Opinion
Record No. 1073-92-2
Decided: August 2, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY, Richard H.C. Taylor, Judge
Affirmed.
C. Willard Norwood (Ramon E. Chalkley, III; Chalkley Witmeyer, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Baker, Barrow, Coleman, Koontz, Willis, Elder, Bray, and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
UPON REHEARING EN BANC
On November 23, 1993, a panel of this Court, in an unpublished opinion, held that the trial court erred in refusing to grant the appellant's request for a subpoena duces tecum to obtain the murder victim's psychiatric records and remanded the case to the trial court to subpoena the records and to conduct an in camera review to determine whether the error had prejudiced the appellant.
Prior to remand, we granted a rehearing en banc, and we stayed the mandate of the panel's decision. Upon rehearing, we affirm the trial court's decision not to issue the subpoena duces tecum. Upon review of the record, we uphold the trial judge's ruling that the affidavit did not establish a substantial basis for claiming that the victim's psychiatric records contained evidence that would be material to the appellant's claim of self-defense.
A subpoena duces tecum for production of documents "may be issued on affidavit that such writing[s] or other object[s] [are] material to the proceedings." Rule 3A:12(b). 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. Cox v. Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984).
The appellant's affidavit stated that "certain facts have disclosed that the decedent . . . possessed aggressive behavior towards others; that there have been several charges of assault placed against [him]" and that the victim had attempted suicide. Based on these facts, the affiant asserted that "the [victim's] psychiatric medical records [are] material." The affiant stated no facts, however, to show or suggest that the victim had received psychiatric treatment pertaining to assaultive behavior, nor did he state or allege that the victim had received psychiatric treatment in relation to criminal assault charges. Whether the victim's psychiatric records contained evidence that was material to a claim of self-defense would be conjecture and surmise. See Farish v. Commonwealth, 2 Va. App. 627, 630, 346 S.E.2d 736, 738 (1986) (quoting Bowman Dairy Co. v. United States, 341 U.S. 214, 221 (1951) (defendant failed to establish a substantial basis in affidavit to support his claim that rape victim's psychiatric records were material to his defense of consent). Accordingly, we hold that the trial judge did not abuse his discretion by refusing to issue a subpoena duces tecum. We affirm the trial court's decision on the other issues raised on appeal for the reasons stated in the panel's unpublished opinion. Thus, we affirm the appellant's conviction.
Affirmed.
Barrow, J., dissents.