COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Duff and Overton Argued at Alexandria, Virginia
LAWRENCE P. MEDICI MEMORANDUM OPINION * BY v. Record No. 0527-98-4 JUDGE RICHARD S. BRAY MAY 25, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David T. Stitt, Judge
Jennifer A. Hess Smith, Assistant Public Defender, for appellant.
Daniel J. Munroe, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
A jury convicted Lawrence P. Medici (defendant) of rape,
second or subsequent offense, sodomy by cunnilingus, second
offense, sodomy by fellatio, second or subsequent offense, and
attempted anal sodomy. On appeal, defendant complains that the
trial court erroneously (1) permitted the Commonwealth to
introduce evidence of prior rape convictions, (2) refused to
permit a stipulation to such convictions, (3) denied a motion to
dismiss the indictment because it did not specify an offense,
(4) declined to strike two venirepersons for cause, (5) ruled
that Code § 18.2-67.5:3 was constitutional, (6) admitted
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. evidence previously ruled inadmissible, and (7) found the
evidence sufficient to support the sodomy by cunnilingus
conviction. Finding no error, we affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
The victim, Pauline Finn, was acquainted with defendant as
her supplier of illicit drugs. On the evening of May 21, 1997,
defendant telephoned Finn and advised that “he had an amazing
amount of cocaine . . . and . . . [she] should come over.” Finn
went to defendant’s home the following morning, was admitted by
defendant, and observed a mirror covered with white powder in
the basement area of the house. As Finn scrutinized the white
substance, defendant ordered that she remove her clothing. Finn
initially refused, but complied after noticing that defendant
was armed with a knife. Defendant subsequently forced Finn to
engage in fellatio, cunnilingus, and sexual intercourse, and
attempted anal sodomy. Finn immediately reported the incident
to her “high school guidance counselor,” and defendant was
subsequently charged and convicted for the instant offenses.
I.
Defendant first argues that, during the guilt phase of his
bifurcated trial, the trial court improperly admitted evidence
of prior rape convictions in California.
- 2 - Although . . . evidence of other crimes is inadmissible if relevant only to show a probability of guilt or a propensity for criminal conduct, evidence of other crimes “is properly received if it is relevant and probative of an issue on trial, such as an element of the offense charged or the required predicate for enhanced punishment.”
Berry v. Commonwealth, 22 Va. App. 209, 213, 468 S.E.2d 685, 687
(1996) (quoting Pittman v. Commonwealth, 17 Va. App. 33, 35, 434
S.E.2d 694, 695 (1993)). “A prior conviction is used for
‘sentence enhancement’ when it is admitted . . . during a trial
to convict a defendant of violating a ‘recidivist statute,’
i.e., a statute that criminalizes the commission of a successive
violation of a particular offense . . . .” Harris v.
Commonwealth, 26 Va. App. 794, 803, 496 S.E.2d 165, 169 (1998)
(citations omitted). “When sentence enhancement is an issue,
the Commonwealth has the burden of proving the existence of
defendant's prior, valid convictions . . . .” Id.
This Court has previously approved evidence of prior
convictions during the Commonwealth’s case-in-chief in
prosecutions under Code § 18.2-248 (second or subsequent offense
for manufacturing, selling, giving, distributing or possessing
with intent to manufacture, sell, give or distribute a
controlled substance), Code § 18.2-104 (second or subsequent
offense for misdemeanor larceny), and Code § 18.2-270 (second or
subsequent offense for driving while intoxicated). See Berry,
22 Va. App. at 213-14, 468 S.E.2d at 687 (Code § 18.2-248);
- 3 - Pittman, 17 Va. App. at 35, 434 S.E.2d at 695 (Code § 18.2-104);
Farmer v. Commonwealth, 10 Va. App. 175, 180-81, 390 S.E.2d 775,
777-78 (1990), aff’d en banc, 12 Va. App. 337, 404 S.E.2d 371
(1991) (Code § 18.2-270).
Code § 18.2-67.5:3 prescribes an enhanced punishment for
subsequent convictions of certain felonious sexual assault
offenses, including rape. Thus, evidence of a prior conviction
was necessary to prove the subject rape as a subsequent offense,
and, therefore, properly admitted during the guilt phase of
trial. To protect defendant from any attendant prejudice, the
court appropriately instructed the jury not to consider the
prior convictions as evidence that defendant committed the
instant offense.
Defendant further argues that the prior rape convictions
were inadmissible because the California statute is not
“substantially similar” to Code § 18.2-61. See Code
§ 18.2-67.5:3 1 ; Cox v. Commonwealth, 13 Va. App. 328, 329-31, 411
S.E.2d 444, 445-46 (1991). In support of his assertion, he
notes that Calf. Code § 261 criminalizes a range of conduct,
including acts that are not violations of Virginia law.
The record discloses that the prior convictions in issue
resulted from rapes in violation of Calf. Code § 261(2), which
1 Code § 18.2-67.5:3(C) provides that, “[f]or purposes of this section, prior convictions shall include (i) adult convictions for felonies under the laws of any state or the United States that are substantially similar to those listed in
- 4 - prohibits “an act of sexual intercourse accomplished with a
person not the spouse of the perpetrator, . . . (2) [w]here it
is accomplished against a person’s will by means of force or
fear of immediate and unlawful bodily injury on the person of
another.” Virginia Code § 18.2-61 provides, in pertinent part,
that “[i]f any person has sexual intercourse with a complaining
witness who is not his or her spouse . . . and such act is
accomplished (i) against the complaining witness’s will, by
force, threat or intimidation of or against the complaining
witness or another person, . . . he or she shall be guilty of
rape.”
We acknowledge that the Calf. Code § 261 proscribes acts
not embraced by Virginia’s statute; however, “‘only that
prohibition of the other state’s law under which the person was
convicted must substantially conform [to Code § 18.2-61].’”
Honaker v. Commonwealth, 19 Va. App. 682, 684, 454 S.E.2d 29, 30
(1995) (quoting Cox, 13 Va. App. at 331, 411 S.E.2d at 446).
Clearly, the specific California convictions before the court
resulted from violations of a statute that substantially
conforms to Code § 18.2-61, and, therefore, provided a proper
predicate to the instant conviction for rape as a second or
subsequent offense.
subsection B.”
- 5 - Defendant also argues that the prior rape convictions were
inadmissible because the attendant orders were not properly
authenticated. In support of his contention, defendant relies
upon Carroll v. Commonwealth, which held an order not properly
authenticated because there was no evidence that the person
attesting was “authorized by law to act in the place of the
clerk.” 2 10 Va. App. 686, 691, 396 S.E.2d 137, 139 (1990).
Here, defendant’s prior convictions carried a stamp:
“Allen Slater, Executive Officer and Clerk of the Superior Court
of the State of California, in and for the County of Orange.”
The order was impressed with the Orange County Superior Court
seal, and the signature of Flora L. Perez appears in a space
designated “Deputy.” Thus, “‘it plainly can be gathered from
the . . . attestation . . . that [Ms. Perez] is the deputy clerk
of [Orange] county, authorized by law to act in place of [her]
principal,’” properly authenticating the document. Id. at 690,
396 S.E.2d at 139-40 (quoting Hurley v. Charles, 112 Va. 706,
710, 72 S.E. 689, 690-91 (1911)).
2 In Carroll, the order contained the following:
A COPY TESTE: WALTON F. MITCHELL, JR., CLERK CRAIG COUNTY CIRCUIT COURT BY /s/ Peggy B. Elmore
10 Va. App. at 688, 396 S.E.2d at 138.
- 6 - II.
Defendant next complains that the trial court erred in
refusing to accept his offer to stipulate to the prior
convictions, if convicted, during the sentencing phase of trial.
However, it is well settled that the Commonwealth “is not
obliged to enter into an agreement whereby it is precluded from
putting on its evidence simply because the defendant is willing
to make a qualified stipulation.” Glover v. Commonwealth, 3 Va.
App. 152, 162, 348 S.E.2d 434, 441 (1986), aff’d, 236 Va. 1, 372
S.E.2d 134 (1988); see Spencer v. Commonwealth, 240 Va. 78, 91,
393 S.E.2d 609, 617 (“A defendant in a criminal case may not
preclude the Commonwealth from introducing otherwise admissible
evidence by offering to stipulate the facts which the evidence
would show.”), cert. denied, 498 U.S. 908 (1990).
III.
Defendant argues that the trial court erred in refusing to
set aside the verdict because the indictment failed “to set
forth a crime” in Virginia. However, defendant first raised
this issue after the jury had rendered the verdict. Defendant
was clearly apprised of the cause and nature of the offense,
raised a vigorous defense at trial, and fully addressed the
relevant issues. However, defendant failed to challenge the
form or validity of the indictment, or any attendant defect or
omission, prior to verdict. He, therefore, “waived his right to
be more fully advised of ‘the cause and nature of his
- 7 - accusation,’” and the trial court did not err in denying the
motion. McDougal v. Commonwealth, 212 Va. 547, 549, 186 S.E.2d
18, 20 (1972) (citation omitted).
IV.
Defendant next assigns error to the trial court’s refusal
to strike jurors Bennett and Lundquist for cause.
“The right to a trial by an impartial jury is guaranteed
. . . .” Gosling v. Commonwealth, 7 Va. App. 642, 645, 376
S.E.2d 541, 543 (1989) (citations omitted). “Through voir dire
and other competent evidence, the trial court must examine the
venirepersons for signs of a mind set that would prevent or
substantially impair the performance of the duties of a juror in
accordance with his instructions and his oath.” Swanson v.
Commonwealth, 18 Va. App. 182, 185, 442 S.E.2d 702, 704 (1994)
(citation and internal quotations omitted).
“The partiality or impartiality of an individual juror is a
factual issue best determined by the trial court.” Watkins v.
Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985)
(citation omitted), cert. denied, 475 U.S. 1099 (1986).
“Because the trial judge has the opportunity . . . to observe
and evaluate the apparent sincerity, conscientiousness,
intelligence, and demeanor of prospective jurors first hand, the
trial court’s exercise of judicial discretion in deciding
challenges for cause will not be disturbed on appeal,” absent
manifest error. Pope v. Commonwealth, 234 Va. 114, 123-24, 360
- 8 - S.E.2d 352, 358 (1987) (citation omitted), cert. denied, 485
U.S. 1015 (1988). Thus, “we must consider the ‘voir dire as a
whole, . . .’ according the appropriate ‘deference to the trial
court’s decision.’” Swanson, 18 Va. App. at 186, 442 S.E.2d at
704 (citations omitted).
During voir dire, defense counsel inquired of the venire
“whether any of you, or your close friends, or relatives, have
been the victim of a crime.” After Ms. Bennett responded that
her husband had been murdered, counsel proffered that the
suspect in the murder was represented by the Public Defender’s
Office, also counsel for defendant, and moved to strike her for
cause.
However, in response to further inquiry by the
Commonwealth, Ms. Bennett assured that she could set aside
issues relating to the murder when hearing the evidence in the
instant prosecution, would not be influenced by the role of the
Public Defender, and could be fair and impartial, guided by the
evidence and instructions. Noting that Ms. Bennett “was very
adamant that she could be objective in this case,” the court
denied defendant’s motion to strike her for cause, a decision
supported by the record.
Mr. Lundquist, also challenged by defendant, responded
affirmatively on voir dire when defendant asked, “Do you think
that if you heard testimony from a Police Officer that you think
he would be more credible, or more believable, simply because he
- 9 - is a Police Officer?” During further questioning, counsel read
a jury instruction to Mr. Lundquist, which addressed the jury’s
role in assessing “the facts, the credibility of the witnesses,
and the weight of the evidence,” and Mr. Lundquist responded,
“See, all that gobble-de-gook; the Police Officer would have
higher credibility, I suppose, based on his title and role,”
prompting counsel’s motion to strike Mr. Lundquist for cause.
However, when examined by the court to clarify his responses,
Mr. Lundquist explained that his comments simply recognized a
police officer as a “trained observer,” without attributing
greater “credibility” to such testimony.
The trial court denied defendant’s motion to strike Mr.
Lundquist, commenting that,
I think once we got the semantics straightened out about what we were talking about, I think he was talking about what Police Officers are trained observers, and he flat out said that he could put Police Officers and lay witnesses on an even footing in terms of credibility, and even thought that Police Officers could be untruthful.
We recognize that, “[a]lthough jurors have a right and a
duty to determine the credibility of witnesses in a particular
case, giving unqualified credence to the testimony of a law
enforcement officer based solely on the officer’s official
status constitutes impermissible bias.” Gosling, 7 Va. App. at
645, 376 S.E.2d at 544 (citing Mullis v. Commonwealth, 3 Va.
App. 564, 571, 351 S.E.2d 919, 923 (1987)). Here, however, the
- 10 - record, viewed in its entirety, clearly establishes that Mr.
Lundquist was a conscientious and attentive juror, fully aware
of his attendant duties and responsibilities and not predisposed
to give unqualified credence to the testimony of a law
enforcement officer. Upon clarification, it became apparent
that Mr. Lundquist confused credibility and truthfulness with
the weight to be accorded testimony. His responses confirmed
that he would properly consider the testimony of police officers
and lay witnesses “on an even footing.” Thus, the trial court
did not abuse its discretion in denying the motion.
V.
Defendant argues that the mandatory life sentence imposed
by Code § 18.2-67.5:3 is unconstitutional.
“In assessing the constitutionality of a statute or
ordinance, courts must presume that the legislative action is
valid. Consequently, the burden is on the challenger to
demonstrate the constitutional defect.” Coleman v.
Commonwealth, 5 Va. App. 459, 462, 364 S.E.2d 239, 241 (citation
omitted), reh’g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988).
The Commonwealth “is allowed discretion in formulating its own
legislative policies regarding the appropriate punishment for
offenses.” Wolkind v. Selph, 473 F. Supp. 675, 679 (E.D. Va.
1979), aff’d, 649 F.2d 865 (4th Cir. 1981); see Rummel v.
Estelle, 445 U.S. 263, 274 (1980) (acknowledging reluctance to
review legislatively mandated terms of imprisonment). “[O]nly
- 11 - where the sentence petitioner has been required to serve is so
grossly disproportionate to the offense committed as to shock
the conscience of the Court will it be struck down as
unconstitutional.” Wolkind, 473 F. Supp. at 679; see Harmelin
v. Michigan, 501 U.S. 957, 1001 (1991) (concurring opinion of
Kennedy, J.) (Eighth Amendment “forbids only extreme sentences
that are ‘grossly disproportionate’ to the crime”).
The offenses specified in Code § 18.2-67.5:3 involve second
or subsequent offenses of violent sexual assault, including
rape. We cannot conclude that the mandatory life sentence
imposed by Code § 18.2-67.5:3 for a second or subsequent
commission of such vile crimes is “grossly disproportionate” to
the offense. See Harmelin, 501 U.S. at 994 (concluding that a
mandatory life sentence is not unconstitutionally
disproportionate to a first-time felony drug offense).
VI.
Defendant also argues that the trial court erroneously
admitted evidence of a taped conversation between defendant and
Finn, the victim, after ruling it inadmissible during a pretrial
motion in limine. The Commonwealth counters that defendant
“opened the door” to the taped conversation by reference to it
on cross-examination of the victim.
“The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion.”
- 12 - Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1988) (citation omitted). “‘Cross-examination on a part of a
transaction enables the opposing party to elicit evidence on
redirect examination of the whole transaction at least to the
extent that it relates to the same subject.’” Briley v.
Commonwealth, 221 Va. 532, 540, 273 S.E.2d 48, 53 (1980)
(citation omitted), cert. denied, 451 U.S. 1031 (1981); see
Lockhart v. Commonwealth, 251 Va. 184, 184, 466 S.E.2d 740, 740
(1996).
Defense counsel asked Finn several questions pertaining to
her statements during the taped conversation, without explaining
the circumstances. Defendant’s inquiries included:
So, you weren’t angry when you said, “Well, then you must be pretty f--- up, that must be some good God damn good baking soda. Let’s see does it dissolve in any way shape or form? Tastes like absolutely nothing at all. It was chalk dust.” You weren’t mad when you said that?
Finn answered, “Of course I had to pretend like I was mad
because I couldn’t let him know that the cops were listening on
the phone.” Clearly, defendant pursued such evidence to
discredit the victim, a circumstance that permitted the
Commonwealth to rebut with introduction of the tape itself.
Defendant’s complaint that the evidence upset his defense
“strategy,” developed in reliance upon the court’s prior ruling
to exclude the tape, is without merit. In answer to this
argument below, the trial court offered defendant the
- 13 - opportunity to recall the victim and undertake further
examination of the witness, thereby remediating any prejudice to
defendant’s strategy. Moreover, the tape was relevant and
material because defendant admitted certain acts subject to the
instant prosecution.
Under such circumstances, the court correctly admitted the
tape into evidence.
VII.
Finally, defendant argues that the evidence was
insufficient to convict him of sodomy by cunnilingus, a
violation of Code § 18.2-67.1. When the sufficiency of the
evidence is challenged on appeal, we must review the evidence in
the light most favorable to the Commonwealth, disturbing a
jury’s verdict only if plainly wrong or without evidence to
support it. See Code § 8.01-680; Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
“‘Penetration is an essential element of the crime of
sodomy[;]’ [h]owever, . . . the penetration ‘need only be
slight.’” Horton v. Commonwealth, 255 Va. 606, 612, 499 S.E.2d
258, 261 (1998) (citations omitted). “‘[P]enetration of any
portion of the vulva, which encompasses the “external parts of
the female sex organs considered as a whole” and includes,
beginning with the outermost parts, the labia majora, labia
minora, hymen, vaginal opening and vagina is sufficient’ to
establish the element of penetration.” Moore v. Commonwealth,
- 14 - 254 Va. 184, 190, 491 S.E.2d 739, 742 (1997) (quoting Love v.
Commonwealth, 18 Va. App. 84, 88, 441 S.E.2d 709, 712 (1994)).
“‘Penetration of the vaginal opening . . . clearly [is] not
required.’” Jett v. Commonwealth, 29 Va. App. 190, 195, 510
S.E.2d 747, 749 (1999) (en banc) (citation omitted) (alterations
in original).
Evidence that defendant licked the victim’s vagina is
sufficient to establish penetration of the vulva or outermost
portion of the genitalia, an act of sodomy by cunnilingus in
violation of Code § 18.2-67.1. See Horton, 255 Va. at 613-14,
499 S.E.2d at 261-62; Ryan v. Commonwealth, 219 Va. 439, 441,
444, 247 S.E.2d 698, 700, 702 (1978). Finn testified that
defendant “started on [her,] . . . [when] [h]e put his mouth on
[her] vagina, [h]e was licking around and touching.” Thus, her
testimony was sufficient to support defendant’s conviction for
sodomy by cunnilingus.
Accordingly, we affirm the convictions.
Affirmed.
- 15 -