COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
DANIEL LATTRELL BLACKMON
OPINION BY
v. Record No. 2325-99-3 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Richard W. Davis, Jr. (Davis, Davis & Davis,
on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Daniel Lattrell Blackmon was convicted by a jury of
abduction and rape. On appeal, Blackmon contends the trial court
erred when it denied him a "Rape Shield Hearing" to determine the
admissibility of certain evidence.
I. BACKGROUND
On November 19, 1998, Blackmon and Curtis Lee Martin went to
the Terrace View Apartments in Blacksburg to obtain marijuana
from an apartment tenant. When they arrived, they burst into an
apartment and began yelling for "Rob," saying he had their
marijuana. Blackmon and Martin told the several people who were
in the apartment that they had a gun and would shoot if the
individuals did not cooperate with them. An argument ensued.
While the argument continued, Blackmon went to the couch,
where Nisa McCarter was sitting. Blackmon began to forcibly kiss
McCarter, despite the fact that she tried to push him away. He
then pulled McCarter into a hallway closet and closed the door.
Martin joined the two in the closet shortly thereafter. Martin
and Blackmon held the door closed as they held McCarter, pulled
off her jeans and tore off her underwear.
A few moments later, someone in the apartment yelled that
the police were coming. Martin and Blackmon then left the
closet.
McCarter pulled on her jeans and went into a nearby bedroom
with a friend, Alicia Neuman. As Neuman was attempting to lock
the bedroom door, Blackmon pushed his way in, grabbed Neuman by
the face and pushed her into the hallway. He then shut and
locked the bedroom door behind him, pushed McCarter to the bed,
pulled off her jeans, and pulled his own pants down around his
ankles. He "put his penis into [her] vagina . . . for a few
seconds," before the occupants in the apartment began to bang on
the door and eventually broke into the room. Blackmon then
pulled up his pants and left the apartment. He was apprehended
by the police as he was leaving the apartment building.
Both Blackmon and McCarter were later tested at Montgomery
County Regional Hospital. The examination of McCarter revealed
no semen present in her vagina, but semen was found on her inner
thigh. The DNA in the semen was found to be consistent with
Blackmon's DNA.
- 2 -
During a preliminary hearing, Blackmon attempted to question
McCarter about her past sexual history. The Commonwealth
objected to the question, arguing that the preliminary hearing
was not a "Rape Shield Hearing." The trial court sustained the
objection.
Six days before trial, Blackmon served notice of his request
for a Rape Shield Hearing pursuant to Code § 18.2-67.7. In the
notice, Blackmon contended that he "need[ed] to question the
alleged victim, outside the hearing of the jury, to determine
whether the DNA found on her person could have come from another
source," and asked the court to then rule on the admissibility of
this evidence for purposes of trial.
During a hearing to determine if Blackmon's request would be
granted, he argued the following:
I will ask the Court to allow me outside the
hearing of the jury . . . [to] ask her is
there any chance that the presence of semen
on her leg came from another
source. . . . [I]f the answer is yes, then I
believe it is something that I'm allowed to
go into . . . . If her answer is no Mr.
Davis I swear under oath that I, there's no
other possibility where that came from then I
think . . . I will move on . . . .
The prosecutor objected to the motion as a "fishing expedition,"
and explained that, based on the DNA results, "the probability of
it being someone other than Mr. Blackmon was [one in] 1.4 billion
in the black population. It also says 2.9 billion in the
Caucasian population, and one in 5.5 billion in the Hispanic
population."
- 3 -
The trial court took the motion under advisement and just
before trial, denied the request, stating, "in light of the DNA
evidence that has been proffered by the Commonwealth, it would
appear to me that your inquiry would not be relevant to the
issues that will be confronted within this case."
II. ANALYSIS
On appeal, Blackmon argues that the trial court erred in
denying his motion for a Rape Shield Hearing, and by doing so,
violated his Sixth Amendment right to confront witnesses, as well
as his right to due process.
Virginia's Rape Shield statute, Code § 18.2-67.7, provides
the following, in pertinent part:
A. In prosecutions under this article . . .
evidence of the complaining witness's
unchaste character or prior sexual conduct
shall not be admitted. Unless the
complaining witness voluntarily agrees
otherwise, evidence of specific instances of
his or her prior sexual conduct shall be
admitted only if it is relevant and is:
1. Evidence offered to provide an
alternative explanation for physical evidence
of the offense charged which is introduced by
the prosecution, limited to evidence designed
to explain the presence of semen, pregnancy,
disease, or physical injury to the
complaining witness's intimate parts; or
* * * * * * *
C. Evidence described in subsections A and B
of this section shall not be admitted and may
not be referred to at any preliminary hearing
or trial until the court first determines the
admissibility of that evidence at an
evidentiary hearing to be held before the
- 4 -
evidence is introduced at such preliminary
hearing or trial . . . .
(Emphasis added.)
We have interpreted the Rape Shield statute to "[require] a
defendant seeking to introduce evidence of a victim's prior
sexual conduct to request an evidentiary hearing before such
evidence can be elicited at trial." Brown v. Commonwealth, 29
Va. App. 199, 213, 510 S.E.2d 751, 758 (1999) (citing Code
§ 18.2-67.7(C)). However, the issue of whether a trial court
must hold an evidentiary hearing, in response to a party's
request, is a question of first impression.
Blackmon contended during the hearing that "the rape shield
statute provides that I need to give notice to the Court for a
hearing if I wish to question her on [whether] someone else could
have left the sperm on her thigh, and it makes sense in a rape
shield hearing." Blackmon misunderstands the purpose and meaning
of the Rape Shield statute.
"Where the language of a statute is clear and unambiguous,
we are bound by the plain statement of legislative intent. We
must 'take the words as written' . . . and give them their plain
meaning." Adkins v. Commonwealth, 27 Va. App. 166, 169, 497
S.E.2d 896, 897 (1998) (citation omitted). The plain and
unambiguous language of Code § 18.2-67.7 does not require a trial
court to hold an evidentiary hearing on every request. Instead,
the statute merely requires that a trial court hold a hearing
- 5 -
before admitting evidence of specific instances of prior unchaste
character or sexual conduct.
Furthermore, in both his motion for a Rape Shield Hearing,
as well as his argument at the hearing on the motion, Blackmon
failed to proffer any testimony or evidence which he intended to
elicit from McCarter concerning prior sexual conduct. Instead,
he merely requested that the trial court allow him to question
McCarter, under oath, in order to discover potential exculpatory
evidence pertaining to the source of the semen on McCarter's
thigh.
Code § 18.2-67.7 plainly states that "[u]nless the
complaining witness voluntarily agrees otherwise, evidence of
specific instances of his or her prior sexual conduct shall be
admitted only if it is relevant" and falls within the enumerated
exceptions. (Emphasis added.) We emphasize the words "specific
instances" and "prior" because, by their very nature, these words
demonstrate that the legislature intended this statute to provide
a mechanism for preventing the use of an alleged sexual assault
victim's sexual history, pre-dating the offense, from reaching
the ears of the fact finder, when such evidence has no relevance
or probative value beyond calling into question the chastity of
the complaining witness. It logically follows that a trial court
can make a threshold evaluation of a motion to hold a hearing to
determine the "admissibility" of the evidence at issue based upon
its relevance and probative value only after "specific instances"
- 6 -
of sexual conduct occurring prior to the charged offense have
been alleged and proffered. See Code § 18.2-67.7(C).
In his motion, Blackmon failed to proffer any specific
sexual conduct occurring on any occasion prior to the offense.
Moreover, Blackmon's stated reason for requesting the hearing was
to explore "an alternative explanation for the presence [of
semen]." The court did not prevent Blackmon from cross-examining
McCarter, during the preliminary hearing or at trial, concerning
her explanation for the presence of semen at the time of the
alleged offense.
Under these circumstances, we find that the trial court
correctly denied Blackmon's request for a Rape Shield Hearing.
Code § 18.2-67.7 does not mandate that a trial court hold a
hearing on every request, nor does it require a trial court to
hold a hearing for a reason outside the express purpose of the
statute.
Finally, as to Blackmon's constitutional arguments, we note
that a "defendant does not have a general constitutional right to
discovery in a criminal case." Goins v. Commonwealth, 251 Va.
442, 456, 470 S.E.2d 114, 124 (1996). However, we do not address
these issues further, because Blackmon failed to raise these
arguments before the trial court. See Swann v. Commonwealth, 247
Va. App. 222, 441 S.E.2d 195 (1994).
Affirmed.
- 7 -