Commonwealth v. McWhirt

By JUDGE ROSEMARIE ANNUNZIATA The matter before the Court is defendant’s motion for a Bill of Particulars. The defendant is charged with embezzlement in violation of Va. Code § 18.2-111, under three separate indictments. Each indictment joins several distinct acts of embezzlement allegedly committed by the defendant within a six-month period. Joinder is permitted under Va. Code § 19.2-223. A motion for a bill of particulars should not be granted if the indictment sufficiently informs defendant of the charge to be tried. Harris v. Commonwealth, 8 Va. App. 424 (1989). The case law is sparse on the specific issue raised by a prosecutorial choice to join a number of separate defalcations. However, based on a review of the indictments, the arguments of counsel, the relevant case law, and considering the defendant’s ability to prepare for trial in the absence of a more particularized statement, it is my view that the defendant’s motion should be granted. Casper v. Danville, 160 Va. 929 (1933); Challenor v. Commonwealth, 220 Va. 789, 792-93 (1969); see also Mechling v. Slayton, 361 F. Supp. 770 (E.D. Va. 1973); U.S. v. Automated Medical Laboratories, Inc., 770 F.2d 399 (4th Cir. 1985). The Commonwealth is thus ordered to file a bill particularizing those charges as to which he expects to introduce supporting evidence, including specific dates, time, locations, and dollar values of the embezzlements where such information is available.