COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
TYRONE TERRY
OPINION BY
v. Record No. 2608-95-2 JUDGE SAM W. COLEMAN III
MAY 6, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The defendant, Tyrone Terry, was convicted in a jury trial
for raping a minor child in violation of Code § 18.2-61. On
appeal, he contends that the victim's complaint of rape to her
mother, made ten months after the alleged rape, was not
sufficiently recent and reliable to have been admissible into
evidence under Code § 19.2-268.2. Finding no error, we affirm
the defendant's conviction.
BACKGROUND
On appeal, we review the evidence and all reasonable
inferences fairly deducible therefrom in the light most favorable
to the Commonwealth. Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). The evidence proved that at the
time of the offense the victim (N.F.) was twelve years old. One
evening during April 1994, N.F.'s mother, a private duty nurse,
had to stay overnight at a patient's home. The mother asked the
defendant, a close friend, to house-sit for her. The defendant
and N.F. were alone in the house that evening. Around 3:00 a.m.,
the defendant entered N.F.'s bedroom and raped her.
A few months after the rape, N.F. told her friend "Huck"
that the defendant had raped her. She did so after "Huck" told
her about his niece having been raped. He encouraged N.F. to
tell her mother, but she feared her mother would not believe her.
N.F. testified that she also felt partially responsible for the
rape because she had asked her mother if she could stay home that
night. N.F. further testified that she did not tell her father
because she feared he would become angry, injure the defendant,
and end up in jail. Sometime after N.F. told "Huck" about the
rape, she told her friend, Latisha. While discussing the rape
with these two friends, "Huck" threatened to tell N.F.'s mother
if she did not. N.F. telephoned her mother, met her at home, and
told her about the rape. The mother immediately called the
police.
Over defense counsel's objection, the mother testified that
N.F. called her on February 10, 1995, and said she wanted to
talk. N.F. then reported that the defendant had raped her in
April 1994. The trial judge ruled that the ten month delay in
reporting the rape had been sufficiently explained and ruled the
evidence admissible. The trial judge then instructed the jury:
The evidence of a recent complaint of sexual
assault such as this is admissible and you
may consider it, but only for the purpose of
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corroborating the other evidence in the case
. . . . It is not independent evidence of
the act itself. It is only corroborative in
nature and that is the only basis upon which
you can receive it. The question of its
timeliness and how much time took place to
make the report, is a matter for you to
consider as you weigh the evidence and the
credibility of the evidence.
ANALYSIS
The "recent complaint" exception to the hearsay rule is
derived from the early English common law rule requiring the
victim of a violent crime to raise a "hue and cry" in the
neighborhood so the neighbors would come to the victim's aid,
engage in a search for the attacker, and dispel the inference
that the victim may have lied about having been attacked. See
Allan R. Pearlman, Case Note, Fresh-Complaint Rule, 23 Rutgers
L.J. 189, 193 (1991). Under the "hue and cry" rule, which is now
discredited, a prosecutrix in a rape case was required to prove a
timely complaint of rape in order to prove that a rape had
occurred. See Woodard v. Commonwealth, 19 Va. App. 24, 27, 448
S.E.2d 328, 330 (1994); Michael H. Graham, The Cry of Rape: The
Prompt Complaint Doctrine and the Federal Rules of Evidence, 19
Willamette L. Rev. 489, 491 (1983).
Since the decline of the "hue and cry" rule, three theories
have emerged under which evidence of a recent complaint of rape
may be admissible. First, the complaint may be admitted to
corroborate the complaining witness' testimony and to rebut the
inference of recent fabrication that is raised by a victim's
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silence. See 4 Wigmore, Evidence § 1135(A), at 298-99
(Chadbourne rev. 1972); Graham, supra, at 492-94. Under this
approach, the evidence is corroborative; thus, the substance or
details of the complaint are not admissible and the complaining
witness is required to testify before the complaint is
admissible. See Wigmore, supra, § 1136, at 307; Graham, supra,
at 493. The second theory admits evidence of a recent complaint
as a prior consistent statement of the complainant to rebut a
charge of recent fabrication, improper influence or motive. See
Wigmore, supra, § 1137, at 311; Graham, supra, at 494-95. Under
this approach, the complainant must testify; however, the details
of the complaint are admissible as long as the testimony is
"rebutting in nature." Wigmore, supra, § 1138, at 311; Graham,
supra, at 494. The third theory admits evidence of a recent
complaint under the "excited utterance" or under the res gestae
exception to the hearsay rule. The details of the statement are
admissible and the complainant need not testify, but the
complaint must have been made immediately after or
contemporaneous with the event, meeting the requirements for an
excited utterance. Wigmore, supra, § 1139, at 313-14; Graham,
supra, at 495-500.
Virginia has traditionally followed the first theory,
admitting evidence of recent complaints of rape as corroborative
evidence. See Fisher v. Commonwealth, 228 Va. 296, 300, 321
S.E.2d 202, 204 (1984); Cartera v. Commonwealth, 219 Va. 516,
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518, 248 S.E.2d 784, 786 (1978) ("Only the fact that the
complaint was made . . . is admissible; neither the details of
the alleged offense nor a description of the alleged assailant,
as reported by the victim, may be admitted."); Herron v.
Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198 (1967).
Thus, under Virginia's common law "recent complaint" rule,
evidence of a prompt complaint of rape is admissible to
corroborate the complaining witness' testimony regarding the
occurrence of the rape. See McManus v. Commonwealth, 16 Va. App.
310, 312, 429 S.E.2d 475, 476 (1993).
Code § 19.2-268.2, enacted in 1993, embodies the common law
rule and states in pertinent part, "in any prosecution for
criminal sexual assault . . . the fact that the person injured
made complaint of the offense recently after commission of the
offense is admissible, not as independent evidence of the
offense, but for the purpose of corroborating the testimony of
the complaining witness." The statute codifies Virginia's common
law "recent complaint" hearsay exception, see Report of The
Commission on The Reduction of Sexual Assault Victimization in
Virginia, Sen. Doc. No. 31, at 3 (1993), and extends the common
law rule to crimes for which the rule did not previously apply,
such as sodomy, aggravated sexual battery, fornication, and
indecent liberties with children. See 2 Charles E. Friend, The
Law of Evidence in Virginia § 18-29 (4th ed. 1993); see also
Pepoon v. Commonwealth, 192 Va. 804, 811, 66 S.E.2d 854, 858
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(1951) (holding that the "recent complaint" rule applies only to
rape cases, not sodomy cases).
The dispositive question in this case is how recent or
timely must a complaint of rape be in order to be admissible.
Originally, Virginia courts required the complaint to be almost
immediate in order to be admissible.
Such a victim must at once make complaint, or
she will be suspected of consent. The
instincts of human nature, revolting at the
unnatural and heinous crime, compels [sic]
the victim to cry out and denounce its foul
perpetrator; and such complaint, made under
the smart and indignation of such a cruel
injury, has been received by the courts as
evidence. But even in such cases the
evidence is confined to the new complaint,
and no detailed statement of the transaction
is permitted to go in evidence.
Haynes v. Commonwealth, 69 Va. (28 Gratt.) 942, 947 (1877). In a
1951 sodomy case, the Virginia Supreme Court said that,
[e]ven if the rule admitting evidence of a
recent complaint in rape cases were extended
to all sex offenses, including sodomy . . .
it must first be established that the
testimony which is sought to be introduced as
a complaint was in fact a recent complaint
and conforms to the rules of evidence
controlling the admission of such testimony.
Pepoon, 192 Va. at 811, 66 S.E.2d at 858. In Herron v.
Commonwealth, the prosecutrix reported the rape two days after it
occurred. 208 Va. at 330, 157 S.E.2d at 198. The Supreme Court
reiterated that a "complaint should be made soon after the
offense occurred"; however, on the facts of the case, the court
held that the prosecutrix's delay of two days went to the weight
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to be given to the complaint, not its admissibility. Id.
In relaxing the requirement that a complaint of rape must be
immediate in order to be admissible, the Supreme Court has
recognized that good reason may exist for a victim to delay
reporting a rape. In Willis & Bell v. Commonwealth, 218 Va. 560,
563, 238 S.E.2d 811, 813 (1977), the Court stated that "[t]he
failure to report an alleged rape by force and violence for an
unreasonable period after the incident occurred casts suspicion
and doubt on the truthfulness of the story of a prosecutrix
unless there is a credible explanation given for such delay."
See also Broaddus v. Commonwealth, 126 Va. 733, 748, 101 S.E.
321, 325-26 (1919) (holding that because the victim offered an
explanation for delay which was not inherently incredible, the
complaint was admissible and the delay was a credibility issue to
be resolved by the jury).
This Court has held that the "'only time requirement is that
the complaint have been made without a delay which is unexplained
or is inconsistent with the occurrence of the offense.'"
Woodard, 19 Va. App. at 27, 448 S.E.2d at 330 (quoting Edward W.
Cleary, McCormick on Evidence § 297 (3d ed. 1984)). "The initial
determination of timeliness under the recent complaint rule is
committed to the sound discretion of the trial court, and
thereafter, timeliness is a matter for the trier of fact to
consider in weighing the evidence." Id. In Woodard, the victim
was thirteen years old and was raped by her mother's cousin.
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Several months after the rape, the victim told her friend, who
was also a rape victim, what had happened. She also told her
aunt one month after telling her friend. The Court held that the
delay was reasonably "explained by and completely consistent with
the all too common circumstances surrounding sexual assault on
minors -- fear of disbelief by others and threat of further harm
from the assailant." Id. at 28, 448 S.E.2d at 330.
In Lindsey v. Commonwealth, 22 Va. App. 11, 467 S.E.2d 824
(1996), this Court upheld the admission of a complaint made two
years after the rape and held that "while the lapse of time
between the alleged event and the report is certainly an issue,
it is a question of weight rather than of admissibility." Id. at
16, 467 S.E.2d at 827. Quoting Wigmore on Evidence, the Court in
Lindsey said that when the evidence of a complaint is offered to
"'negative the supposed silence of the woman, it is perceived
that the fact of complaint at any time should be received.'" Id.
We do not read Lindsey as adopting a rule inconsistent with
Woodard and the Virginia common law. 1 Under both Woodard and
Lindsey, timeliness is a factor in determining the admissibility
of the complaint, the weight of the evidence, and the credibility
of the prosecutrix. Thus, under Code § 19.2-268.2, timeliness,
1
Although Code § 19.2-268.2 had been enacted when the
Lindsey case was tried, it was not expressly relied upon by the
trial court or the Court of Appeals in its opinion as the basis
for admitting the evidence of the recent complaint of rape.
Nevertheless, because we have held that Code § 19.2-268.2
incorporated the common law and expanded it to other offenses,
the holdings in Lindsey and Woodard are germane.
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in relation to the reasons for the delay, must initially be
decided by the trial judge in order to determine whether evidence
of the complaint can be admitted. To the extent that the
appellant reads Lindsey to depart from the common law rule
reiterated in Woodard, we find that Code § 19.2-268.2 controls
our decision, and Code § 19.2-268.2 is a codification of the
common law as stated in Woodard.
Accordingly, we hold that the trial judge did not abuse his
discretion by admitting N.F.'s complaint to her mother. While
N.F. did not tell her mother about the rape until ten months
later, she explained the reasons for the delay. The trial judge
found the explanation to be consistent with the nature and
circumstances surrounding the offense. N.F. was afraid her
mother would not believe her because the defendant was her
mother's good friend. She did not tell her father for fear that
he would hurt the defendant and end up in jail. She testified
that she felt responsible for the rape because she insisted on
staying home instead of going with her mother. Thus, the trial
court did not err by holding the complaint sufficiently recent to
be admissible and then permitting the jury to consider the
timeliness of the complaint in determining the weight to give the
evidence.
For these reasons, we affirm the defendant's conviction.
Affirmed.
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