COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
RONALD JACKSON BROWN
OPINION BY
v. Record No. 2810-97-4 JUDGE DONALD W. LEMONS
FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Jeffrey D. Zimmerman for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Ronald Jackson Brown appeals his convictions for attempted
rape, forcible sodomy, animate object sexual penetration,
abduction, robbery and assault. On appeal, he argues that the
trial court erred in: (1) denying his motion to strike three
prospective jurors for cause; and (2) denying him the opportunity
to question the complaining witness about her testimony in a
prior rape case. Because we hold that the trial court erred by
both refusing to strike two prospective jurors and in improperly
limiting Brown's cross-examination, we reverse his convictions
and remand to the trial court.
BACKGROUND
On May 4, 1997, at approximately 2:00 a.m., the victim, who
we shall designate as Jane Doe, exited a parked car and
approached a police officer claiming that Ronald Jackson Brown,
appellant, had sexually assaulted her. Because Brown has limited
his appeal to whether the trial court erred in refusing to strike
three jurors and whether the trial court erred in refusing to
allow him to cross-examine the complaining witness about her
testimony in a prior rape case, our recitation of the relevant
facts is confined to these two issues.
At trial during voir dire, Brown's attorney moved to strike
for cause three prospective jurors. The court denied each
motion. In addition, during his cross-examination of Jane Doe,
Brown's attorney attempted to question her about her testimony in
a 1989 rape case. Ruling that this question was inadmissible
pursuant to the "rape shield statute," Code § 18.2-67.7, the
court refused to allow it. On September 23, 1997, the jury
convicted Brown of attempted rape, forcible sodomy, animate
object sexual penetration, abduction, robbery and assault.
MOTION TO STRIKE PROSPECTIVE JURORS FOR CAUSE
The right of an accused to a trial by an impartial jury is a
constitutional right guaranteed under both the United States
Constitution and the Virginia Constitution. See U.S. Const.
amend. VI; Va. Const. art. I, § 8. The Rules of the Supreme
Court of Virginia as well as legislative enactments reinforce
this guarantee. See Code §§ 8.01-357; 8.01-358; 19.2-260 et
seq.; Rule 3A:14(a). "The trial court's decision whether to
strike a prospective juror for cause is a matter submitted to its
sound discretion and will not be disturbed on appeal unless it
appears from the record that the trial court's action constitutes
manifest error." Stockton v. Commonwealth, 241 Va. 192, 200, 402
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S.E.2d 196, 200, cert. denied, 502 U.S. 902 (1991). The trial
court has the "opportunity to observe each juror's demeanor when
evaluating the juror's responses to the questions of counsel and
the questions of the trial court." Id. at 200, 402 S.E.2d at
200. "Any reasonable doubt regarding the prospective juror's
ability to give the accused a fair and impartial trial must be
resolved in favor of the accused." Gosling v. Commonwealth, 7
Va. App. 642, 645, 376 S.E.2d 541, 544 (1989) (citations
omitted).
It is irrelevant whether counsel uses a peremptory strike to
remove a juror who should have been stricken for cause by the
court. See Scott v. Commonwealth, 1 Va. App. 447, 450, 339
S.E.2d 899, 900 (1986). "[I]t is prejudicial error . . . to
force a defendant to use the peremptory strike . . . to exclude a
venireman who is not free from exception." Id. at 451, 339
S.E.2d at 900-01 (citation omitted).
A. PROSPECTIVE JUROR NO. 1
During voir dire, Brown's counsel moved to strike
Prospective Juror No. 1 for cause. Prospective Juror No. 1
stated that she had been a victim of an attempted abduction and a
possible attempted sexual assault and that the suspect in her
case was never found. The following exchange then took place
between the Commonwealth's attorney and Prospective Juror No. 1:
[COMMONWEALTH'S ATTORNEY]: Okay. Is there
anything about your experience -- some of the
charges today, as you've heard, are sexual
offenses and an abduction -- is there
anything about your experiences having been a
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victim of a similar crime and making a report
to the police that would give you a bias in
this case either for or against?
[PROSPECTIVE JUROR NO. 1]: I don't honestly
know. I would hope not.
[COMMONWEALTH'S ATTORNEY]: You would keep an
open mind and decide the case based solely on
the evidence that you hear today?
[PROSPECTIVE JUROR NO. 1]: We would all try
to do that.
[COMMONWEALTH'S ATTORNEY]: Thank you.
At the close of the initial voir dire, Brown's counsel moved
to strike Prospective Juror No. 1 for cause. The court then
conducted additional voir dire of Prospective Juror No. 1. The
following colloquy took place:
THE COURT: Okay. Now, [Prospective Juror
No. 1], the way I understand it, you feel
like you were the subject of an attempted
abduction; is that correct?
[PROSPECTIVE JUROR NO. 1]: Yes, Your Honor.
THE COURT: Okay. Now, in responding to
questions of counsel as to whether or not you
would be able to hear this case fairly on the
evidence that's presented and the law that I
give you, your answer was that you hope so
and that you hope everybody would do the same
thing. That's just not good enough.
We need to know either you can or you can't.
[PROSPECTIVE JUROR NO. 1]: Well, I'm trying
to give you an honest answer, your Honor,
because I haven't served in that situation
before on a jury. So I can only -- I can
only be hypothetical. I think that I would
be fair as a juror. That's the best that I
can respond.
THE COURT: But you're not sure?
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[PROSPECTIVE JUROR NO. 1]: I -- I -- I don't
see how I could -- I mean I'm not
clairvoyant. I think so.
THE COURT: Well, you know yourself. All I'm
trying to find out is if you're chosen for
the jury and you go back in there, are you
going to let this business about the
abduction come in between you and facts of
this case.
[PROSPECTIVE JUROR NO. 1]: I have no reason
to believe it would influence. I'm sure --
The Commonwealth's attorney then questioned Prospective
Juror No. 1 again and the following exchange occurred:
[COMMONWEALTH'S ATTORNEY]: Just to clarify,
I think the Court's last question sort of
gets to it. You're going to hear evidence
today. You're going to be instructed as to
the law, and then you're going to go back and
deliberate, and in your deliberations of
course, you're instructed to only consider
the evidence that's introduced today at
trial, and would you be able to decide this
case considering only that evidence and
completely putting out of your mind any
personal experience you may have had in an
attempted abduction or attempted sexual
assault.
[PROSPECTIVE JUROR NO. 1]: I don't know how
to answer other than I have -- I think that I
would. I would do my best to. I mean I've
never been in that situation before. When
it's a question of unpleasant memories
impinging on one's -- one's intuitive
feelings, there may be feelings there that
would not influence me, but there might be
feelings there nonetheless.
I would hope that I would do my duty and
really look at the evidence.
[COMMONWEALTH'S ATTORNEY]: Do you feel
sitting here right now that the personal
experience biases you against the Defendant
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in this case, that you bring that into the
case with you?
[PROSPECTIVE JUROR NO. 1]: No, ma'am.
Brown's counsel then conducted the following inquiry:
[DEFENSE COUNSEL]: [Prospective Juror No. 1]
. . . [y]ou had said that as a result of your
-- as a result of what you experienced that
there were some unpleasant memories, and just
to clarify, you were concerned that if you
heard certain facts in this case -- and of
course, you don't know what they are -- but
if you heard certain facts that, for
instance, may sound similar to the experience
you had, that then those memories could
intrude, which would be understandable
. . . .
[PROSPECTIVE JUROR NO. 1]: I would hope that
even if there were unpleasant connotations,
that that would not interfere with my
judgment to go by the evidence.
[DEFENSE COUNSEL]: Okay.
[PROSPECTIVE JUROR NO. 1]: Jury duty is
public service. It's not entertainment.
It's here to do your duty.
[DEFENSE COUNSEL]: It is, absolutely, and in
an attempt to bring it -- to sort of ground
it a little bit, having heard all of these
charges and all of this talk, can you still
look over at Ron Brown and figure there's an
innocent man? Haven't heard anything from
the Commonwealth yet. There sits an innocent
man.
[PROSPECTIVE JUROR NO. 1]: Absolutely.
[DEFENSE COUNSEL]: Okay.
The court stated that it was satisfied with Prospective
Juror No. 1's responses and overruled Brown's motion to strike
her for cause.
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To guarantee compliance with the United States and Virginia
Constitutions,
[a prospective juror] must be able to give
[the accused] a fair and impartial trial.
Upon this point nothing should be left to
inference or doubt. All the tests applied by
the courts, all the enquiries made into the
state of the juror's mind, are merely to
ascertain whether he comes to the trial free
from partiality and prejudice.
If there be a reasonable doubt whether the
juror possess these qualifications, that
doubt is sufficient to insure his exclusion.
For . . . it is not only important that
justice should be impartially administered,
but it should also flow through channels as
free from suspicion as possible.
Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735
(1976) (citation omitted). In Clements v. Commonwealth, 21 Va.
App. 386, 464 S.E.2d 534 (1995), we reversed the defendant's
conviction of attempted forcible sodomy, holding that the trial
court erred in refusing to strike for cause a juror whose
responses in voir dire revealed "reasonable doubt" about his
impartiality. Id. at 393, 464 S.E.2d at 537. The prospective
juror in Clements admitted that he had heard something about the
case "together with the fact that a relative had been the victim
of a sex crime" which would cause him "some sort of slight
predisposition against people who are charged with sexual
offenses." Id. at 393, 464 S.E.2d at 537-38.
In Clements, the prospective juror "throughout his voir
dire, . . . spoke honestly, showing no unwillingness to serve.
However, those honest answers disclosed his equivocation and
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revealed doubt that he would be able to render a fair verdict."
Id. at 393, 464 S.E.2d at 538. Although the court and the
Commonwealth both attempted to rehabilitate the juror, "[i]n our
review, we must consider the entire voir dire rather than its
isolated parts." Id. at 392-93, 464 S.E.2d at 537. We held that
"the admissions created a reasonable doubt that [the juror] would
come indifferent to the cause," and we reversed and remanded the
case. Id. at 393, 464 S.E.2d at 538.
We reached a similar holding in Moten v. Commonwealth, 14
Va. App. 956, 420 S.E.2d 250 (1992). In Moten, the trial court
refused to strike for cause a prospective juror in a trial for
multiple indictments of possession and distribution of cocaine.
During voir dire, the Commonwealth's attorney asked whether
charges of possession and distribution of cocaine "caused a
problem with anyone." One prospective juror admitted that her
husband was "a recovering drug addict" and that she considered
drugs to be a "touchy" subject. Id. at 957, 420 S.E.2d at 251.
Although she then stated that her experiences would not prohibit
her from acting impartially in this case, we held that the trial
court erred in refusing to strike her for cause. We reversed the
defendant's convictions, stating that, although "[a] trial
court's ruling will not be disturbed unless there is a showing of
manifest error," the prospective juror's responses "clearly
indicated to the court that due to her husband's drug problem,
her performance as a juror might be impaired by her personal
feelings regarding drugs." Id. at 958, 420 S.E.2d at 252.
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Here, Prospective Juror No. 1 expressed numerous
reservations about her ability to serve impartially on the jury
in light of her personal experiences. Nearly all of Prospective
Juror No. 1's responses contained the phrases, "I think," "I
don't know," and "I would try." Her responses indicated a great
degree of equivocation and created reasonable doubt about her
fitness as a juror. Because all doubts about the fitness of a
juror to serve must be resolved in favor of the accused, we hold
that the court erred in refusing to strike Prospective Juror No.
1 for cause. See Gosling, 7 Va. App. at 645, 376 S.E.2d at 544.
B. PROSPECTIVE JUROR NO. 2
Brown also moved to strike Prospective Juror No. 2 for
cause. Prospective Juror No. 2 stated during voir dire that he
was Chief Counsel to the United States Secret Service. When
Brown's counsel asked whether any venire member would agree with
the statement that, "[a] rape charge wouldn't be brought by a
woman that wasn't true," Prospective Juror No. 2 stated, "I don't
agree with that statement, but I in honesty should say that my
whole career has been in law enforcement. So I do tend to view
things from the law enforcement perspective." He also stated
twice that he "had a great deal of faith" in law enforcement
officers and prosecutors and that, as a result, he might give
more weight to an officer's testimony.
Prospective Juror No. 2 asserted that although he did not
believe a defendant is always guilty, he admitted,
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I think it's a fair statement, and I do feel
that it would be unusual that the police
would make an arrest, that there would be an
indictment, and that it would get all the way
to trial -- the great likelihood, based on my
experience, is, yes, the person probably did
it.
Prospective Juror No. 2 stated, however, that he could "listen to
the particular individual trial." The trial judge denied Brown's
motion to strike Prospective Juror No. 2 for cause, stating that
Prospective Juror No. 2 would do "proper service in the case."
In David v. Commonwealth, 26 Va. App. 77, 493 S.E.2d 379
(1997), we held that the trial court abused its discretion in
refusing to strike a prospective juror for cause. In David, a
prospective juror stated that she had some friends in a local
county police department and that she had been the victim of two
unrelated crimes. She stated, "I can sit impartially, but I
would probably tend to prosecute to the max because of my
experiences." Id. at 79, 493 S.E.2d at 380. She then indicated
that "as a victim among other things" she would be more likely to
listen to the prosecution's case. The court then conducted an
individual colloquy with the prospective juror in an attempt to
rehabilitate her as a member of the jury panel. We reversed and
remanded for a new trial, stating,
[t]he true test of impartiality lies in the
juror's mental attitude. Furthermore, proof
that she is impartial must come from her
uninfluenced by persuasion or coercion. The
evidence used to show the requisite
qualifications must emanate from the juror
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herself, unsuggested by leading questions
posed to her.
Id. at 81, 493 S.E.2d at 381 (citations omitted).
In Breeden, 217 Va. 297, 227 S.E.2d 734, the Supreme Court
of Virginia reversed and remanded the defendant's conviction of
abduction and murder, holding that a prospective juror should
have been dismissed for cause from the venire. In Breeden, a
prospective juror admitted that she had read about the crime in
the newspaper and was "glad that the person was caught." Id. at
299 n.*, 227 S.E.2d at 736 n.*. She also stated that "[i]n my
mind there must have been strong evidence to be arrested," and
agreed that "the fact that [the defendant] is here is strong
indication that he is guilty." Id. She asserted her belief that
the defendant would have to prove his innocence, rather than
requiring the Commonwealth to prove his guilt. See id. Although
the prospective juror stated that she could follow the judge's
instructions in applying the facts to the law, the Supreme Court
held that it was error for the trial court to have refused to
strike her for cause.
Here, Prospective Juror No. 2's position as Chief Counsel to
the United States Secret Service does not alone disqualify him
from jury service. See Gray v. Commonwealth, 233 Va. 313, 338,
356 S.E.2d 157, 171 (1987) (association with law enforcement
personnel is alone insufficient to strike a prospective juror for
cause). However, his admission that he usually "view[ed] things
from a law enforcement perspective," and his belief that it was
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unlikely that a case would go to trial if the accused was not
guilty created a reasonable doubt about his ability to sit
impartially on a jury. All reasonable doubts must be resolved in
favor of the accused. See Gosling, 7 Va. App. at 645, 376 S.E.2d
at 544. The trial court, therefore, erred in refusing to strike
for cause Prospective Juror No. 2.
C. PROSPECTIVE JUROR NO. 3
Brown moved to strike Prospective Juror No. 3 for cause.
The trial judge asked whether any of the jurors knew Brown or
either counsel. Prospective Juror No. 3 stated that she knew the
appellant "from the area," but not as a friend, acquaintance, or
relation. She stated that her knowledge of Brown would not
interfere with her ability to give him and the Commonwealth a
fair trial. Brown's counsel moved to strike Prospective Juror
No. 3 for cause on the ground that because she knew Brown "from
the area" and "he has a very long criminal record . . . she would
be introducing that to the jury room." The court, however,
denied the motion to strike for cause. On appeal, Brown's
counsel objects both to the court's refusal to strike Prospective
Juror No. 3 for cause and the court's failure to conduct any voir
dire to ascertain Prospective Juror No. 3's level of knowledge
about Brown's past. Brown also argues that the court's error was
not cured by the Commonwealth's removal of Prospective Juror No.
3 with its fourth peremptory strike.
In a prior case, we held that a trial court did not err as a
matter of law in refusing to strike two prospective jurors who
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stated during voir dire that they had read in the newspaper about
the defendant's prior trial. See Foster v. Commonwealth, 6 Va.
App. 313, 369 S.E.2d 688 (1988). In Foster, two of the
prospective jurors remembered details from a previous trial
involving the defendant taking pictures of nude children. We
held that because the jurors stated they did not know the outcome
of the first trial and could "set aside their knowledge and
decide the case on the evidence presented at trial" the court was
not plainly wrong in refusing to strike either juror for cause.
Id. at 330-31, 369 S.E.2d at 699. Rather, we held that the trial
court's finding is "entitled to great weight and should be set
aside only for plain error." Id. at 330, 369 S.E.2d at 698
(citations omitted).
Here, Prospective Juror No. 3 did not state that she had any
knowledge of Brown's alleged criminal history, nor did she state
that she had heard rumors about him in the neighborhood.
Prospective Juror No. 3's admission that she knew Brown "from the
area" is not alone sufficient to disqualify her from jury
service. Prospective Juror No. 3 stated that her knowledge of
Brown would not prohibit her from giving him a fair trial, and
any speculation concerning what she knew about Brown is not
supported by Prospective Juror No. 3's answers. Her knowledge of
Brown, as revealed in voir dire, falls far short of the
information disclosed by the prospective jurors in Foster, in
which we upheld the court's refusal to strike for cause.
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Brown also argues that the court erred when it failed to
conduct additional voir dire of Prospective Juror No. 3 to
determine the extent of her knowledge of Brown's criminal history
or rumors of criminal activity. However, Brown's counsel neither
asked these questions nor requested that the court do so.
Brown correctly asserts that the Commonwealth's use of its
fourth peremptory strike to remove Prospective Juror No. 3 does
not cure any prejudice caused to him. A Commonwealth's
attorney's use of a peremptory challenge to remove a prospective
juror who should have been stricken for cause will not cure any
possible prejudice caused to an accused. See Brooks v.
Commonwealth, 24 Va. App. 523, 530-31, 484 S.E.2d 127, 130
(1997); DeHart v. Commonwealth, 20 Va. App. 213, 216, 456 S.E.2d
133, 134 (1995). "[A] defendant [is] entitled to a jury panel
free from exception." Brooks, 24 Va. App. at 530, 484 S.E.2d at
130. If a venireman who should have been removed for cause is
allowed to remain on the jury panel, the accused is "denied the
opportunity of having another impartial person on his jury." Id.
at 530, 484 S.E.2d at 130.
The Commonwealth's use of a peremptory challenge to remove
Prospective Juror No. 3 would not have cured any prejudice to
Brown if the juror should have been stricken for cause. On this
record, we find that the trial court did not err in refusing to
strike Prospective Juror No. 3 for cause.
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"RAPE SHIELD" STATUTE
Brown argues that the trial court improperly limited his
cross-examination of Jane Doe. Brown argues that Doe's
statements to the police officer and her testimony at trial were
very similar to testimony she gave in an unrelated rape trial in
1989, reported in Glymph v. Commonwealth, Record No. 1435-89-4
(Va. Ct. App. June 18, 1991). Brown sought to question Doe about
her testimony in Glymph. The Commonwealth argued that this type
of questioning was prohibited on the basis of Code § 18.2-67.7
("rape shield" law). The trial court agreed and refused to allow
Brown's counsel to question her about it.
"In criminal prosecutions a man hath a right . . . to call
for evidence in his favor." Va. Const. art. I, § 8. "The
opportunity to present a complete defense 'would be an empty one
if the State were permitted to exclude competent, reliable
evidence bearing on . . . credibility . . . when such evidence is
central to the defendant's claim of innocence.'" Brown v.
Commonwealth, 22 Va. App. 316, 322, 469 S.E.2d 90, 93 (1996)
(citation omitted). "Combined, the rights to compulsory process,
confrontation and due process give the defendant a constitutional
right to present evidence." Id. at 322, 469 S.E.2d at 93 (citing
Neeley v. Commonwealth, 17 Va. App. 349, 356, 437 S.E.2d 721, 725
(1993)).
Code § 18.2-67.7, referred to as the "rape shield" law,
excludes evidence in sexual assault cases,
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of the "general reputation . . . of the
complaining witness's unchaste character or
prior sexual conduct" . . . [which is]
defined as "any sexual conduct on the part of
the complaining witness which took place
before the conclusion of the trial, excluding
the conduct involved in the offense alleged
under this article."
Clinebell v. Commonwealth, 235 Va. 319, 322, 368 S.E.2d 263, 264
(1988). The "rape shield" law requires 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. Code § 18.2-67.7(C). The Commonwealth contends that any
testimony given by Jane Doe in a prior reported rape case
necessarily constitutes evidence of "prior sexual conduct." On
the ground that Brown failed to request an evidentiary hearing
prior to trial to determine admissibility of Doe's prior
testimony, the Commonwealth also argues that the trial court
properly refused to allow such questioning.
In Clinebell, the defendant was convicted of five counts of
sexual misconduct involving his daughter. He appealed, arguing
that under the "rape shield" law the court had improperly
excluded evidence of certain prior statements made by his
daughter. The daughter's statements included various references
she made to a classmate that she was pregnant, that her father
and her uncle had raped her, that another boy had impregnated
her, and that her paternal grandfather had molested her. See id.
at 321-22, 368 S.E.2d at 264. The defendant argued that by
introducing her statements, he was not attempting to prove that
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his daughter "has engaged in 'prior sexual conduct' or that she
has unchaste character." Id. at 322, 368 S.E.2d at 264.
Reversing the convictions, the Supreme Court of Virginia stated:
"He seeks to prove for impeachment purposes that his daughter
makes false statements concerning sexual behavior. We conclude
that such statements are not 'conduct' within the meaning of Code
§ 18.2-67.7." Id. at 322, 368 S.E.2d at 264.
Brown also cites State v. Lampley, 859 S.W.2d 909 (Mo. Ct.
App. 1993), in which the Missouri Court of Appeals reversed the
defendant's convictions for two counts of sodomy involving his
stepdaughter, holding that the trial court erred in refusing to
allow him to cross-examine her about a previous complaint of
sexual abuse by another person. Missouri has enacted a statute,
codified at Mo. Rev. Stat § 491.015 (1986), which is intended to
protect a victim in a rape prosecution from being questioned
about prior sexual conduct. Brown argues that the legislative
intent and the language of the Missouri statute are substantially
similar to Code § 18.2-67.7, and, therefore, that Missouri law is
instructive in this case. 1
In Lampley, the defendant argued that the stepdaughter's
previous complaint of sexual abuse was relevant to show "previous
1
The relevant language of § 491.015 begins, "[i]n
prosecutions . . . related to sexual conduct . . . opinion and
reputation evidence of the complaining witness' prior sexual
conduct is inadmissible. . . ."
Code § 18.2-67.7 similarly begins, "[i]n prosecutions under
this article, general reputation or opinion evidence of the
complaining witness's unchaste character or prior sexual conduct
shall not be admitted . . . ."
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knowledge of sexual matters and how she benefited [sic] from the
prior complaint." Id. at 910. The evidence showed that the
prior abuse complaint resulted in removal of the subject of the
complaint from the stepdaughter's house. See id. at 911. The
defendant argued that the stepdaughter did not like him and
"accusing him of sexual molestation was a way of getting him out
of her home." Id. Therefore, the defendant argued that he
should have been allowed to question his stepdaughter about the
prior complaint to determine if she had any possible motive to
fabricate the complaint against him. See id.
The Missouri Court of Appeals reversed his convictions,
holding that the defendant "never indicated an intention to go
into prior sexual conduct . . . [and it was] not the stated
subject of cross-examination." Id. The court held that a
limited inquiry about the prior complaint would have been
permissible if it was confined to "show motive to fabricate and
never implicate [the statute]." Id. at 912. Therefore, "the
trial court view that reference to the prior incident is 'totally
irrelevant' is patently wrong." Id. at 912.
Evidence which "tends to cast any light upon the subject of
inquiry is relevant." Rader v. Commonwealth, 15 Va. App. 325,
331, 423 S.E.2d 207, 211 (1992) (citations omitted). "Relevant
evidence 'which has the tendency to add force and effect to a
party's defense is admissible, unless excluded by a specific rule
or policy consideration.'" Evans v. Commonwealth, 14 Va. App.
118, 122, 415 S.E.2d 851, 853-54 (1992) (citations omitted). In
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Evans, we held that the trial court erred in excluding evidence
that the complaining witness had contracted a venereal disease
and that she had knowledge of the disease. In reversing the
defendant's conviction for rape, we held,
Code § 18.2-67.7 . . . does not exclude the
type of evidence which Evans offered. Code
§ 18.2-67.7 narrowly limits the admissibility
of relevant "evidence of specific instances
of [the complaining witness's] prior sexual
conduct" to very carefully delineated
situations. Consequently, where relevant
evidence of the complaining witness's prior
sexual conduct does not fit within the
specific exceptions set forth in the statute,
it is not admissible. However, where
relevant evidence is not of prior sexual
"conduct," Code § 18.2-67.7 does not apply.
Id. at 122-23, 415 S.E.2d at 854 (citations omitted).
Jane Doe's testimony in this case bore many striking
similarities to her earlier testimony in Glymph. In both cases,
Doe claimed that she did not know her attacker prior to the day
of each incident. In both cases, Doe drove each man around in
her own automobile and admittedly spent time talking with each.
She also testified that she voluntarily consumed alcoholic
beverages and socialized with each man prior to the alleged
attacks. In each case, Doe stated that she requested and was
permitted to go to the bathroom after each man had started to
molest her. Such substantial similarities may suggest
fabrication.
We hold that the evidence of Doe's testimony in Glymph does
not fall within the definition of "prior sexual conduct" set out
in Code § 18.2-67.7. Brown did not seek to introduce evidence of
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any sexual acts in which Doe was involved. Neither did Brown
seek to introduce a prior false statement made by Doe regarding
previous sexual behavior. See Clinebell, 235 Va. 319, 368 S.E.2d
263.
Brown's counsel sought to question Doe about prior
testimony, not her prior conduct. Furthermore, the testimony
sought was not about sexual conduct. Brown's counsel asked Doe
questions relating to what allegedly occurred between Brown and
Doe prior to any possible sexual conduct. After Doe responded to
these questions, Brown's counsel attempted to ask Doe if what she
described constituted "a striking[ly] similar story to the story
you told in a rape case in 1989--." The Commonwealth objected to
this question, citing the "rape shield" law. The court sustained
the objection. The similarities between Doe's prior testimony
and her testimony in this case could have affected her
credibility and evidenced possible fabrication of her testimony
in this case.
Evidence of prior testimony in an unrelated rape
prosecution, when offered to show its substantial similarity for
the purpose of testing the credibility of the witness, does not
fall within the scope of Code § 18.2-67.7. Therefore, the trial
court erred in refusing to allow Brown to question Doe about her
prior testimony.
For the reasons stated herein, we reverse and remand the
case for retrial if the Commonwealth be so advised.
Reversed and remanded.
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