COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
YAZID ABUNAAJ
OPINION BY
v. Record No. 1854-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 21, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge
Jonathan Shapiro for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Yazid Abunaaj (appellant) was convicted in a jury trial of
rape in violation of Code § 18.2-61 and animate object sexual
penetration in violation of Code § 18.2-67.2. On appeal, he
contends the trial court erred in: (1) admitting a tape
recording of a telephone conversation he had with the victim; (2)
giving insufficient cautionary instructions and rulings regarding
alleged pretrial offers of payment to potential witnesses; (3)
allowing testimony that appellant was HIV-positive; and (4)
refusing to grant surrebuttal testimony. For the following
reasons, we reverse the convictions.
I. Background
"[W]e review the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Pavlick v. Commonwealth, 25 Va. App. 538,
541, 489 S.E.2d 720, 721 (1997), aff'd, 27 Va. App. 219, 497
S.E.2d 920 (1998) (en banc). Appellant and the victim, D.T.,
worked at adjoining businesses in a shopping mall. They met on
March 28, 1996, when D.T. and her husband had their hair cut at
appellant's workplace. D.T. knew appellant by sight but denied
the existence of a closer relationship prior to that date.
On April 2, 1996, D.T. and appellant met after work and
spent thirty to forty-five minutes parked in his car. D.T.
testified that during their conversation appellant expressed an
interest in a relationship with her but she refused, saying they
could be friends. She further testified that appellant did not
kiss her or touch her while they were talking in the car.
Appellant testified that he and D.T. engaged in intimate kissing
and touching while in the car, and they attempted, but did not
complete, sexual intercourse. When D.T. returned home that
evening she did not tell her husband of her meeting with
appellant.
The next morning, April 3, 1996, D.T. went to work, but, due
to a scheduling mix-up, another employee, Hong Nguyen, was also
present. They decided that Nguyen would work the morning shift
and D.T. would work in the afternoon. After she left the store,
D.T. saw appellant in the mall and agreed to go to lunch with
him. When they left for lunch, appellant said he had to stop by
his house to retrieve something, and they drove to his home in
Arlington.
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Appellant showed D.T. around the house, and when they
reached his bedroom he began to make advances toward her and kiss
her. She said, "No, I told you we were going to lunch." He
relented and asked her to look at pictures while he completed a
few chores. Appellant left the room for a moment and when he
returned he pushed D.T. down on the bed and tried to kiss her.
She told him no, but "he wouldn't leave me alone." She
testified, "I wanted to leave but he wouldn't let me go." She
resisted as he attempted to remove her clothing. They struggled
"for quite a while," until appellant pinned D.T. on her stomach,
removed his pants and her underpants, and penetrated her vagina
with his finger and his penis. When he was done, he got up "as
if nothing had happened" and suggested they shower together.
While appellant showered, D.T. dressed and left appellant's
house in tears. She used the phone at a service station two
blocks away to call a cab. The cab took her to the shopping
mall, where she stopped at an ATM for the fare and drove home.
When D.T. arrived at home she called Nguyen and asked Nguyen to
cover her shift that afternoon. Throughout the afternoon and
evening appellant stopped in and phoned the store, asking about
"the girl."
Later, D.T. informed her husband of the attack and reported
the rape. The police photographed bruises on her arm and sent
her to the hospital for an examination. Officer Kevin White saw
"visually obvious" developing bruises on both of D.T.'s forearms
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in the "wrist area."
At trial, the defense called eight witnesses who testified
that appellant and D.T. had friendly contact at the mall. In his
own defense, appellant testified that D.T. had consented to have
intercourse. The Commonwealth put on rebuttal evidence, much of
which was admitted over defense objection. The contested
evidence included a tape recorded conversation between appellant
and D.T. the day after the incident and testimony from Mark
Wright, an inmate in jail with appellant, regarding appellant's
HIV status. The trial court denied appellant's request to put on
surrebuttal evidence in response to the tape recording and
Wright's testimony.
II. Tape Recording
The Commonwealth cross-examined appellant about a telephone
conversation he had with D.T. the day after the incident.
Appellant testified that he remembered the conversation but could
not recall specifics. He denied apologizing to D.T. for not
letting her leave his house and denied saying he had lost
control.
On rebuttal, the Commonwealth produced a tape recording of
the conversation, revealing that the day following the incident,
at the request of the police, D.T. had initiated telephone
contact with appellant from police headquarters. D.T. testified
that Detective Chase told her to tell appellant she had said,
"no." Police officers recorded the call on police equipment and
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were present in the room with D.T. during the entire
conversation, part of which took place on a speaker phone.
Appellant objected to the admission of the tape on the ground it
had not been disclosed to the defense pursuant to his discovery
request. The trial court overruled appellant's objection and
denied his request to review the tape prior to its introduction
into evidence.
The Commonwealth played the tape and distributed transcripts
to the jury. On the tape, appellant made the following
statements: "I know. I know you didn't want to do it. I don't
know why. I know I've been stupid, a little bit." In response
to D.T.'s statement that she could not understand his behavior,
appellant said: "Okay. I've been crazy. I've been stupid.
I've been, I make a mistake. I make a mistake. Now, I'm sorry
about it. I'll try to do my best to prove I'm not that way. I
just lost my control for, I don't know."
Appellant contends the Commonwealth's failure to disclose
the existence of the tape and its contents violated its
obligation under the parties' consent discovery order to turn
over all recorded statements made to law enforcement officers.
We agree.
The parties' consent discovery order, entered July 24, 1996,
was a limited version of Rule 3A:11. 1 The order provided for
1
The parties' consent discovery order inserts language
limiting the Commonwealth's disclosure obligation to recorded
statements made by appellant "to law enforcement officers."
Rule 3A:11 distinguishes between unrecorded statements and
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inspection of "[a]ll written or recorded statements or
confessions made by the accused to law enforcement officers, or
copies thereof, or the substance of any oral confessions or oral
statements made by the accused to any law enforcement officer."
(Emphasis added). Appellant's trial counsel agreed to the
limited form of the order in response to the prosecutor's
assurance of "open file" discovery. This Court has held that a
consent discovery order, rather than Rule 3A:11, will govern
discovery in a criminal case when such an order is in place. See
Williams v. Commonwealth, 16 Va. App. 928, 934-35, 434 S.E.2d
343, 347 (1993) (enforcing consent discovery order identical in
relevant part to the instant order). 2
recorded statements. Rule 3A:11(b)(1) provides: "Upon written
motion of an accused a court shall order the Commonwealth's
attorney to permit the accused to inspect and copy or photograph
any relevant (i) written or recorded statements or confessions
made by the accused, or copies thereof, or the substance of any
oral statements or confessions made by the accused to any law
enforcement officer, the existence of which is known to the
attorney for the Commonwealth . . . ." (Emphasis added). Under
Rule 3A:11, appellant's recorded statements known to the
Commonwealth must be disclosed, whether or not they were made to
law enforcement officers. The Rule requires disclosure of
appellant's unrecorded statements only if they were made to law
enforcement officers. Virginia is one of several states that
draws this distinction. See 2 LaFave & Israel, Criminal
Procedure § 19.3(c) (1991).
2
The Commonwealth argues that this Court's decision in
Williams relieved it of the duty to disclose the taped
conversation. See Williams v. Commonwealth, 16 Va. App. 928, 434
S.E.2d 343 (1993). In Williams, the Commonwealth was not
required to disclose the defendant's letter instructing a friend
on his testimony, because there was no evidence the friend was a
law enforcement officer or that the police were involved in
initiating the contact or were active participants in it. See
id. The instant case is distinguishable on the basis of the
degree of police involvement and participation in the challenged
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By means of the consent discovery order and a separate
letter restricting its "open file" policy to evidence to be used
during its case-in-chief, the Commonwealth limited its disclosure
obligation. Assuming without deciding that the Commonwealth's
procedure effectively fulfilled its duty to disclose, see United
States v. Brodie, 871 F.2d 125 (D.C. Cir. 1989) (pretrial
disclosure under Federal Rule of Criminal Procedure 16 applies to
statements of the defendant to be used in impeachment as well as
case-in-chief); United States v. Scafe, 822 F.2d 928, 935 (10th
Cir. 1987) (Rule 16(a)(1)(A) is not restricted to statements to
be used in the case-in-chief, it applies to "relevant written or
recorded statements made by the defendant" irrespective of their
intended use); United States v. Caldwell, 543 F.2d 1333 (D.C.
Cir. 1974), cert. denied, 423 U.S. 1087 (1976) (applying federal
disclosure rules to statements made to third parties as well as
to agents of the government), we consider whether the
Commonwealth's failure to disclose the recorded conversation
violated the terms of the consent discovery order.
The consent discovery order required disclosure of all
recorded statements of the accused "made to law enforcement
officers." Under the circumstances of this case, the recorded
statements were effectively made to the police. D.T. called
appellant from the police station on a police speaker phone. The
police initiated the contact and recorded the call on their
communication.
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equipment. Police officers coached D.T. on what to say and were
present in the room at the time of the call. Although appellant
was speaking to the victim, these facts demonstrate police
involvement to such a degree that appellant's statements were
effectively made to the police as well.
Additionally, D.T.'s compliance with police requests
effectively made her an agent of the police. D.T. initiated
telephone contact with appellant because a police officer told
her it would be in her best interests. She phoned from the
police station and allowed the call to be recorded on police
equipment for the same reason. She lied to appellant and told
him she was calling from home to avoid revealing her location.
She followed a detective's instructions and told appellant she
said "no" to his advances. Because appellant's statements were
made directly to an agent of the police who was in the presence
of police officers, and they were recorded on police equipment,
the tape of the conversation constituted a recorded statement
made to law enforcement officers. Consequently, we hold that
even under the limited discovery order, the Commonwealth was
required to produce the tape recording and transcript of the
conversation for appellant's inspection, and its failure to do so
was a violation of even the limited discovery order.
To be entitled to relief, appellant must demonstrate
prejudice resulting from the discovery violation. See Conway v.
Commonwealth, 12 Va. App. 711, 716, 407 S.E.2d 310, 313 (1991)
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(en banc) (Commonwealth violated discovery order by failing to
disclose a tape recording of the defendant's conversation with
the police). The instant facts resemble the situation in Conway,
where, "[w]hile the credibility of both Conway and Detective
Harding were before the jury, only Harding had the opportunity to
listen to a recording of the conversation prior to testifying
about its content." Id. at 716, 407 S.E.2d at 313. Although the
Commonwealth disclosed to the defense the substance of Conway's
conversation with Detective Harding,
Conway was not told until after he testified
that a recording existed which directly
supported Harding's recollection of the
conversation and contradicted his own.
Therefore, we find that the Commonwealth's
failure to disclose the existence of the tape
prior to Conway's testimony prejudiced
Conway's defense.
Furthermore, we find that the prejudice
suffered by Conway was not so slight as to
make admission of the tape recording harmless
error. The evidence presented at trial was
circumstantial and the Commonwealth's case
rested to a large extent on the credibility
of witnesses. Use of the tape recording
during rebuttal without prior disclosure
undercut Conway's credibility without the
opportunity for explanation or
rehabilitation. In closing argument, the
Commonwealth repeatedly emphasized that
Conway's entire testimony was untruthful and
the correct version of events was that
presented by the Commonwealth's witnesses.
On this record, we cannot say that Conway had
a fair trial on the merits of the case.
Id. at 716, 407 S.E.2d at 313.
The prejudice was equally compelling in the instant case.
Appellant, unaware of the existence of the tape, acknowledged on
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cross-examination that he spoke with D.T. the day after the
incident, but as he recalled the conversation six months earlier,
he denied making several statements. Appellant first became
aware of the existence of the tape when the Commonwealth
introduced it to attack his credibility on rebuttal.
Here, as in Conway, the Commonwealth's case relied upon
circumstantial evidence and the credibility of the witnesses.
The prosecution's use of appellant's undisclosed recorded
statements to contradict his trial testimony clearly affected his
credibility before the jury, and he was given no opportunity to
explain his statements. "On this record, we cannot say that
[appellant] had a fair trial on the merits of the case." Id.
Consequently, we hold that the admission of the tape and
transcript was not harmless error, and we reverse.
III. HIV Testimony
Because this issue is likely to arise again on remand, we
also address whether the trial court erred in allowing testimony
that appellant was HIV-positive without giving him the
opportunity to provide evidence to the contrary.
In its rebuttal case, the Commonwealth called Mark Wright, a
prior acquaintance of appellant's and an inmate at the jail where
appellant was housed. Wright testified that, while at the jail,
appellant told him that on the day of the incident "[D.T.] told
him three times to stop." When asked about his motive for
revealing appellant's confession, Wright, over defense objection,
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said he was testifying in part because appellant had told him he
was infected with the HIV virus and "I felt like I just couldn't
live with myself if that was true and he was going and having sex
with people and he did, in fact, have the virus."
The trial court instructed the jury that "[w]hether or not
the defendant has AIDS or tested positive for HIV is not the
issue. This is being offered to show this gentleman's motivation
for doing what he did." The trial court denied appellant's
request to testify on surrebuttal that he was not HIV-positive or
to introduce the newly acquired results of a test conducted by
the Arlington County Sheriff's Department which established that
appellant was HIV-negative at the time of his incarceration.
Appellant contends the trial court erred in allowing the
jury to consider any testimony concerning his HIV status because
its prejudicial effect outweighed its probative value.
Additionally, appellant argues the cautionary instruction was
insufficient to overcome the prejudice and the trial court
compounded the error when it refused to allow him to rebut the
prejudicial testimony.
"'The admissibility of evidence is within the broad
discretion of the trial court,'" Blaylock v. Commonwealth, 26 Va.
App. 579, 593, 496 S.E.2d 97, 104 (1998), and juries are presumed
to follow limiting instructions. See Mills v. Commonwealth, 24
Va. App. 415, 420, 482 S.E.2d 860, 862 (1997). A judgment will
not be reversed for the admission of evidence which the court
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subsequently directs the jury to disregard "unless there is a
manifest probability that the evidence . . . has been prejudicial
to the adverse party." Coffey v. Commonwealth, 188 Va. 629, 636,
51 S.E.2d 215, 218 (1949). Conversely, as an exception to the
rule, if the prejudicial effect of the impropriety cannot be
removed by the instructions of the trial court, the defendant is
entitled to a new trial. See id.; United States v. Ham, 998 F.2d
1247, 1251-52 (4th Cir. 1993) (evidence of child molestation and
homosexuality was so inflammatory as to outweigh its value
providing a motive for murder).
In the instant case, the prejudicial effect of Wright's
statement that appellant was HIV-positive and knowingly put D.T.
at risk outweighed its probative value in providing a motive for
Wright's testimony about the rape. Furthermore, the cautionary
instruction left the jury free to believe appellant had AIDS, and
the trial court's subsequent denial of appellant's request to put
on surrebuttal evidence that he was not HIV-positive compounded
the error. We hold that the admission of the HIV testimony and
the subsequent exclusion of contrary evidence were error, and the
cautionary instruction was insufficient to cure the prejudice.
For the foregoing reasons, we reverse the convictions and
remand for further proceedings if the Commonwealth be so
3
advised.
3
Appellant also argues the trial court erred in its rulings
and cautionary instructions concerning allegations of bribery of
potential witnesses. Because the trial court excluded these
statements and the error involved the viability of a curative
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Reversed and remanded.
instruction, this issue is unlikely to arise on remand and we
need not address it.
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