Commonwealth v. Beverly

52 Va. Cir. 255, 2000 Va. Cir. LEXIS 271
CourtSuffolk County Circuit Court
DecidedMay 18, 2000
DocketCase Nos. CR99JF0174, -175, -192 through -203
StatusPublished

This text of 52 Va. Cir. 255 (Commonwealth v. Beverly) is published on Counsel Stack Legal Research, covering Suffolk County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Beverly, 52 Va. Cir. 255, 2000 Va. Cir. LEXIS 271 (Va. Super. Ct. 2000).

Opinion

By Judge D. Arthur Kelsey

The Commonwealth accuses Claude Bernard Beverly of multiple sexual offenses against his daughter, the complaining witness, in violation of Va. Code Ann. §§ 18.2-67.1,18.2-67.2,18.2-67.3, and 18.2-370.1 (Michie 1996 & Supp. 1999). The defendant has filed a pretrial in limine motion under the Virginia Rape Shield Law, Va. Code Ann. § 18.2-67.7, seeking leave to introduce at trial evidence of the alleged “unchaste character and prior sexual conduct” of the complaining witness. See Defendant’s Notice Pursuant to § 18.2-67.7 (March 21,2000). For the following reasons, the Court grants the motion in part and denies it in part.

I

The Commonwealth has charged the defendant with fourteen counts alleging sexual abuse of his minor daughter between Februaiy and July 1999. The defendant strenuously denies the charges, claiming each to be factually baseless. According to the defendant, his daughter has fabricated the entire story in retaliation for his paternal discipline of her for having consensual sex with a boy in a church parking lot in April or May 1999. See Transcript of Proceedings at 3-10 (May 12, 2000). After she allegedly admitted to this [256]*256indiscretion, the defendant asserts that she became “resentful” because he forbade her from going to any “nighttime church functions.” Id. at 9-10. His daughter later became pregnant and, under the defendant’s theoiy of the case, she “had to name somebody as the perpetrator of the pregnancy [so] she named her father as opposed to the person who had [sic] actually did get her pregnant.” Id. The defendant, however, concedes that his daughter’s pregnancy (according to the medical records) could not have occurred as a result of the specific sexual conduct with the boy in the church parking lot. See Defendant’s Memorandum at 3 (May 15,2000); Transcript of Proceedings at 5-8 (May 12, 2000). The defendant seeks to introduce into evidence a conversation he claims to have had with his daughter in which she admitted to the sexual tryst in the church parking lot. The daughter denies the conversation ever took place. The defendant argues that this evidence should be admissible on the merits despite the general rule, codified in the Rape Shield Law, forbidding evidence of the alleged victim’s prior sexual conduct. Upon clearing that hurdle, the defendant then argues that his proffered evidence also has immunity from the evidentiary rule prohibiting hearsay. For the following reasons, the Court agrees that the Rape Shield Law does not itself render the proffered evidence inadmissible. The Court disagrees, however, that the proffered evidence survives the hearsay rule. Though the daughter’s statements in the alleged conversation may qualify (assuming a proper foundation) as impeachment evidence, it cannot be admitted into the record as proof of the matter asserted.

The pretrial hearing, required by Va. Code § 18.2-67.7(C), took place on May 12, 2000. See Transcript of Proceedings (May 12,2000); cf. McNeil v. Commonwealth, 1994 WL 188213 (Va. App. May 17, 1994) (defendant waives evidentiary inclusion rules of the Rape Shield Law by failing to request a pretrial hearing under subsection C).

II

Before the enactment of the Rape Shield Law, Va. Code Ann. § 18.2-67.7, Virginia courts permitted defendants charged with rape to introduce evidence of the unchaste character of the prosecutrix on the ground that it was relevant to the consent defense. See Charles E. Friend, The Law of Evidence in Virginia, § 5-6, at 171 (5th ed. 1999). The defendant, however, could not offer in most cases evidence of specific sexual conduct between the alleged victim and others. Id. The 1981 enactment of the Rape Shield Law supplanted common law materiality principles with a four-tiered statutory matrix. See generally H. Lane Kneedler, Sexual Assault Law Reform in Virginia A [257]*257Legislative History, 68 Va. L. Rev. 459 (1982). It begins with the premise that evidence of the “general reputation or opinion evidence of the complaining witness’s unchaste character or prior sexual conduct shall not be admitted.” Va. Code Ann. § 18.2-67.7(A) (emphasis added). Absent the consent of the “complaining witness,” evidence of specific instances of her prior sexual conduct can be admitted only if it is “relevant” and meets one of four statutory exceptions. Id.

The first exception covers situations where the proffered evidence shows an “alternative explanation for physical evidence of the offense” which the prosecution intends to offer at trial. Va. Code Ann. § 18.2-67.7(A)(1). This exception applies when the Commonwealth asserts that the defendant’s semen was recovered from the alleged victim, or that intercourse with the defendant caused the victim to contract a disease, or to become pregnant, or to sustain a physical injury. Id. The exception, however, requires some causal nexus between the “alternative explanation” and the “physical evidence” allegedly implicating the defendant. See Thompson v. Commonwealth, 28 Va. App. 543, 546, 507 S.E.2d 110, 112 (1998) (evidence of prior consensual vaginal intercourse could not provide an alternative explanation for the presence of rectal scars allegedly caused by forcible anal sodomy).

The second exception deals only with “sexual conduct between the complaining witness and the accused.” Va. Code Ann. § 18.2-67.7(AX2). This prong of the statute codifies the common law rule permitting such evidence when relevant to the “contention that the alleged offense was not accomplished by force, threat or intimidation or through the use of the complaining witness’s mental incapacity or physical helplessness____” Id. Here too, the statute includes a causality analysis — only sexual conduct “within a period of time reasonably proximate to the offense charged” can be admitted. Id:, see League v. Commonwealth, 9 Va. App. 199, 385 S.E.2d 232 (1989), aff'd en banc, 10 Va. App. 428, 392 S.E.2d 510 (1990).

The third exception, another well-recognized common law principle, permits evidence of specific sexual conduct if “offered to rebut evidence of the complaining witness’s prior sexual conduct introduced by the prosecution.” Va. Code Ann. § 18.2-67.7(A)(3). If the Commonwealth opens the door to otherwise inadmissible evidence, the defendant may introduce contrary evidence over the prosecutor’s objection.

The first three exceptions to the general rule of inadmissibility have neatly compact principles to guide the analysis. The fourth exception, however, applies broadly to any relevant evidence offered to “show that the complaining witness had a motive to fabricate the charge against the accused.” Va. Code Ann. § 18.2-67.7(B). The breadth of this exception must be understood in [258]*258light of the considerable tension between statutory evidentiary exclusions and the accused’s constitutional protections — particularly his right under the Sixth Amendment of the U.S. Constitution to cross-examine his accusers, Clinebell v. Commonwealth, 235 Va. 319, 325, 368 S.E.2d 263, 266 (1988), and his right under the Virginia Constitution to “call for evidence in his favor,” Brown v. Commonwealth,

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Bluebook (online)
52 Va. Cir. 255, 2000 Va. Cir. LEXIS 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-beverly-vaccsuffolk-2000.