COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Petty
Argued at Chesapeake, Virginia
MARCUS WASHINGTON, S/K/A
MARCUS A. WASHINGTON
OPINION BY
v. Record No. 0500-05-1 JUDGE WILLIAM G. PETTY
AUGUST 1, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Peter R. Roane (The Cochran Firm, on briefs), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
A jury convicted Marcus A. Washington of rape. On appeal, Washington contends the
trial court erred in permitting the victim to testify during the Commonwealth’s case-in-chief of
the sentencing phase of his trial. He asserts Code § 19.2-295.1 only permitted the
Commonwealth to introduce prior convictions during its case-in-chief and the trial judge should
have permitted the victim impact testimony, if at all, as rebuttal evidence. After applying basic
rules of statutory construction, we disagree with Washington’s interpretation of the statute;
hence, we affirm.
I. Background
Washington and a codefendant, Rayshod Martin, were indicted and tried jointly by a jury
for the rape of a Hampton University student. The jury found Washington guilty of rape.1
1
Martin was convicted of attempted rape. He raises identical issues on appeal in Record
Number 0413-05-1.
Before the sentencing phase of the trial began, Washington’s attorney informed the court of his
intent to call witnesses during the sentencing phase. Similarly, the Commonwealth informed the
court that it would call the victim to testify during its case-in-chief of the sentencing phase.
Washington objected, and argued Code § 19.2-295.1 only permitted the Commonwealth to
present prior criminal convictions during its case-in-chief. Relying upon Code § 19.2-295.3, the
court overruled the objection and permitted the victim to testify about the impact of the rape
during the Commonwealth’s case-in-chief.
II. Analysis
In deciding this appeal, the Court must review and consider the plain language set forth in
Code §§ 19.2-295.1 and 19.2-295.3. This initial step is necessary because “‘[w]here the
legislature has used words of a plain and definite import the courts cannot put upon them a
construction which amounts to holding the legislature did not mean what it has actually
expressed.’” Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)
(quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)).
Under Code § 19.2-295.1, after a jury has found a defendant guilty of a felony, the
defendant is afforded a separate sentencing proceeding before the same jury to determine
punishment. Code § 19.2-295.1 provides in pertinent part:
At such proceeding, the Commonwealth shall present the
defendant’s prior criminal convictions . . . . After the
Commonwealth has introduced such evidence of prior convictions,
or if no such evidence is introduced, the defendant may introduce
relevant, admissible evidence related to punishment. Nothing in
this section shall prevent the Commonwealth or the defendant from
introducing relevant, admissible evidence in rebuttal.
The other provision at issue, Code § 19.2-295.3, concerns victim impact testimony. Code
§ 19.2-295.3 provides in pertinent part:
[U]pon a finding that the defendant is guilty of a felony, the court
shall permit the victim, as defined in § 19.2-11.01, upon motion of
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the attorney for the Commonwealth, to testify in the presence of
the accused regarding the impact of the offense upon the victim
. . . . In the case of trial by jury, the court shall permit the victim to
testify at the sentencing hearing conducted pursuant to
§ 19.2-295.1 . . . .
Recognizing this qualified right, we have held that “victims who wish to offer impact testimony
at the sentencing hearing of a defendant found guilty of a felony have a statutorily protected right
to testify in the presence of the jury.” Rock v. Commonwealth, 45 Va. App. 254, 259, 610
S.E.2d 314, 316 (2005).
Washington contends that by the plain meaning of Code § 19.2-295.1, the
Commonwealth is limited to introducing evidence of a defendant’s prior criminal convictions in
its case-in-chief of the sentencing proceeding and that any victim impact testimony presented
pursuant to Code § 19.2-295.3 must be limited to rebuttal.
In our prior opinions, this Court has described Code § 19.2-295.1 as “procedural in
nature” and “not convey[ing] any substantive right.” Lebedun v. Commonwealth, 27 Va. App.
697, 717, 501 S.E.2d 427, 437 (1998); cf. Weathers v. Commonwealth, 262 Va. 803, 805, 553
S.E.2d 729, 730 (2001) (providing that substantial compliance with the notice provisions of Code
§ 19.2-295.1 is sufficient absent any prejudice demonstrated by the defendant).
We are guided by principles requiring that “the plain, obvious, and rational meaning of a
statute is always preferred to any curious, narrow or strained construction; a statute should never
be construed so that it leads to absurd results.” Branch v. Commonwealth, 14 Va. App. 836, 839,
419 S.E.2d 422, 424 (1992)). “When one statute speaks to a subject in a general way and
another deals with a part of the same subject in a more specific manner, the two should be
harmonized, if possible, and where they conflict, the latter prevails.” Tharpe v. Commonwealth,
18 Va. App. 37, 43-44, 441 S.E.2d 228, 232 (1994) (quoting Virginia Nat’l Bank v. Harris, 220
Va. 336, 340, 257 S.E.2d 867, 870 (1979)). Moreover, “a fundamental rule of statutory
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construction requires that courts view the entire body of legislation and the statutory scheme to
determine the ‘true intention of each part.”’ Allard v. Commonwealth, 24 Va. App. 57, 67, 480
S.E.2d 139, 144 (1997) (quoting Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 157, 384
S.E.2d 622, 625 (1989)).
In Rock, this Court recognized the General Assembly has “expanded the permissible
scope of the [Crime Victim and Witness Rights] Act by establishing the victim’s right to present
victim impact oral testimony during the sentencing proceeding.”2 45 Va. App. at 258, 610
S.E.2d at 316. Additionally, this Court examined key provisions of the Act wherein the General
Assembly utilized mandatory language concerning victim impact testimony, and, in particular,
reasoned:
The pertinent language of Code §§ 19.2-11.01(A)(4)(c) and
19.2-295.3 is mandatory. By explicitly providing that victims shall
be allowed to testify regarding the impact of the offense on them
when the defendant is found guilty of a felony, Code § 19.2-295.3
establishes the victim’s right to testify without interference.
* * * * * * *
Once it is determined that the persons who offer their impact
testimony are “victims” within the meaning of the statute, the court
shall permit the victims to testify regarding the impact of the offense.
Id. at 259, 610 S.E.2d at 316 (internal quotations and citations omitted).
If we were to accept Washington’s interpretation of Code § 19.2-295.3 as correct and
agree that victim impact testimony should be permitted only during the Commonwealth’s
rebuttal, the result would nullify Code §§ 19.2-11.01(A)(4)(c), 19.2-264.4, and 19.2-295.3. At a
defendant’s election, he or she could simply choose not to present evidence during the
sentencing phase and thus preclude the Commonwealth from introducing victim impact
2
Code § 19.2-11.01(A)(4)(c) provides, “On motion of the attorney for the
Commonwealth, victims shall be given the opportunity, pursuant to §§ 19.2-264.4 and
19.2-295.3, to testify prior to sentencing of a defendant regarding the impact of the offense.”
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testimony. Washington cites Sheikah v. Buckingham Corr. Ctr., 264 Va. 558, 566, 570 S.E.2d
785, 789 (2002), as authority for his position. Although the Supreme Court recognized this to be
a legitimate strategy to bar rebuttal evidence at the sentencing phase, the issue in Sheikah did not
involve a victim’s right to testify or the application of Code §§ 19.2-11.01(A)(4)(c), 19.2-264.4,
or 19.2-295.3.
Washington’s analysis runs contrary to the mandatory nature of these statutes. His
interpretation would defeat the obvious intent of the General Assembly and eviscerate the
statutory right of victims “to have the impact of those crimes upon their lives considered as part
of the sentencing process, if that is their wish.” Beck v. Commonwealth, 253 Va. 373, 384, 484
S.E.2d 898, 905 (1997). It also ignores the nature of rebuttal evidence. See Byrd v.
Commonwealth, 30 Va. App. 371, 374 n.1, 517 S.E.2d 243, 244 n.1 (1999) (finding that “[t]he
admissibility of rebuttal evidence is generally restricted in scope to refuting matters brought out
by its proponent’s adversary”). The statutes do not relegate victim impact testimony to rebuttal
evidence; they provide the victim a qualified right to testify concerning the impact a particular
crime has had on the victim’s life. Pursuant to the mandatory requirements of Code
§§ 19.2-11.01(A)(4)(c), 19.2-264.4, and 19.2-295.3, the trial court was required to allow the
victim to testify upon motion of the Commonwealth.
We believe a more logical interpretation of the reference to Code § 19.2-295.1, as set
forth in § 19.2-295.3, is simply to identify the sentencing hearing as the phase of the trial during
which victim impact testimony shall be admitted. In doing so, the General Assembly clarified
that evidence pertaining to the extent of physical, psychological, or economic harm the crime has
had on the life of the victim, while relevant to punishment, is not relevant to the guilt or
innocence of the defendant.
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Finally, in criminal cases the trial court has discretion to determine the order of proof,
and its ruling will not be reversed on appeal, absent a showing of abuse of discretion. See
Quintana v. Commonwealth, 224 Va. 127, 142, 295 S.E.2d 643, 650 (1982). Here, the victim
had a qualified, statutorily protected right to be heard at sentencing, and it was within the trial
judge’s ultimate discretion to decide when she would be heard pursuant to the Commonwealth’s
motion.
III. Conclusion
After applying fundamental rules of statutory construction, we find the reference to Code
§ 19.2-295.1, as set forth in § 19.2-295.3, is not intended to limit victim impact testimony but
merely identifies the sentencing phase of the trial as the appropriate forum for victim impact
testimony. In this case, the trial court did not abuse its discretion in allowing the rape victim to
testify during the Commonwealth’s case-in-chief of the sentencing phase of Washington’s trial.
For these reasons we affirm Washington’s conviction for rape.
Affirmed.
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