooting, she was unable to 

position the gun such that the bullet would have travelled along 

that path. 

 Ann Jones, a firearms expert and a woman of roughly the same 

size as the victim, testified that she attempted to replicate the 

crime scene. Jones had trouble firing the gun while wearing the 

glove, and she was unable to shake the gun off of her hand while 

wearing the glove loosely as the victim wore it. 

 Moreover, from the evidence presented, the jury could have 

inferred a motive for Bruce to take the victim's life. Constance 

Pepper, a life insurance agent, testified that on March 19, 1991, 

Bruce had changed his wife's life insurance policy so that he was 

the sole beneficiary of the policy. Ed Meeks, Bruce's courtappointed counsel in another matter, testified that appellant was 

in desperate need for money. Meeks stated that Bruce was facing 

a possible twenty-year prison sentence if he failed to make 
 6 

court-ordered restitution by mid-December 1991. Meeks testified 

Bruce had written Meeks that Bruce was willing to do almost 

anything to avoid going to jail. Bruce had forfeited his license 

to practice law and had stated that his only source of money was 

his mother's annuity fund. 

 Charles Lindsay and Robert Taylor testified that Bruce knew 

where Taylor kept the gun that was stolen from Taylor's truck and 

was used to kill the victim. Taylor also testified that the 

victim had never ridden in the truck in which the gun was kept. 

 Bruce presented evidence from a psychiatrist, who examined 

the victim's medical records and testified that the victim's 

behavior was consistent with a pattern of potential suicidal 

behavior. In addition, Dr. Robert Sinnenburg testified on behalf 

of Bruce. Dr. Sinnenburg stated that the victim's wound was 

"absolutely consistent" with a self-inflicted gunshot wound. 

 Although appellant offered alibi evidence concerning his 

activities on December 11, 1991, the jury had "a right to weigh 

the testimony of all the witnesses, experts and otherwise." Hill 

v. Commonwealth, 8 Va. App. 60, 64, 379 S.E.2d 134, 137 (1989) 

(en banc). The jury believed the testimony of the Commonwealth's 

witnesses. The testimony of the Commonwealth's witnesses was 

competent and was not inherently incredible. From the 

Commonwealth's evidence, the fact finder could have inferred that 

appellant killed the victim and attempted to make her death look 

like a suicide. Accordingly, the evidence was sufficient to 

prove beyond a reasonable doubt that appellant committed first 
 7 

degree murder.1

The Motion To Set Aside the Verdict

 Bruce contends that the trial judge erred in admitting 

evidence that Bruce was a defendant in a criminal proceeding, 

that he had to make restitution in a matter for which he could 

have received a twenty-year prison sentence, and that Bruce had 

surrendered his license to practice law. 

 The Supreme Court has upheld admission of prior offenses 

when offered to prove "(1) premeditation, (2) absence of mistake 

or accident, (3) motive or intent, (4) and the conduct and 

feelings of the accused toward his victim." Smith v. 

Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871, 878 (citations 

omitted), cert. denied, 498 U.S. 881 (1990). The evidence of 

Bruce's prior crimes was admissible to prove premeditation and 

motive. The probative value of the evidence outweighed any 

potential prejudice to Bruce. Therefore, the trial judge did not 

abuse his discretion in admitting the evidence. 

 Bruce asserts the trial judge erred in allowing the 

Commonwealth to "attack" the qualifications of Dr. Sinnenburg 

after the Commonwealth previously stipulated to his 

qualifications. However, the Commonwealth did not attack Dr. 

Sinnenburg's qualifications by indicating that Dr. Sinnenburg was 

 

 1 We will not consider the jury instruction issues since no 

appeal was granted by this Court on these issues. See Rule 

5A:12(c). For the same reason, we will not consider the 

assertion that the trial judge erred in failing to grant a change 

of venue. 
 8 

not board-certified in forensic pathology. Rather, on rebuttal, 

the Commonwealth attempted to impeach the credibility of Dr. 

Sinnenburg by showing that he was not board-certified in forensic 

pathology. Therefore, the trial judge did not err in admitting 

the evidence. 

 Dr. Fierro testified that three of the several thousand 

autopsies she had performed involved a gloved person who had 

committed suicide. On appeal, Bruce contends that this testimony 

was irrelevant and prejudicial. However, the evidence 

established Dr. Fierro's experience with similar cases. 

Therefore, it was relevant evidence. See Evans-Smith v. 

Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987). 

The Motions for a Mistrial

 "Whether to grant a mistrial rests within the discretion of 

the trial judge, and his or her decision may not be overturned 

unless a manifest probability exists that the denial of a 

mistrial was prejudicial." Hall v. Commonwealth, 14 Va. App. 

892, 902, 421 S.E.2d 455, 462 (1992) (citation omitted). 

 Under principles established in Brady v. 

Maryland, 373 U.S. 83 (1963), the 

Commonwealth must turn over evidence 

favorable to an accused that is material to 

either guilt or punishment. Id. at 87. In 

United States v. Bagley, 473 U.S. 667 (1985), 

the Court set forth the test for materiality, 

finding that 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." Id. at 682. 

* * * * * * * 

 "A defendant cannot simply allege the 
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presence of favorable material and win 

reversal of his conviction." United States 

v. Balliviero, 708 F.2d 934, 943 (5th Cir. 

1983)[, cert. denied, 464 U.S. 939 (1983)]. 

Rather, a defendant must prove the favorable 

character of evidence he claims has been 

improperly suppressed. Speculative 

allegations are not adequate. See United 

States v. Barshov, 733 F.2d 842, 848 (11th 

Cir. 1984), cert. denied, 469 U.S. 1158 

(1985). See also Black v. Collins, 962 F.2d 

394, 406-07 (5th Cir.), cert. denied, 504 U.S 

992 (1992). 

Hughes v. Commonwealth, 18 Va. App. 510, 525-26, 446 S.E.2d 451, 

460-61 (1994). 

 Appellant moved for a mistrial, asserting that the 

Commonwealth failed to disclose an audio tape containing a police 

interview of Don Williams in which Williams described a 

conversation that he had with the victim on the day of her death. 

 On the tape, Williams said the victim was crying and was "real 

depressed and she felt she didn't have anything . . . to live 

for." Appellant claims that because this evidence supported his 

defense that the victim was depressed and suicidal, the tape 

provided exculpatory information which would have assisted 

appellant in the preparation of his expert witness. Appellant 

also asserts that the tape would have assisted him in the 

preparation of the cross-examination of the Commonwealth's expert 

witness, who testified that the victim had a positive attitude 

prior to her death. 

 Appellant had full access to Williams prior to the trial and 

even called Williams to testify on behalf of appellant. During 

appellant's direct examination of Williams, Williams testified 
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concerning the same observations made on the tape recording -- 

that the victim appeared to be depressed on the day she died. 

The jury heard this evidence, considered it in conjunction with 

all of the evidence in the case, and found that appellant 

murdered the victim. 

 Further, appellant has not shown that a reasonable 

probability exists that the tape's disclosure would have resulted 

in a different outcome. Bagley, 473 U.S. at 683. The victim's 

own psychologist testified the victim did not exhibit suicidal 

thoughts and was looking forward to "moving on" with her life. 

Several other witnesses testified the victim did not exhibit 

suicidal tendencies and was planning for the future, even up 

until the time of her death. Moreover, Williams also said on the 

tape that, during his conversation with the victim, the victim 

did not indicate she intended to take her own life, and the 

victim said she "was trying to leave town and go stay with some 

relatives or take a new job." In addition, the scientific 

evidence did not support the suicide theory, and the Commonwealth 

presented evidence of a motive for appellant to kill his wife. 

 Accordingly, in light of all of the evidence, we cannot find 

a reasonable probability that the disclosure of the taped 

conversation would have produced a different outcome. Therefore, 

the trial judge did not abuse his discretion in denying 

appellant's motion for a mistrial on this basis. 

 Appellant also made a post-trial motion for a mistrial based 

upon the post-trial affidavit of another defense witness, Joyce 
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Edelen. In her affidavit, Edelen stated that, on the day the 

victim died, the victim told Edelen, "I am losing my mind." At 

the trial, Edelen did not testify that the victim made this 

statement. However, after Edelen testified, she informed the 

Assistant Commonwealth's Attorney that she then recalled the 

victim had made the statement. Appellant alleges that the 

Commonwealth was then obligated to disclose the information to 

appellant because it was exculpatory evidence and was crucial to 

appellant's expert witnesses' testimony because it supported the 

theory that the victim committed suicide. 

 As in the case with Williams, appellant had full access to 

Edelen prior to trial, and appellant called Edelen to testify on 

behalf of appellant. Further, it is speculative that the 

victim's statement, "I am losing my mind" was necessarily 

favorable to appellant and tended to support appellant's suicide 

theory. Moreover, for the same reasons as stated in the 

discussion of the Williams' taped interview, in view of the other 

evidence presented, appellant has not shown that a reasonable 

probability exists that the statement's disclosure would have 

resulted in a different outcome. See id. There was ample 

evidence from which the jury could have inferred beyond a 

reasonable doubt that appellant murdered his wife. Therefore, 

the trial judge did not abuse his discretion in denying the 

post-trial motion for a mistrial. 

 For the reasons stated, we conclude that the evidence was 

sufficient to prove beyond a reasonable doubt that Bruce 
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committed first-degree murder and used a firearm in the 

commission of the murder. Accordingly, the judgment of the trial 

court is affirmed. 

 Affirmed.