Latovia Joel Whitehead v. Commonwealth

Opinion

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

- 2 - 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

- 3 - 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.

- 4 - 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).

- 5 - Accordingly, appellant's conviction is affirmed.

Affirmed.

- 6 -