Abunaaj v. Com.

• Decision Date: 21 July 1998
• Docket Number: Record No. 1854-97-4.
• Citation: Abunaaj v. Com., 502 S.E.2d 135, 28 Va.App. 47 (Va. App. 1998)
• Court: Virginia Court of Appeals
• Parties: Yazid ABUNAAJ v. COMMONWEALTH of Virginia.

502 S.E.2d 135

28 Va. App. 47

Yazid ABUNAAJ v. COMMONWEALTH of Virginia.

Record No. 1854-97-4.

Court of Appeals of Virginia, Alexandria.

July 21, 1998.

Jonathan Shapiro, Alexandria, for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BENTON, J., and DUFF, Senior Judge.

FITZPATRICK, Chief Judge.

Yazid Abunaaj (appellant) was convicted in a jury trial of rape in violation of Code § 18.2-61 and animate object sexual penetration in violation of Code § 18.2-67.2. On appeal, he contends the trial court erred in: (1) admitting a tape recording of a telephone conversation he had with the victim; (2) giving insufficient cautionary instructions and rulings regarding alleged pretrial offers of payment to potential witnesses; (3) allowing testimony that appellant was HIV-positive; and (4) refusing to grant surrebuttal testimony. For the following reasons, we reverse the convictions.

I. Background

"[W]e review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Pavlick v. Commonwealth, 25 Va.App. 538, 541, 489 S.E.2d 720, 721 (1997), aff'd, 27 Va.App. 219, 497 S.E.2d 920 (1998) (en banc). Appellant and the victim, D.T., worked at adjoining businesses in a shopping mall. They met on March 28, 1996, when D.T. and her husband had their hair cut at appellant's workplace. D.T. knew appellant by sight but denied the existence of a closer relationship prior to that date.

On April 2, 1996, D.T. and appellant met after work and spent thirty to forty-five minutes parked in his car. D.T. testified that during their conversation appellant expressed an interest in a relationship with her but she refused, saying they could be friends. She further testified that appellant did not kiss her or touch her while they were talking in the car. Appellant testified that he and D.T. engaged in intimate kissing and touching while in the car, and they attempted, but did not complete, sexual intercourse. When D.T. returned home that evening she did not tell her husband of her meeting with appellant.

The next morning, April 3, 1996, D.T. went to work, but, due to a scheduling mix-up, another employee, Hong Nguyen, was also present. They decided that Nguyen would work the morning shift and D.T. would work in the afternoon. After she left the store, D.T. saw appellant in the mall and agreed to go to lunch with him. When they left for lunch, appellant said he had to stop by his house to retrieve something, and they drove to his home in Arlington.

Appellant showed D.T. around the house, and when they reached his bedroom he began to make advances toward her and kiss her. She said, "No, I told you we were going to lunch." He relented and asked her to look at pictures while he completed a few chores. Appellant left the room for a moment and when he returned he pushed D.T. down on the bed and tried to kiss her. She told him no, but "he wouldn't leave me alone." She testified, "I wanted to leave but he wouldn't let me go." She resisted as he attempted to remove her clothing. They struggled "for quite a while," until appellant pinned D.T. on her stomach, removed his pants and her underpants, and penetrated her vagina with his finger and his penis. When he was done, he got up "as if nothing had happened" and suggested they shower together.

While appellant showered, D.T. dressed and left appellant's house in tears. She used the phone at a service station two blocks away to call a cab. The cab took her to the shopping mall, where she stopped at an ATM for the fare and drove home. When D.T. arrived at home she called Nguyen and asked Nguyen to cover her shift that afternoon. Throughout the afternoon and evening appellant stopped in and phoned the store, asking about "the girl."

Later, D.T. informed her husband of the attack and reported the rape. The police photographed bruises on her arm and sent her to the hospital for an examination. Officer Kevin White saw "visually obvious" developing bruises on both of D.T.'s forearms in the "wrist area."

At trial, the defense called eight witnesses who testified that appellant and D.T. had friendly contact at the mall. In his own defense, appellant testified that D.T. had consented to have intercourse. The Commonwealth put on rebuttal evidence, much of which was admitted over defense objection. The contested evidence included a tape recorded conversation between appellant and D.T. the day after the incident and testimony from Mark Wright, an inmate in jail with appellant, regarding appellant's HIV status. The trial court denied appellant's request to put on surrebuttal evidence in response to the tape recording and Wright's testimony.

II. Tape Recording

The Commonwealth cross-examined appellant about a telephone conversation he had with D.T. the day after the incident. Appellant testified that he remembered the conversation but could not recall specifics. He denied apologizing to D.T. for not letting her leave his house and denied saying he had lost control.

On rebuttal, the Commonwealth produced a tape recording of the conversation, revealing that the day following the incident, at the request of the police, D.T. had initiated telephone contact with appellant from police headquarters. D.T. testified that Detective Chase told her to tell appellant she had said, "no." Police officers recorded the call on police equipment and were present in the room with D.T. during the entire conversation, part of which took place on a speaker phone. Appellant objected to the admission of the tape on the ground it had not been disclosed to the defense pursuant to his discovery request. The trial court overruled appellant's objection and denied his request to review the tape prior to its introduction into evidence.

The Commonwealth played the tape and distributed transcripts to the jury. On the tape, appellant made the following statements: "I know. I know you didn't want to do it. I don't know why. I know I've been stupid, a little bit." In response to D.T.'s statement that she could not understand his behavior, appellant said: "Okay. I've been crazy. I've been stupid. I've been, I make a mistake. I make a mistake. Now, I'm sorry about it. I'll try to do my best to prove I'm not that way. I just lost my control for, I don't know."

Appellant contends the Commonwealth's failure to disclose the existence of the tape and its contents violated its obligation under the parties' consent discovery order to turn over all recorded statements made to law enforcement officers. We agree.

The parties' consent discovery order, entered July 24, 1996, was a limited version of Rule 3A:11.¹ The order provided for inspection of "[a]ll written or recorded statements or confessions made by the accused to law enforcement officers, or copies thereof, or the substance of any oral confessions or oral statements made by the accused to any law enforcement officer." (Emphasis added). Appellant's trial counsel agreed to the limited form of the order in response to the prosecutor's assurance of "open file" discovery. This Court has held that a consent discovery order, rather than Rule 3A:11, will govern discovery in a criminal case when such an order is in place. See Williams v. Commonwealth, 16 Va.App. 928, 934-35, 434 S.E.2d 343, 347 (1993) (enforcing consent discovery order identical in relevant part to the instant order).²

By means of the consent discovery order and a separate letter restricting its "open file" policy to evidence to be used during its case-in-chief, the Commonwealth limited its disclosure obligation. Assuming without deciding that the Commonwealth's procedure effectively fulfilled its duty to disclose, see United States v. Brodie, 871 F.2d 125 (D.C.Cir.1989) (pretrial disclosure under Federal Rule of Criminal Procedure 16 applies to statements of the defendant to be used in impeachment as well as case-in-chief); United States v. Scafe, 822 F.2d 928, 935 (10th Cir.1987) (Rule 16(a)(1)(A) is not restricted to statements to be used in the case-in-chief, it applies to "relevant written or recorded statements made by the defendant" irrespective of their intended use); United States v. Caldwell, 543 F.2d 1333 (D.C.Cir.1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (applying federal disclosure rules to statements made to third parties as well as to agents of the government), we consider whether the Commonwealth's failure to disclose the recorded conversation violated the terms of the consent discovery order.

The consent discovery order required disclosure of all recorded statements of the accused "made to law enforcement officers." Under the circumstances of this case, the recorded statements were effectively made to the police. D.T. called appellant from the police station on a police speaker phone. The police initiated the contact and recorded the call on their equipment. Police officers coached D.T. on what to say and were present in the room at the time of the call. Although appellant was speaking to the victim, these facts demonstrate police involvement to such a degree that appellant's statements were effectively made to the police as well.

Additionally, D.T.'s compliance with police requests effectively made her an agent of the police. D.T. initiated telephone contact with appellant because a police officer told her it would be in her best interests. She phoned from the police station and allowed the call to be recorded on police equipment for the same reason. She lied to appellant and told him she was calling from home to avoid revealing her location. She followed a detective's instructions and told appellant she said "no" to his advances. Because appellant's statements were made directly to an agent of the police who was in the presence of police officers, and they were recorded on police equipment, the tape of the...