COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
BONNELL B. BOYD
MEMORANDUM OPINION * BY
v. Record No. 2038-97-3 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General;
Eugene Murphy, Assistant Attorney General, on
brief), for appellee.
A jury convicted Bonnell B. Boyd of two counts of statutory
rape and one count of object sexual penetration. He appeals four
rulings by the trial court: (1) it denied him access to the
victim's psychiatric records; (2) it directed the Commonwealth to
review those records for exculpatory evidence; (3) it instructed
the jury they were not to consider parole in fixing punishment;
and (4) it denied his motion to set aside the verdict. Finding
no error, we affirm the convictions.
The testimony comes primarily from the victim who was
thirteen years old. She recounted the incidents which occurred
in July, September, and October 1995. On each occasion the
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
victim was staying at a hotel with her step-grandfather, the
defendant. On the second occasion she was with her sister, and
on the third she was with a teenage boyfriend. The victim
testified that the first two times the defendant made sexual
advances towards her and then had sexual intercourse with her.
On the third occasion, the defendant tried to make her first have
sex with her friend and then with him. She refused, but later in
the evening while sleeping in the same bed with the defendant, he
inserted his finger into her vagina.
The teenage friend recalled the night he and the victim
spent the night with the defendant in his hotel room. The friend
recalled many of the details of what happened between the victim
and her step-grandfather and these tended to corroborate the
victim's account. However, the friend neither confirmed nor
refuted whether the sexual act took place.
The victim received treatment as a patient at DeJarnette's
Center which is an agency of the Department of Mental
Health/Mental Retardation. The defendant obtained a subpoena
duces tecum for the victim's mental health records pursuant to
Rule 3A:12(b). The trial court ordered the records returned to
the court rather than delivered to the attorneys. After the
trial court had reviewed all the subpoenaed records in camera, it
held a hearing to determine whether the defendant was entitled to
them. The defendant gave the following reasons to justify his
need to have the records:
It may lend some -- shed some light on what
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her motivation was. There are times that the
story that she has told just seems down right
fabricated and if her mental evaluation could
show that possibly she is, and this is just
an example because I don't know what is in
there, but it would show that, you know, that
she had a problem telling the truth or that
she used some type of hallucinogenic drugs
that may affect her ability to tell the
truth; then that is relevant and material to
the defense in this case.
The trial court ruled that the records were not exculpatory
and were psychiatric in nature. It noted that there was no
evidence "that would indicate that [the victim] was unable to
see, understand, perception type issues with the exception of,
perhaps, this marijuana deal." The court added that had there
been any suggestion that the victim was a fabricator, delusional,
or "believing things happened that didn't actually happen or that
type of thing," the records would have been released. It noted
that the defendant was informed about the victim's admission to
having tried marijuana. The trial court further advised that it
would keep the file open and if developments during trial showed
that any of the records had become material, he would alter his
ruling. The defendant never renewed the motion or asserted an
additional reason for obtaining access to the documents.
The defendant argues the trial court applied the wrong
standard for discovery of the records when it ruled that the
records were not exculpatory. While the trial court did rule the
records were not exculpatory, it also ruled they were not
material to the defense.
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A defendant is entitled to subpoena records when the
evidence sought is material or if a substantial basis for
claiming materiality exists. See Cox v. Commonwealth, 227 Va.
324, 328, 315 S.E.2d 228, 230 (1984). "A subpoena duces tecum
should not be used when it is not intended to produce evidentiary
materials but is intended as a 'fishing expedition' in the hope
of uncovering information material to the defendant's case."
Farish v. Commonwealth, 2 Va. App. 627, 630, 346 S.E.2d 736, 738
(1986) (citation omitted). Here, as in Farish, the defendant
failed to establish that the records were material to the defense
or that a substantial basis for claiming materiality exists.
The defendant asserts that the records were material because
they would permit an attack on the victim's credibility. He
argued at trial that the records "may shed some light on what her
motivation was"; they "could show that possibly" she had trouble
telling the truth; or they may show she used some sort of
hallucinogenic drugs "that may affect her ability to tell the
truth." The defendant conceded, "I don't know what is in there."
The defendant acknowledges, in effect, that he was
investigating, exploring possibilities; he was engaging in a
fishing expedition. Before he can satisfy the public policy
concerns against allowing a defendant to bring out potentially
embarrassing and unrelated details of the victim's personal life,
the defendant must demonstrate that the records were material.
Here, the proffer did not do this. To the contrary, the proffer
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showed the defendant wanted access to the records in the hope of
uncovering information material to his case. See id. Showing
substantial materiality may be a difficult burden because the
defendant does not know the content of that which he seeks to
discover. However, the law imposes this burden before ordering
the release of private, confidential records.
Here, the defendant theorized that the victim had problems
telling the truth and might fabricate stories. Unless he has a
substantial basis for claiming materiality exists, his claim for
access to the victim's psychiatric records is based on the
assumption that any record of mental health treatment lessens
credibility. That is not correct. Psychiatric records
concerning mental health issues are not always material to the
credibility of a witness. Absent a representation that the
particular records do contain such evidence, the defendant has
not shown that he is entitled to personal, confidential records.
Finding that the defendant failed to show that the records were
material, we affirm the trial court's ruling.
Next, the defendant claims that the trial court violated his
constitutional rights by ordering the Commonwealth to review the
psychiatric records to see if they contained exculpatory
evidence. The defendant never objected to this ruling until
after the trial. His objection comes too late. See Rule 5A:18;
Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996),
cert. denied, 117 S. Ct. 1724 (1997).
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During the sentencing deliberations the jury asked whether
the sentences would run concurrently and "how does parole fit
into this?" The court responded to the juror's question in open
court as follows: "Parole is a matter for the parole board and I
can't really tell you what effect that may or may not have on the
situation. I wish I could tell you more but legally that's all I
can tell you." The defendant contends that the instruction was
incorrect.
Before answering the jury's question the trial court said,
"and Counsel, help me if I misstate anything." The defendant
remained silent and made no objection to the instruction as it
was given. The defendant now argues that he failed to object
because he had no time during the court's statement to the jury
even though invited by the judge to do so. The claim is barred
by Rule 5A:18.
Finally, the defendant alleges that the trial court erred in
denying his motion to set aside the verdict and grant a new
trial. We find that there was sufficient evidence to support the
verdict. Accordingly, we find no error in the court's refusal to
grant defendant's motion.
When considering the sufficiency of the evidence on appeal,
we consider the evidence in the light most favorable to the
Commonwealth with all reasonable inferences fairly deducible
therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975). A trial court's judgment will not be
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disturbed on appeal unless it is plainly wrong or without
evidence to support it. See Code § 8.01-680; Stockton v.
Commonwealth, 227 Va. 124, 145-46, 314 S.E.2d 371, 381 (1984),
cert. denied, 489 U.S. 1071 (1989).
The victim's testimony furnished proof on each element of
each offense. If believed, it would constitute proof beyond a
reasonable doubt. This trial was a trial of credibility as was
acknowledged by the defendant during oral argument. The verdict
reflects that the jury found the victim to be credible.
The credibility of witnesses and the weight to be accorded
their testimony are matters solely for the fact finder, who has
the opportunity to see and hear the witnesses, to observe their
demeanor, and to weigh their explanation of events. See
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,
736-37 (1985). The fact finder's determination that a witness is
credible "may only be disturbed on appeal if this Court finds
that [the witness'] testimony was 'inherently incredible, or so
contrary to human experience as to render it unworthy of
belief.'" Robertson v. Commonwealth, 12 Va. App. 854, 858, 406
S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth, 228 Va.
296, 299-300, 321 S.E.2d 202, 204 (1984)).
For the foregoing reasons, we affirm the trial court's
rulings.
Affirmed.
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Bonnell B. Boyd v. Commonwealth of Virginia
Combined Opinion