
    CIRCUIT COURT OF THE CITY OF SUFFOLK
    Commonwealth of Virginia v. Martin Leonard Potter
    March 20, 2001
    Case Nos. CRF00701 to CRF00706
   By judge D. Arthur Kelsey

The defendant, Martin Leonard Potter, stands accused of capital murder, attempted robbeiy, statutory burglary, and unlawful use of a firearm. According to the Commonwealth, the murder took place at 5424 Pruden Boulevard, Suffolk, Virginia, at a home owned by the grandfather of the young man killed. Over the objection of die grandfather, the defendant moves the Court for a discovery order compelling an inspection of his residence. See Motion to View and Inspect (Feb. 9,2001).

The defendant concedes that Virginia Supreme Court Rule 3A:ll(bX2) permits discovery only of items “that are within the possession, custody, or control of the Commonwealth.” The defendant argues, however, that he has a constitutional right to inspect the grandfather’s private residence. The Commonwealth objects to the motion, claiming the defendant ‘^wishes to engage in a fishing expedition” and has not articulated any specific reason why the inspection would materially improve the defendant’s ability to defend himself. See Brief in Opposition to Defendant’s Motion to View the Crime Scene (March 9,2001).

“There is no general constitutional right to discovery in a criminal case,” Weatherford v. Bursey, 429 U.S. 545, 559 (1977), and indeed, “the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded,” Wardius v. Oregon, 412 U.S. 470, 474 (1973). Virginia courts have consistently reached the same conclusion. See, e.g., Blackmon v. Commonwealth, 33 Va. App. 728, 735, 536 S.E.2d 918, 921 (2000) (“defendant does not have a general constitutional right to discovery in a criminal case”); see also Swisher v. Commonwealth, 256 Va. 471, 480, 506 S.E.2d 763, 768 (1998); Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124 (1996); Watkins v. Commonwealth, 229 Va. 469, 479, 331 S.E.2d 422, 430 (1985); Stotler v. Commonwealth, 2 Va. App. 481, 483, 346 S.E.2d 39, 40 (1986).

Though acknowledging fee absence of any precedent on this point from fee U.S. Supreme Court or fee Virginia Supreme Court, a panel of the Virginia Court of Appeals in Henshaw v. Commonwealth, 19 Va. App. 338, 451 S.E.2d 415 (1994) (Cole, J.), recognized a limited constitutional right of a defendant to a court-ordered inspection of a crime scene owned by a private citizen. But cf. Clark v. Commonwealth, 33 Va. App. 536, 535 S.E.2d 181 (2000), vacating on an evenly divided en banc vote 31 Va. App. 96, 521 S.E.2d 313 (1999) (Cole, J.) (recognizing a constitutional right of a defendant accused of a sex offense to compel a medical examination of fee victim of fee crime). Though Henshaw found such a right existed, the opinion provides, at best, inexact guidance on fee standard to be used in determining whether fee defendant has made a sufficient showing to implicate the constitutional right to discovery. Henshaw states feat fee trial court must order an inspection when it may likely lead to “relevant and material” information — feat is, so long as no “special circumstances” exist suggesting feat “the private citizen’s constitutional right to privacy outweighs fee accused’s right to view or inspect the premises.” Henshaw, 19 Va. App. at 346, 451 S.E.2d at 420. Under this standard, fee defendant need only make a "prima facie showing” of relevance and materiality. Id. Elsewhere in the opinion, however, Henshaw states feat a “substantial basis” must be shown before fee right to inspect accrues. Id. And, whatever fee proper standard, it must “be kept in mind” feat fee physical condition of a crime scene is “generally relevant” in a criminal case. Henshaw, 19 Va. App. at 346, 451 S.E.2d at 419-20 (quoting from Mercer v. Commonwealth, 150 Va. 588, 600-01, 142 S.E. 369, 372-73 (1928)).

The Court will leave for another day whether a mere prima facie standard or some heightened requirement (like a “substantial basis” test) should govern fee right recognized in Henshaw, as well as fee question whether the grandfather’s privacy rights should take precedence over fee defendant’s putative right to discovery. To date, the defendant has not provided the Court wife any specific proffer explaining how fee physical characteristics of fee grandfather’s home would be relevant and material to the factual allegations (either by the Commonwealth or by the defendant) surrounding this crime. Nothing in Henshaw requires the Court to presume that all crime scenes, as a matter of constitutional law, should be deemed relevant enough to mandate a court-ordered inspection.

The defendant claims he has a sufficiently specific proffer that would satisfy the requisite relevance and materiality tests, and he invites the Court to hear this proffer in camera. The Court cannot accept this proposal. It would be an improper ex parte communication that would violate the Commonwealth’s right to participate in these proceedings and to advocate its views. Without being aware of the defendant’s specific proffer of relevance, the Commonwealth could hardly argue intelligently against it or, for that matter, contend that “special circumstances” exist tipping the balance in favor of the grandfather’s privacy rights. Henshaw, 19 Va. App. at 346, 451 S.E.2d at 420.

The Court will grant the defendant leave until March 30,2001, to file a supplemental brief outlining the specific reasons why (i) the information expected to be obtained from requested inspection is both relevant and material to the defense, and (ii) no special circumstances exist giving preference to the grandfather, as the owner of the residence at 5424 Pruden Boulevard. If the Commonwealth contests the defendant’s proffer or argues that special circumstances exist warranting denial of the inspection, the Commonwealth may file a rebuttal brief no later than five days after receipt of the defendant’s supplemental brief. The Court will thereafter rule on the defendant’s motion. It is so ordered. 
      
       Relevance focuses on whether the evidence tends to establish the proposition for which it was offered, and materiality addresses whether fee evidence relates to a matter properly at issue. Neeley v. Commonwealth, 17 Va. App. 349, 358, 437 S.E.2d 721, 726 (1993) (quoting Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987)).
     