COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Elder 

Argued at Richmond, Virginia 

OLAN CONWAY ALLEN 

v. Record No. 2560-93-2 OPINION BY 

 JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA AUGUST 15, 1995 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Michael T. Hemenway (George H. Dygert & 

 Associates, on briefs), for appellant. 

 Richard B. Smith, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, 

 on brief), for appellee. 

 The appellant, Olan Conway Allen, was convicted of breaking 

and entering and grand larceny. On appeal, he contends that the 

Commonwealth failed to produce exculpatory evidence as required 

by Brady v. Maryland, 373 U.S. 83 (1963), that the indictments 

should have been dismissed on double jeopardy grounds, and that 

the trial court gave an improper jury instruction. For the 

following reasons, we affirm the trial court's decisions. 

 In 1992, the appellant was charged with breaking and 

entering and grand larceny. A jury found him guilty on both 

charges. Before sentencing and entry of the conviction orders, 

the Commonwealth's attorney moved for a mistrial on the ground 

that one of the petit jurors was not qualified under 

Code § 8.01-337 because she was not a resident of Albemarle 

County, but rather resided in the City of Charlottesville. The 
 -2- 

 

appellant agreed that because the juror was not qualified to 

serve, the guilty verdicts could not stand. However, the 

appellant requested that the charges be dismissed. The trial 

court granted the Commonwealth's motion to declare a "mistrial" 

and set aside the verdicts. Second and third trials ended in 

mistrials; however, in a fourth trial, the appellant was 

convicted of both charges, from which this appeal followed. 

I. DOUBLE JEOPARDY 

 The appellant contends that the trial court erred by not 

dismissing the charges against him after the court erroneously1

granted the Commonwealth's motion for a "mistrial" at the 

conclusion of the first trial. He argues that he was in jeopardy 

at the first trial, and because the court erred in setting the 

verdicts aside, the Commonwealth is prohibited from placing him 

in jeopardy a second time. 

 When the trial judge considered the Commonwealth's motion 

for a "mistrial," the appellant acquiesced in the Commonwealth's 

position that the guilty verdicts had been rendered by a jury 

improperly constituted and had to be set aside. He argues, 

however, that in agreeing that the verdicts could not stand, he 

 1 Insofar as the record reflects, at the post-trial motion to 

set aside the verdicts, the trial judge, Commonwealth's attorney, 

and defense counsel believed, in good faith, that because the 

juror was not qualified, the verdicts were invalid and had to be 

set aside. However, the Attorney General concedes on appeal that 

based upon the provisions of Code § 8.01-352(b) and the holding in 

Thurman v. Commonwealth, 107 Va. 912, 915, 60 S.E. 99, 100 (1908), 

the irregularity did not invalidate the verdicts or justify the 

trial court in setting them aside. 
 -3- 

was not acquiescing in the court declaring a "mistrial." 

Apparently, the appellant, for purposes of double jeopardy 

protections, is attempting to draw a meaningful distinction 

between a trial court setting aside guilty verdicts and declaring 

a mistrial. However, on the facts of this case, we find no 

rational distinction, for purposes of determining former 

jeopardy, between the appellant agreeing, in effect, to the trial 

court's setting aside the verdicts and agreeing to declare a 

"mistrial." The fact that the Commonwealth's attorney moved for 

a mistrial, rather than to set aside the verdicts, and the trial 

court used that terminology is of no consequence. The appellant 

agreed that because the juror was not qualified, the verdicts 

could not stand. Therefore, both parties concurred, in effect, 

in the Commonwealth's motion for a "mistrial" or to set aside the 

verdict on the mistaken belief that such action was required due 

to a defect in constituting the jury. 

 The Double Jeopardy Clause of the Fifth Amendment provides 

that no person shall be "twice put in jeopardy of life or limb" 

for the same offense. 

 As the Supreme Court has explained: The 

underlying idea, one that is deeply ingrained 

in at least the Anglo-American system of 

jurisprudence, is that the State with all its 

resources and power should not be allowed to 

make repeated attempts to convict an 

individual for an alleged offense, thereby 

subjecting him to embarrassment, expense and 

ordeal and compelling him to live in a 

constant state of anxiety and insecurity as 

well as enhancing the possibility that even 

though innocent he may be found guilty. 
 -4- 

United Stated v. Ham, 1995 WL 369605,*3 (4th Cir. June 20, 1995) 

(quoting Green v. United States, 355 U.S. 184, 187-88 (1957)). 

 A citizen may relinquish or waive a constitutional right or 

protection, but before being considered to have done so, the 

action constituting a waiver or relinquishment must be clear. 

For example, a defendant waives his Fifth Amendment protection 

contained in the Double Jeopardy clause by consenting to the 

trial court's declaration of a mistrial, see United States v. 

Jorn, 400 U.S. 470, 484-85 (1971) and Ham (citing multiple 

circuits that have adopted an implied consent rationale), 

provided the prosecutor is not guilty of misconduct designed to 

induce a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 673 

(1982) (holding that a defendant may invoke the double jeopardy 

bar if the conduct causing the mistrial was based on 

prosecutorial or judicial misconduct intended to provoke the 

defendant into moving for a mistrial). Similarly, a citizen may 

waive his Fourth Amendment right to be free from unreasonable 

searches and seizures by consenting to a warrantless unjustified 

search. Limonja v. Commonwealth, 8 Va. App. 532, 539, 383 S.E.2d 

476, 480 (1989), cert. denied, 495 U.S. 905 (1990). A suspect 

may also give up his Fifth Amendment right to not be compelled to 

give incriminating evidence by voluntarily testifying or by 

knowingly consenting to answer questions during an extra-judicial 

custodial interrogation. Jenkins v. Anderson, 447 U.S. 231 

(1980). Pugliese v. Commonwealth, 16 Va. App. 82, 428 S.E.2d 16 
 -5- 

(1993). A defendant's consent to a trial court's action 

declaring a mistrial may be implied from circumstances, provided 

they clearly indicate that the defendant acquiesced in the 

actions of the prosecutor or the court. See Ham at *4. See also

United States v. Puleo, 817 F.2d 702, 705 (11th Cir.), cert. 

denied, 489 U.S. 978 (1987) (holding that "consent 'may always be 

implied from a totality of the circumstances attendant on the 

declaration of a mistrial'") (quoting United States v. Goldstein, 

479 F.2d 1061, 1067 (2nd Cir.), cert. denied, 414 U.S. 873 

(1973)). 

 Although the trial court characterized its action in voiding 

the verdicts as a mistrial, the court was setting aside the 

verdicts. See Blacks Law Dictionary, 1002 (6th ed. 1990) 

(defining a mistrial as a trial not resulting in a lawful 

decision or verdict because of serious prejudicial misconduct or 

error). Regardless of the terminology used by the trial court, 

for purposes of the former jeopardy protection, we find no 

difference of constitutional significance between setting aside a 

verdict because of error in the composition of the jury and 

declaring a mistrial had the same error been discovered before 

the verdict. Here, the defendant agreed with the trial court's 

erroneous holding that the verdicts could not stand due to the 

error in constituting the jury. By agreeing that the verdicts 

could not stand, the defendant consented to the court's action 

setting aside the verdicts. By agreeing that the jury was 
 -6- 

improperly constituted and that the verdicts were invalid, the 

appellant invited the trial judge to set aside the verdicts. We 

hold that in doing so, the defendant waived his double jeopardy 

protections. See Puleo, 817 F.2d at 705. 

 "No litigant, even a defendant in a criminal case, will be 

permitted to approbate and reprobate--to invite error, as the 

defense admittedly did here, and then to take advantage of the 

situation created by his own wrong." Fisher v. Commonwealth, 236 

Va. 403, 417, 374 S.E.2d 46, 54 (1988), cert. denied, 490 U.S. 

1028 (1989). 

II. EXCULPATORY EVIDENCE 

 The appellant next contends that the Commonwealth wrongfully 

withheld from him exculpatory material. 

 No general constitutional right to discovery exists in a 

criminal case. Weatherford v. Bursey, 429 U.S. 545, 559 (1977). 

 Rule 3A:11 defines the scope of discovery in a felony 

prosecution. In addition, however, Brady recognizes the 

prosecution's due process-based duty to disclose to an accused 

exculpatory evidence, that is, evidence which is material to 

guilt or punishment and favorable to the accused. Williams v. 

Commonwealth, 16 Va. App. 928, 932-33, 434 S.E.2d 343, 346 

(1993). See also Knight v. Commonwealth, 18 Va. App. 207, 212, 

443 S.E.2d 165, 168 (1994). However, in order to justify 

reversal on appeal, an appellant must not only show that 

exculpatory evidence was not disclosed, but must show prejudice 
 -7- 

as a result of the Commonwealth's failure to disclose. Stotler 

v. Commonwealth, 2 Va. App. 481, 484, 346 S.E.2d 39, 40-41 

(1986). 

 At trial, an investigator testified that he showed 

photographs of possible suspects to the witnesses "sometime in 

the latter part of August," which would have been a few days 

after the crimes occurred. After trial, the investigator told 

the defense that he determined the actual dates were in mid-tolate September. The appellant argues that the investigator's 

uncertainty as to the exact date was exculpatory and that the 

Commonwealth should have disclosed that the investigator was 

uncertain in response to the request for exculpatory evidence. 

Appellant argues that with this evidence, he could have shown 

that the witness was mistaken and not credible, that the 

identification was suspect because of the lapse in time, or that, 

perhaps, more than one suggestive lineup occurred. 

 We do not find the investigator's uncertainty as to the 

precise date of the photographic lineup to be significant or 

exculpatory. The witness's answer was not specific; it included 

a time frame of several weeks. Furthermore, had the appellant 

known and been able to show at trial that the investigator was 

uncertain whether the photographic lineup was conducted in August 

or September, we cannot say that it probably would have produced 

a different outcome or result in the trial. See United States v. 

Bagley, 473 U.S. 667, 682 (1985). This type of uncertainty or 
 -8- 

discrepancy in evidence frequently occurs and is elicited at 

trial during cross-examination. See Epperly v. Booker, 997 F.2d 

1, 9 (4th Cir.), cert. denied, 114 S. Ct. 611 (1993) (stating 

that a prosecutor cannot be deemed to have wrongly suppressed 

exculpatory evidence when it was available from other sources 

such as cross-examination). On the facts of this case, the 

Commonwealth was not required to determine the degree to which 

the investigator was certain of the date on which he conducted 

the photographic lineup and was not required to provide such 

information under its duty to disclose exculpatory evidence. 

 The appellant also contends that the Commonwealth withheld 

evidence of an interview with the appellant's cousin, Betty 

Sheffey, in which Sheffey told the investigators that the 

appellant was not involved in the crime. Sheffey's statement was 

an unfounded conclusion and was not exculpatory. She gave no 

facts or information to the officers that she knew of the 

appellant's whereabouts or why she believed him not to have been 

involved. An unfounded belief, such as the one given by Sheffey, 

is not exculpatory evidence which the prosecution is required to 

disclose. 

III. JURY INSTRUCTIONS 

 The appellant contends that the trial court improperly 

instructed the jury by omitting an essential element in the 

breaking and entering instruction. Instruction No. 5 stated: 

 OLAN C. ALLEN is charged with the crime of 

breaking and entering. The Commonwealth must 

prove beyond a reasonable doubt each of the 
 -9- 

following elements of that crime: 

 (1) That the dwelling house of Henry and 

Ruth Chiles was broken into and entered 

without permission; and 

 (2) That the breaking and entering was done 

in the daytime; and 

 (3) That it was done with the intent to 

commit larceny. 

 If you find from the evidence that the 

Commonwealth has proved beyond a reasonable 

doubt each of the above elements of the 

offense as charged, then you shall find OLAN 

C. ALLEN guilty. 

 The appellant argues that the instruction is fatally flawed 

because it does not tell the jury that they were required to find 

beyond a reasonable doubt that Olan Conway Allen, the defendant, 

was the person who broke and entered the Chiles' home. He 

contends that the instruction allowed the jury to find him guilty 

if they found that a breaking and entering occurred without 

finding that he was the criminal agent. 

 The appellant acknowledges that he did not object to the 

giving of Instruction No. 5 in this form. Generally, Rule 5A:18, 

requiring a contemporaneous objection, would bar the appellant 

from raising the issue on appeal. He contends, however, that in 

order to avoid a miscarriage of justice, we must consider the 

trial court's failure to instruct the jury on the fundamental 

requirement that the Commonwealth prove that the defendant was 

the criminal agent. 

 "[T]o avail himself of the [ends of justice exception] the 
 -10- 

defendant had to affirmatively show that 'a miscarriage of 

justice [has] occurred, not . . . that a miscarriage might have 

occurred' [and it] requires that the error be clear, substantial 

and material." Brown v. Commonwealth, 8 Va. App. 126, 132, 380 

S.E.2d 8, 11 (1989) (quoting Mounce v. Commonwealth, 4 Va. App. 

433, 436, 357 S.E.2d 742, 744 (1987)). 

 While the ends of justice exception is narrow, Mounce, 4 Va. 

App. at 436, 357 S.E.2d at 744, the exception "requires 

correction of an instruction which allows a jury to convict a 

defendant without proof of an element of a crime." Campbell v. 

Commonwealth, 14 Va. App. 988, 992, 421 S.E.2d 652, 654 (1992), 

aff'd, 246 Va. 174, 431 S.E.2d 648 (1993). One may not be 

convicted for conduct which is not criminal. Jimenez v. 

Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). The 

overriding purpose of jury instructions is to "inform the jury as 

to the law." Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 

S.E.2d 775, 777 (1986) (quoting 75 Am. Jur. 2d Trial § 573 

(1974)). When informing the jury, the trial court must be 

careful to do so in such a manner as to not mislead the jury. 

Id. The trial court has an affirmative duty to properly 

instruct. Jimenez, 241 Va. at 250, 402 S.E.2d at 681. 

 Even though we accept the appellant's contention that 

Instruction No. 5 did not expressly inform the jury that in order 

to find the defendant guilty, they must find that he was the 

person who broke and entered the Chiles' home, that requirement 
 -11- 

of proof was clearly implicit in the trial process from 

indictment through arraignment and verdict. Also, it was part of 

the other instructions, including the instruction on larceny. 

Thus, on this record, Instruction No. 5 as given could not have 

misled the jury or allowed them to find the defendant guilty 

without finding that he was the criminal agent. The evidence 

proved beyond a reasonable doubt that a crime had been committed 

and that the defendant committed it. The appellant could not 

have been convicted for conduct that was not criminal. Moreover, 

because the jury could not reasonably have applied Instruction 

No. 5 absent proof of criminal agency, no miscarriage of justice 

occurred. Because no miscarriage of justice could have resulted 

from the failure to have stated expressly the obvious requirement 

in the jury instruction, appellate review of the issue is barred 

by Rule 5A:18. 

 Accordingly, we affirm the convictions. 

Affirmed.