COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
LATOVIA JOEL WHITEHEAD
MEMORANDUM OPINION * BY
v. Record No. 0576-95-3 JUDGE ROSEMARIE ANNUNZIATA
MAY 21, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Lawrence D. Gott, Public Defender, for
appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Appellant, Latovia Joel Whitehead, appeals his conviction of
sodomy in violation of Code § 18.2-67.1. He contends the trial
court erred in allowing his wife to testify against him. Finding
no error, we affirm.
I.
The Commonwealth's evidence consisted solely of the
testimony of appellant's wife, Rhonda Whitehead ("Rhonda").
Rhonda testified that she was married to appellant and that she
and appellant were the parents of two girls, L., age 5, and a
younger child, O. Appellant objected to further testimony on the
ground of spousal privilege. The court overruled the objection,
stating that an exception to the spousal privilege rule applied
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
because appellant was being prosecuted for an offense allegedly
committed against his and his wife's minor child.
Rhonda testified that she lived in an apartment with the two
girls and that appellant, who was not on the lease, stayed there
occasionally. She further testified that on the afternoon of
July 2, 1994 she asked appellant to watch the girls while she
went to the store. When she returned, Rhonda noticed that the
volume of the television was turned up and that the front door
was locked. Upon entering, she found O. asleep on the couch but
saw neither appellant nor L. Rhonda searched the apartment for
the two and, upon reaching the bathroom, found the door locked.
She unlocked and opened the door to see L. standing against the
tub and appellant standing, with his penis in the child's mouth.
Rhonda asked appellant what he was doing, but he did not respond
as he exited the bathroom. After "fussing" with his wife,
appellant responded to her inquiry, stating that "she asked for
it, and she wanted some."
II.
Code § 19.2-271.2 provides, in part:
In criminal cases husband and wife
shall be allowed, and, subject to the
rules of evidence governing other witnesses
and subject to the exception stated in
§ 8.01-398, may be compelled to testify in
behalf of each other, but neither shall be
compelled, nor, without the consent of the
other, allowed, to be called as a witness
against the other, except (i) in the case of
a prosecution for an offense committed by one
against . . . a minor child of either, . . . .
In the prosecution for a criminal
offense as set forth . . . above, each shall
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be a competent witness except as to
privileged communications.
This statute protects two "separate and distinct" interests. See
Stewart v. Commonwealth, 219 Va. 887, 893, 252 S.E.2d 329, 333
(1979); Church v. Commonwealth, 230 Va. 208, 212-13, 335 S.E.2d
823, 826 (1985). One interest is "[t]he privilege of an accused
to prevent his spouse from testifying against him." E.g.,
Church, 230 Va. at 212, 335 S.E.2d at 826. The other privilege
"insur[es] the inviolability of confidential communications
between spouses." Id.; see also Code § 8.01-398.
The statute sets out a clear exception to appellant's right
to invoke his testimonial privilege inasmuch as he was prosecuted
for an offense committed against his and his wife's minor child.
Code § 19.2-271.2; see also Cumbee v. Commonwealth, 219 Va.
1132, 1137, 254 S.E.2d 112, 115-16 (1979).
Appellant's contention that his interspousal confidential
communications privilege was violated is controlled by the
holding in Church. Because appellant's objection at trial
addressed only his testimonial privilege, his claim based on a
violation of his interspousal confidential communications
privilege is procedurally barred. See Rule 5A:18; Church, 230
Va. at 212-13, 335 S.E.2d at 826.
We find no reason to invoke the ends of justice exception to
Rule 5A:18. Privileged communications include "all information
or knowledge privately imparted and made known by one spouse to
the other by virtue of and in consequence of the marital relation
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through conduct, acts, signs, and spoken or written words."
Edwards v. Commonwealth, 20 Va. App. 470, 474, 457 S.E.2d 797,
799 (1995) (interpreting privilege as set forth in Code
§ 8.01-398(A)) (quoting Menefee v. Commonwealth, 189 Va. 900,
912, 55 S.E.2d 9, 15 (1949)). Conduct which does not convey
information to the other spouse, such as a husband's beating of
his wife and daughter, is not privileged. Id. at 476, 457 S.E.2d
at 800 (citing Osborne v. Commonwealth, 214 Va. 691, 692, 204
S.E.2d 289, 290 (1974)). We find appellant's argument that by
placing his penis in his daughter's mouth he communicated
privileged information to his wife is meritless.
Furthermore, even assuming husband's conduct was a
communication of information, the privilege only protects
confidential communications "of a secret nature between husband
and wife." Id. at 474, 457 S.E.2d at 800 (quoting Menefee, 189
Va. at 907, 55 S.E.2d at 13). Admissibility depends on whether
the communication was intended to be secret. Id. at 475, 457
S.E.2d at 800. Here, the evidence supports the inference that
appellant intended his "communication" to be a secret from his
wife, not a secret between the two.
Finally, in light of Rhonda's testimony that she saw
appellant with his penis in their daughter's mouth, any error of
the trial court allowing wife to testify as to appellant's
statement that "she asked for it, and she wanted some" is
likewise harmless. See Lavinder v. Commonwealth, 12 Va. App.
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1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).
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Accordingly, appellant's conviction is affirmed.
Affirmed.
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