COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judges Duff and Hodges
Argued at Alexandria, Virginia
JAMES MONROE HAGUE, S/K/A
JAMES M. HAGUE, IV
MEMORANDUM OPINION * BY
v. Record No. 1274-99-2 JUDGE CHARLES H. DUFF
MAY 23, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Craig S. Cooley for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant was convicted of rape. On appeal, appellant argues
that the trial court committed reversible error in refusing to
exclude a material witness, the victim, upon his motion to exclude
all witnesses. We disagree and affirm.
BACKGROUND
Christopher Luck and the victim went to the house where Luck
rented a room. An argument ensued between Luck and several
people, including appellant. Appellant repeatedly hit Luck and
motioned to the victim to go into a bedroom. Appellant then had
intercourse with the victim. 1
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
In his petition for appeal, appellant also argued that the
evidence was insufficient to support the rape conviction because
Appellant was indicted for malicious wounding and rape. At
the beginning of the trial, appellant move to exclude all material
witnesses. Since Luck, the victim in the malicious wounding
charge, was to testify first, the Commonwealth requested that the
rape victim be allowed to remain in the courtroom. The
Commonwealth argued that the rape victim had a right to be present
in the courtroom and that all victims would be considered material
witnesses. The trial court permitted the rape victim to remain in
the courtroom during Luck's testimony.
THE EXCLUSION OF A VICTIM FROM THE COURTROOM
Appellant argues that Code §§ 19.2-11.01(4)(b) and
19.2-265.01 mandated that the victim be excluded from the
courtroom. 2 On appeal, appellant also argues that his due process
right to the presumption of innocence was violated since Code
§ 19.2-11.01(4)(b) permitted a victim of a crime to remain in the
courtroom.
At trial, appellant argued that until the evidence
established that a person was a victim, the alleged victim stood
in the same position as any other witness in the case and should
be excluded from the courtroom. Appellant never argued that his
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the victim consented to the intercourse. Appellant's petition
for appeal was denied as to this question.
2
Effective July 1, 1999, these statutes were amended to
permit a victim, even if a material witness, to remain in the
courtroom. Under the present statutes, a victim is permitted to
remain in the courtroom, "unless the presence of the victim
would substantially impair the conduct of a fair trial."
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due process right was violated. "The Court of Appeals will not
consider an argument on appeal which was not presented to the
trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998). See Rule 5A:18. Accordingly, this
argument will not be considered on appeal.
At the time of appellant's trial, Code § 19.2-11.01(4)(b)
provided that "[v]ictims shall have the right to remain in the
courtroom during a criminal trial or proceeding pursuant to the
provisions of § 19.2-265.01 unless excluded by the court as a
material witness." At the time of appellant's trial, Code
§ 19.2-265.01 provided in pertinent part:
[A]ny victim as defined by § 19.2-11.01 may
remain in the courtroom. . . . However, if
either the attorney for the Commonwealth or
any defendant represents to the court that
he intends to call as a material witness any
victim as defined in § 19.2-11.01, the court
shall exclude that person from the trial or
proceeding.
Assuming that, pursuant to former Code § 19.2-265.01, the
trial court should have excluded the victim from the courtroom,
the trial court did not commit reversible error.
"The 'purpose of excluding the witnesses from the courtroom
is, of course, to deprive a later witness of the opportunity of
shaping his testimony to correspond to that of an earlier one.'"
Bennett v. Commonwealth, 236 Va. 448, 465, 374 S.E.2d 303, 314
(1988) (citation omitted). "A trial court has discretion to
decide whether a witness who violates an exclusion order should
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be prevented from testifying. Factors to be considered in
resolving the question include whether there was prejudice to
the defendant and whether there was intentional impropriety
attributable to the prosecution." Id. (citations omitted).
While the victim heard Luck's testimony, his testimony
addressed the malicious wounding charge and concerned
appellant's actions prior to appellant and the victim going into
the bedroom. Additionally, the victim's testimony was not
influenced by Luck's, since her testimony did not mirror Luck's
testimony. Appellant's defense to the rape charge was that the
victim consented to the intercourse. Luck's testimony did not
address the issue of whether the victim consented to the
intercourse. Appellant has failed to show any prejudice
resulting from the trial court's decision permitting the rape
victim to remain in the courtroom during Luck's testimony.
According, appellant's rape conviction is affirmed.
Affirmed.
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James Monroe Hague, s/k/a etc. v. Commonwealth
Combined Opinion