PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Compton, S.J.
JACK ENIC CLARK OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 002605 September 14, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The sole question in this criminal appeal is whether the
circuit court erred in denying a defendant's motion "requiring
an independent medical examination of the complaining witness"
in a statutory rape case.
Defendant Jack Enic Clark was indicted in September 1996 in
the Circuit Court of Fairfax County for three felonies:
Forcible sodomy (fellatio) with a child under the age of 13
years, committed on February 2, 1996 and March 15, 1996, in
violation of Code § 18.2-67.1(A); and statutory rape of the same
child when she was 13 years of age, committed on April 5, 1996,
in violation of Code § 18.2-63.
Upon defendant's not guilty pleas, a jury found him guilty
of the February sodomy charge and of the statutory rape charge,
the trial court having granted defendant's motion to strike the
Commonwealth's evidence on the March sodomy charge. Later, the
trial court sentenced defendant to confinement for eight years
on the sodomy conviction and for eight years, with six
suspended, on the statutory rape conviction.
Prior to trial, defendant moved the court to require the
victim of the offenses to submit to an "independent medical
examination" of her sexual anatomy. During a hearing on the
motion, defendant argued that "[t]he Virginia Constitution . . .
does give the Defendant his due process rights to present
evidence in his own defense." Continuing, defendant mentioned
"the uniqueness of a sexual assault case," and contended he had
"due process rights . . . to have physical evidence that [he]
may obtain through an independent physical examination to rebut
any physical evidence that the Commonwealth would seek to
introduce at the trial."
The trial court denied the motion, as well as a similar
motion made post-trial. The judge determined that "it is beyond
the authority of the court" to order the examination and that
such action would be "highly intrusive" upon the victim.
Upon appeal of the convictions, a panel of the Court of
Appeals of Virginia, in a November 1999 opinion, reversed the
convictions. The court ruled that the trial court erred in
deciding it lacked authority to order the examination, and
remanded the cases for further proceedings.
Subsequently, the Court of Appeals granted a rehearing en
banc. Upon rehearing, the judgment of the trial court was
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affirmed without opinion by an evenly divided court, and the
opinion previously rendered by the panel was withdrawn. Clark
v. Commonwealth, 33 Va. App. 536, 535 S.E.2d 181 (2000). We
awarded defendant an appeal from the Court of Appeals' judgment.
In this appeal, defendant argues "that the trial court's
denial of the various motions for an independent medical
examination was erroneous and seriously undermined Mr. Clark's
ability to fully defend himself." Relying on cases from other
jurisdictions, he contends that the due process rights of a
Virginia defendant "should include the right to compel the
physical examination" of the victim in a statutory rape case.
He says that in sexual assault cases, the victim's body
"may be a significant reliable source of exculpatory or
inculpatory evidence." Continuing, he argues that "[w]hen such
evidence may be material, and likely exculpatory, a trial court,
by way of a protective order delineating the appropriate
protective conditions, must require the examination of the
complainant by a properly qualified medical doctor."
The defendant, who testified he did not engage in sexual
intercourse with the victim, asserts that the Commonwealth's
case "boiled down" to the testimony of the victim "and the
purported medical testimony" of a sexual assault nurse examiner.
That witness was a registered nurse who examined the victim at
the Fairfax Hospital 13 days after the rape and who qualified at
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trial as an expert "in the field of sexual assault examination."
Her testimony supported the conclusion that the victim had
engaged in sexual intercourse in the recent past before she
conducted her examination.
Defendant contends that the nurse's "evaluation and
conclusions were flawed and inconsistent." Hence, he argues,
"the defense in this case has sufficiently challenged the
credibility and quality of the prior examination by the
Commonwealth's expert," and thus the trial court erroneously
decided it lacked authority to order the examination. We
disagree.
The defendant's motion to require the victim of the rape to
submit to a physical examination (the sodomy charge, of course,
is not implicated) simply is a discovery effort. However, in
Virginia, no authority exists permitting such discovery, and we
will not create such authority in this case.
There is no general constitutional right to discovery in a
criminal case. Lowe v. Commonwealth, 218 Va. 670, 679, 239
S.E.2d 112, 118 (1977), cert. denied, 435 U.S. 930 (1978).
Article 1, § 8 of the Constitution of Virginia provides that an
accused in a criminal prosecution has the right "to call for
evidence in his favor." We have said that this "unqualified
right . . . includes the right to prepare for trial . . . and to
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ascertain the truth." Bobo v. Commonwealth, 187 Va. 774, 779,
48 S.E.2d 213, 215 (1948).
However, the exercise of this right is not boundless. For
example, in Bobo this Court held that the accused was entitled
to a private interview, outside the presence of the prosecutor,
of a witness who was in jail and who was summoned by both the
prosecutor and the accused. Nevertheless, the Court said the
decision did not apply to an interview of "a prosecuting witness
such as the victim in a rape . . . case." Id. at 780, 48 S.E.2d
at 216.
Furthermore, no statute or rule of court provides for a
defense right to compel physical examinations of crime victims.
Rule 3A:11 provides for only limited pretrial discovery by the
accused in a felony case, and does not authorize the examination
sought here, even though our Rule 4:10 permits a physical or
mental examination of a party in a civil case. Indeed, Rule
3A:11(b)(2) expressly prohibits "the discovery or inspection of
statements made by Commonwealth witnesses or prospective
Commonwealth witnesses to agents of the Commonwealth" and of
certain specified "reports, memoranda or other internal
Commonwealth documents made by agents in connection with the
investigation or prosecution of the case."
Consequently, if an accused in Virginia has no right to
interview a rape case victim, and no right to discover
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statements made by Commonwealth's witnesses to agents of the
Commonwealth, and no right to discover certain internal
Commonwealth documents, surely the accused should have no right
to a physical examination of the victim in a statutory rape
case. And we so hold.
Accordingly, the judgment of the Court of Appeals will be
Affirmed.
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