Carolino v. Commonwealth
| Docket Number | 1270-21-1 |
| Decision Date | 28 November 2023 |
| Parties | PATRICK AUSTIN CAROLINO v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
1
PATRICK AUSTIN CAROLINO
v.
COMMONWEALTH OF VIRGINIA
No. 1270-21-1
Court of Appeals of Virginia
November 28, 2023
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Leslie L. Lilley, Judge
Richard C. Clark, Senior Assistant Public Defender, for appellant.
Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White Argued at Richmond, Virginia
UPON A REHEARING EN BANC
OPINION
FRANK K. FRIEDMAN, JUDGE
This case involves an alleged physical attack at the end of a somewhat stormy romantic relationship. The appeal focuses on whether a prior alleged incident of physical abuse earlier in the relationship was admissible and relevant to shed light on the later attack.
Patrick Austin Carolino was convicted in the Virginia Beach Circuit Court on one count of strangulation, in violation of Code § 18.2-51.6. On appeal, Carolino argues that the trial court erred in admitting evidence pertaining to a prior bad act that occurred between him and the victim, and he asserts that the evidence was insufficient to prove the offense. A panel majority of this Court reversed the trial court's ruling regarding the admissibility of the contested evidence and remanded Carolino's conviction. We then granted a petition for rehearing en banc at the Commonwealth's request. Upon rehearing en banc, we again reverse the trial court's evidentiary ruling and remand the case for retrial, if the Commonwealth be so advised.
BACKGROUND
The Commonwealth's Evidence
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). "That principle requires us to 'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.'" Clanton v. Commonwealth, 53 Va.App. 561, 564 (2009) (en banc) (quoting Kelly v. Commonwealth, 41 Va.App. 250, 254 (2003) (en banc)).
So viewed, the evidence established that Carolino and Ford were in a romantic relationship beginning in April 2018 and ending in May 2019. Carolino and Ford lived together from May 2018 until February 2019. On April 15, 2019, the two went out to dinner and began to argue. After dinner, Ford drove to the condo that Carolino shared with a friend, Robert Mendez, and they both went to Carolino's bedroom. Ford was on the bed as they continued to argue, and she told Carolino she felt hopeless about their relationship. She claims Carolino got onto the bed with her and put his hand around her neck. With his other hand, Carolino pressed onto the back of her head "pushing it into the ground." Ford struggled to breathe and asked Carolino to stop. She thought she might pass out or die. As Carolino continued to apply pressure to Ford's neck, he asked, "do you see what it feels like to die?" Ford could not breathe for approximately fifteen to twenty-five seconds. She felt pressure in her head and had spotted vision, but she did not lose consciousness.
After the incident, Ford stayed with Carolino overnight and did not end their relationship. She did not report the incident to the police until a month later. Ford explained that she delayed reporting the strangulation to police because she still cared for Carolino. But she also "was scared to report anything."
The morning after the incident, Ford noticed that she had popped blood vessels in her eye and photographed her injuries. These photos were later introduced into evidence at trial. Ford also noticed that her neck was tender and her throat was sore. She had difficulty swallowing, and her voice was affected. Ford went to work and discussed the incident with her manager, who testified that on the day after the incident Ford was "visibly distraught" and her eyes were red "like the blood vessels had been popped."
Mendez was Carolino's roommate between February and April of 2019. Mendez testified that, at the time of the incident, Ford's eyes "looked as if they were allergies or bloodshot, maybe a broken blood vessel." When he asked her about it, she told him she had allergies. Mendez also noted that Carolino told him, around this general time frame, that Ford would know how to respond in self-defense if she were ever placed in a chokehold.[1]
Ford ultimately disclosed the choking incident to Carolino's probation officer on May 17, 2019. She had already called the officer several times after the break-up to report Carolino for violating his probation generally; however, after she met the probation officer in person, Ford reported the choking incident.
Jennifer Knowlton, a sexual assault nurse examiner with Chesapeake Forensic Specialists, was qualified as an expert in "the signs and symptoms of strangulation." Knowlton testified that some of the typical signs and symptoms of strangulation are soreness in the neck area, pain or difficulty swallowing, and petechia and subconjunctival hemorrhages in the eyes. On cross-examination, Knowlton acknowledged that other things could cause such symptoms, such as reactions to medications, excessive coughing, and rubbing one's eyes to alleviate allergies. Knowlton did not personally treat Ford for her injuries.
Carolino's Version of Events and Attack on Ford's Credibility
After the Commonwealth rested its case, Carolino made a motion to strike, arguing that Ford's testimony was unreliable. Carolino pointed out that Ford waited a month before she reported the incident, and he asserted that she was biased because she was upset that he was seeing other women. He also noted inconsistencies in her testimony. The trial court denied the motion to strike.
Carolino testified that on the night of the offense he and Ford argued about the fact that he was seeing other women. He explained that when they returned to his condo, she "begged" to come inside with him. Carolino stated that Ford spent the night, but he said they did not fight. Indeed, he testified that they had sex in the evening and again in the morning and then did yoga together. Carolino denied strangling Ford or putting her in a chokehold to teach her self-defense. Carolino said Ford continued to contact him after that night and repeatedly tried to interfere with his other relationships. Carolino admitted that he had two prior felony convictions.
The Whipping Incident
Carolino testified in his own defense and denied that the strangulation incident occurred. On cross-examination, he was asked:
Q Ms. Ford -- have you ever -- you said you didn't choke her. Have you ever been physical with her
A Aggressively physical, no. Sexually, sure. Yes.
Q Okay. Never been aggressively physical with her?
The Commonwealth then cross-examined Carolino about a prior incident between him and Ford. Carolino explained that on a prior occasion, Ford had asked to be whipped as part of a sexual act. He stated: "I've never aggressively assaulted [Ford]. I've never -- I've never done anything to [her] that she didn't ask me to do or did not want me to do."
The Commonwealth then called Ford as a rebuttal witness. Over Carolino's strenuous objection, Ford testified that Carolino had beaten her with a belt in the summer of 2018 after
learning that she had slept with someone else. Ford admitted multiple times that she told a detective that she "allowed" or "gave" "permission" to Carolino to administer the whipping.
Q And didn't you tell the officer that you sort of gave him permission [for the whipping]?
A I did tell her that.
....
THE COURT: You have to - you have to speak up.
THE WITNESS: Yes. I told her that I had allowed him to do it.
However, upon questioning from the trial judge, she also testified that she did not, in fact, consent to the beating in her own mind. Instead, Ford explained that she resigned herself to Carolino's insistence that he wanted to hurt her for her infidelity. Ford stated, "I did allow him. I was intimidated by him because he had expressed to me repeatedly that he wanted to hurt me. And I just . . . didn't want to have to wait and see when he was going to do it." There was no indication that Ford reported the whipping to anyone when it occurred in 2018.
The Commonwealth argued the extrinsic rebuttal evidence was admissible to impeach Carolino's credibility. In admitting the evidence the trial court stated: "He's just testified that he's never -- he's never been physical with her.... I'm going to allow it. I'll overrule the objection." Over Carolino's objection, the trial court also allowed the Commonwealth to introduce graphic photographs of injuries Ford sustained in the whipping incident.[2]
The Trial Judge, as Factfinder, Convicts Carolino of Strangulation and Places Significant Emphasis on the Disputed Evidence in Reaching His Decision
After the defense rested, Carolino renewed his motion to strike and presented closing argument, again emphasizing that Ford waited over a month to report the choking incident to police
and maintaining that she was not a credible witness. The trial court convicted Carolino of strangulation. In so ruling, the trial court specifically relied upon the prior bad act evidence as a central basis for the conviction. The court noted that this evidence "really had an impact on the court as far as credibility goes."
Carolino Appeals
Carolino appealed his conviction, and in an unpublished decision, a panel majority of this Court concluded that the trial court erred in admitting collateral propensity evidence of the prior whipping...
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