COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys Argued By teleconference
RONDALPH HILLY NIDIFFER MEMORANDUM OPINION * BY v. Record No. 0861-00-1 JUDGE ROBERT J. HUMPHREYS JULY 3, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY Thomas B. Hoover, Judge
Charles E. Haden (Alfred O. Masters, Jr., on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Rondalph Hilly Nidiffer appeals from his convictions, after a
bench trial, of two counts of animate object sexual penetration,
in violation of Code § 18.2-67.2; two counts of taking indecent
liberties with a child by a person in a custodial or supervisory
relationship, in violation of Code § 18.2-370.1; and three counts
of aggravated sexual battery, in violation of Code § 18.2-67.3.
Nidiffer contends that the trial court erred in quashing his
subpeonas duces tecum requesting certain medical, counseling and
school records of the victims, in refusing to allow him to submit
psychological evidence, and in finding the evidence sufficient as
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. a matter of law to support the convictions. Because this opinion
has no precedential value and because the parties are conversant
with the facts, we do not recite them in detail here.
Prior to trial, Nidiffer issued subpoenas duces tecum
requesting the school records for both victims, Ashley and Amanda,
as well as records from Dr. Cathleen Rhea, Ashley's psychologist.
The Commonwealth moved to quash the subpoenas. With regard to the
request for the psychological records, the Commonwealth contended
that Nidiffer's affidavit averred only that the records "may be
material to these proceedings," without a proffer of the
necessary, relevant supporting facts.
The court conducted a hearing on the motions to quash on
November 2, 1999. During the hearing, Nidiffer proffered that the
school records would show that the girls had been doing well in
school since the incident occurred, which he felt would have some
bearing on whether the incident actually took place as the girls
alleged. Nidiffer also proffered that the psychologist's records
pertaining to Ashley would demonstrate Ashley had been under a
psychologist's care for three to five years, that Ashley had been
in therapy because she would hear voices and that she had reported
seeing her deceased grandmother in the sky. The trial court
agreed to allow Nidiffer to inspect the school records, but
ordered that he not be allowed to copy them. The trial court
ordered the psychological records sealed and conducted an in
camera review of the documents. By memorandum dated November 2,
- 2 - 1999, the court ruled that the records would remain sealed, as
they contained "no exculpatory information nor any relevant
information regarding the child's veracity or credibility."
Subsequently, on January 4, 2000, after having reviewed the
school records, Nidiffer filed a pretrial motion in limine
requesting permission to introduce evidence at trial concerning a
1997 psychological evaluation of Ashley that was prepared by
Dr. Rhea and included with the school records. Nidiffer contended
that the evaluation described Ashley as suffering from clinically
significant attention problems, thought problems, social problems,
withdrawal tendencies, somatic complaints, anxious/depressed
behavior, gross mood swings, strange thoughts and otherwise
compulsive thoughts. Ashley indicated to the doctor that
sometimes voices had told her to do bad things, that she could not
control her thoughts, and that she was afraid she would hurt
someone.
Apparently, a hearing on the motion was attempted on January
20, 2000. However, the defendant, the special prosecutor and the
judge were not present. Accordingly, there was no action taken
with regard to the motion, nor does the record reflect any attempt
by Nidiffer to pursue the motion further.
Nidiffer contends the trial court erred by depriving him of
his constitutional right to call for evidence in his favor when it
quashed his subpoenas for certain medical, counseling and school
records pertaining to Amanda and Ashley. Nidiffer also contends
- 3 - that the trial court erroneously refused to allow him to present
psychological evidence.
We first note that the record demonstrates that Nidiffer only
requested counseling/psychological records for Ashley, as well as
school records for both girls. Nidiffer made no request during
the circuit court proceedings for medical records. Moreover,
since the trial court allowed Nidiffer access to the girls' school
records, we address only the issue of Ashley's
counseling/psychological records.
Nidiffer is correct in stating that Article I, § 8 of the
Virginia Constitution provides that an accused has a right "to
call for evidence in his favor." To foster this right, Rule 3A:12
provides that a criminal defendant may apply for a subpoena duces
tecum to obtain documents in the possession of third parties. See
Gibbs v. Commonwealth, 16 Va. App. 697, 432 S.E.2d 514 (1993).
Nevertheless, there is no general constitutional right to
discovery in a criminal case. See Spencer v. Commonwealth, 238
Va. 295, 303, 384 S.E.2d 785, 791 (1989). Thus, a subpoena duces
tecum for production of documents may only be issued on affidavit
that such writings or other objects are material to the
proceedings. See Rule 3A:12(b). Indeed, a trial court shall
issue a subpoena duces tecum for documentary evidence only when
the defendant provides under oath a substantial basis that the
documents or objects sought are material. See Cox v.
Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984).
- 4 - On appeal, in order to establish that a trial court's failure
to enforce such discovery is reversible error, an appellant must
demonstrate that the information sought was material to the case.
See id. For a failure to order discovery to justify reversal of a
judgment, a "reasonable probability [must exist] that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." Patterson v. Commonwealth,
3 Va. App. 1, 8, 348 S.E.2d 285, 289 (1986).
Based on the record before us, we do not find that the
trial court erred in determining that Nidiffer had failed to
make the requisite showing that the documents requested were
material and/or "relevant" to his case. In fact, none of the
information cited by Nidiffer bore any relationship to Ashley's
credibility, nor did it relate in any manner to sexual abuse
and/or the event that had allegedly occurred. Instead,
Nidiffer's request for these privileged and highly confidential
records centered on his conjecture and surmise as to their
potential bearing on his defense. This will not support a
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys Argued By teleconference
RONDALPH HILLY NIDIFFER MEMORANDUM OPINION * BY v. Record No. 0861-00-1 JUDGE ROBERT J. HUMPHREYS JULY 3, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY Thomas B. Hoover, Judge
Charles E. Haden (Alfred O. Masters, Jr., on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Rondalph Hilly Nidiffer appeals from his convictions, after a
bench trial, of two counts of animate object sexual penetration,
in violation of Code § 18.2-67.2; two counts of taking indecent
liberties with a child by a person in a custodial or supervisory
relationship, in violation of Code § 18.2-370.1; and three counts
of aggravated sexual battery, in violation of Code § 18.2-67.3.
Nidiffer contends that the trial court erred in quashing his
subpeonas duces tecum requesting certain medical, counseling and
school records of the victims, in refusing to allow him to submit
psychological evidence, and in finding the evidence sufficient as
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. a matter of law to support the convictions. Because this opinion
has no precedential value and because the parties are conversant
with the facts, we do not recite them in detail here.
Prior to trial, Nidiffer issued subpoenas duces tecum
requesting the school records for both victims, Ashley and Amanda,
as well as records from Dr. Cathleen Rhea, Ashley's psychologist.
The Commonwealth moved to quash the subpoenas. With regard to the
request for the psychological records, the Commonwealth contended
that Nidiffer's affidavit averred only that the records "may be
material to these proceedings," without a proffer of the
necessary, relevant supporting facts.
The court conducted a hearing on the motions to quash on
November 2, 1999. During the hearing, Nidiffer proffered that the
school records would show that the girls had been doing well in
school since the incident occurred, which he felt would have some
bearing on whether the incident actually took place as the girls
alleged. Nidiffer also proffered that the psychologist's records
pertaining to Ashley would demonstrate Ashley had been under a
psychologist's care for three to five years, that Ashley had been
in therapy because she would hear voices and that she had reported
seeing her deceased grandmother in the sky. The trial court
agreed to allow Nidiffer to inspect the school records, but
ordered that he not be allowed to copy them. The trial court
ordered the psychological records sealed and conducted an in
camera review of the documents. By memorandum dated November 2,
- 2 - 1999, the court ruled that the records would remain sealed, as
they contained "no exculpatory information nor any relevant
information regarding the child's veracity or credibility."
Subsequently, on January 4, 2000, after having reviewed the
school records, Nidiffer filed a pretrial motion in limine
requesting permission to introduce evidence at trial concerning a
1997 psychological evaluation of Ashley that was prepared by
Dr. Rhea and included with the school records. Nidiffer contended
that the evaluation described Ashley as suffering from clinically
significant attention problems, thought problems, social problems,
withdrawal tendencies, somatic complaints, anxious/depressed
behavior, gross mood swings, strange thoughts and otherwise
compulsive thoughts. Ashley indicated to the doctor that
sometimes voices had told her to do bad things, that she could not
control her thoughts, and that she was afraid she would hurt
someone.
Apparently, a hearing on the motion was attempted on January
20, 2000. However, the defendant, the special prosecutor and the
judge were not present. Accordingly, there was no action taken
with regard to the motion, nor does the record reflect any attempt
by Nidiffer to pursue the motion further.
Nidiffer contends the trial court erred by depriving him of
his constitutional right to call for evidence in his favor when it
quashed his subpoenas for certain medical, counseling and school
records pertaining to Amanda and Ashley. Nidiffer also contends
- 3 - that the trial court erroneously refused to allow him to present
psychological evidence.
We first note that the record demonstrates that Nidiffer only
requested counseling/psychological records for Ashley, as well as
school records for both girls. Nidiffer made no request during
the circuit court proceedings for medical records. Moreover,
since the trial court allowed Nidiffer access to the girls' school
records, we address only the issue of Ashley's
counseling/psychological records.
Nidiffer is correct in stating that Article I, § 8 of the
Virginia Constitution provides that an accused has a right "to
call for evidence in his favor." To foster this right, Rule 3A:12
provides that a criminal defendant may apply for a subpoena duces
tecum to obtain documents in the possession of third parties. See
Gibbs v. Commonwealth, 16 Va. App. 697, 432 S.E.2d 514 (1993).
Nevertheless, there is no general constitutional right to
discovery in a criminal case. See Spencer v. Commonwealth, 238
Va. 295, 303, 384 S.E.2d 785, 791 (1989). Thus, a subpoena duces
tecum for production of documents may only be issued on affidavit
that such writings or other objects are material to the
proceedings. See Rule 3A:12(b). Indeed, a trial court shall
issue a subpoena duces tecum for documentary evidence only when
the defendant provides under oath a substantial basis that the
documents or objects sought are material. See Cox v.
Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984).
- 4 - On appeal, in order to establish that a trial court's failure
to enforce such discovery is reversible error, an appellant must
demonstrate that the information sought was material to the case.
See id. For a failure to order discovery to justify reversal of a
judgment, a "reasonable probability [must exist] that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." Patterson v. Commonwealth,
3 Va. App. 1, 8, 348 S.E.2d 285, 289 (1986).
Based on the record before us, we do not find that the
trial court erred in determining that Nidiffer had failed to
make the requisite showing that the documents requested were
material and/or "relevant" to his case. In fact, none of the
information cited by Nidiffer bore any relationship to Ashley's
credibility, nor did it relate in any manner to sexual abuse
and/or the event that had allegedly occurred. Instead,
Nidiffer's request for these privileged and highly confidential
records centered on his conjecture and surmise as to their
potential bearing on his defense. This will not support a
defendant's discovery request seeking documents from a third
party. See Farish v. Commonwealth, 2 Va. App. 627, 630, 346
S.E.2d 736, 738 (1986).
In addition, upon our review of the psychological records
which the trial court considered in camera, we find no abuse of
discretion in the trial court's determination that the records
demonstrated no material, relevant and/or exculpatory
- 5 - information which would have related to Nidiffer's defense of
this matter.
We also find no merit in Nidiffer's contention that the
trial court refused to allow him to present psychological
evidence. First, there was no hearing conducted with regard to
Nidiffer's motion in limine. Thus, there was no ruling issued
by the trial court in response to his request to submit evidence
concerning Dr. Rhea's 1997 psychological evaluation of Ashley.
In addition, Nidiffer failed to pursue this motion further.
Moreover, at trial, Nidiffer did ask the girls about whether
they were currently in counseling and/or had been to counseling,
as well as about the time frame of the counseling. The trial
court allowed these questions. Nidiffer asked no further
questions, nor presented any additional evidence of this nature.
Therefore, we see no evidence in the record to suggest that the
trial court in any way restricted Nidiffer's ability to present
any such bona fide and relevant evidence.
Finally, despite Nidiffer's argument with regard to the
issue of penetration, we do not find that the trial court was
plainly wrong in finding the evidence sufficient as a matter of
law to support Nidiffer's convictions. 1 As the trial court
recognized, both victims testified to the events with striking
1 We note that Nidiffer avers to medical evidence concerning the penetration issue on his brief on appeal. However, no such evidence was submitted at trial. Accordingly, we do not consider this evidence on appeal.
- 6 - similarity. Both victims also testified that penetration indeed
occurred. Furthermore, Nidiffer's older granddaughter testified
that he had also victimized her in a similar manner, on an
entirely different occasion.
For the reasons set forth above, we affirm the judgment of
the trial court.
Affirmed.
- 7 -