Carpenter v. Com.

• Decision Date: 27 December 2007
• Docket Number: Record No. 1376-06-2.
• Citation: Carpenter v. Com., 654 S.E.2d 345, 51 Va. App. 84 (Va. App. 2007)
• Parties: John Welford CARPENTER, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

654 S.E.2d 345

51 Va. App. 84

John Welford CARPENTER, Jr. v.COMMONWEALTH of Virginia.

Record No. 1376-06-2.

Court of Appeals of Virginia, Richmond.

December 27, 2007.

(Michael T. Hemenway, on brief), Charlottesville, for appellant. Appellant submitting on brief.

Karri B. Atwood, Assistant Attorney General(Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: CLEMENTS, HALEY and BEALES, JJ.

JAMES W. HALEY, JR., Judge.

John Welford Carpenter, Jr.("appellant") appeals his convictions for rape and forcible sodomy.He appeals two decisions of the trial court.At his trial, the prosecution introduced into evidence testimony of appellant's spouse and a tape recording of a conversation between appellant and his spouse.There is no dispute that the admission of both pieces of evidence violated the provisions of the evidentiary privilege preventing the disclosure of certain confidential marital communications (Code§ 19.2-271.2andCode§ 8.01-398) effective at the time of the communication and tape recording.However, the evidence did not violate the amended statutory language effective at the time of appellant's trial.Appellant argues that the trial court erred in admitting this evidence.Appellant also contends that the trial court erred in finding the evidence sufficient for his convictions.We disagree, and affirm the judgment of the trial court.

FACTS

Appellant was found guilty after a bench trial on January 19, 2006.The evidence at trial, in the light most favorable to the Commonwealth, involved three incidents of sexual assault by the defendant on his stepdaughter.

In the summer of 1992, appellant's teenage stepdaughter lived with her mother and appellant.One morning, appellant entered her bedroom, pulled her out of bed by her arm, and had sexual intercourse with her on the floor.Appellant told the victim not to tell anyone about what had happened or he would kill her mother.

In the evening, about two or three months later, appellant again came to his stepdaughter's bedroom.He pushed her onto the bed, took off her shorts, placed his mouth on her vagina, and engaged in oral sex.After that, appellant masturbated and left the room.

On a summer evening in 1993, appellant went to his stepdaughter's bedroom once again.He pushed her onto the bed, took her pants off, and had sexual intercourse with her.After he was finished, appellant told her not to tell her boyfriend or anyone else, or else he would kill her mother.

Eleven years later, on October 14, 2004, the victim's mother, Helen Carpenter, was still married to appellant.She discovered a check that he had written to her daughter.The check made her suspicious; so she called her daughter and discussed the matter with her.Her daughter told her what had happened years before.Ms. Carpenter then confronted appellant, told him that he had raped her daughter, and asked him to move out of their house.When his wife accused him of the rape, appellant started crying and told her that it had not been easy for him to live with what had happened.

Ms. Carpenter called the police and spoke to Investigator Leslie Cash of the Greene County Sheriff's Office.They planned that Ms. Carpenter would engage her husband in conversation near a hidden tape-recorder, hoping to obtain a confession.On December 14, 2004, Ms. Carpenter purchased a tape recorder, invited her husband to her house, and turned on the tape recorder just before appellant came inside.Their subsequent conversation was preserved on the tape and included a number of incriminating statements by appellant.Specifically, appellant said, "Lord, please forgive me for raping [the victim]," and "Helen, please forgive me."Ms. Carpenter gave the tape to Investigator Cash.

On the day of the tape recording, the only limitation on the privilege of a spouse to refuse to disclose or prevent someone else from disclosing private marital communications was that the privilege did not apply "in those instances where the law of this Commonwealth confers upon a spouse the right of action against the other spouse."Code§ 8.01-398(1977), amended by2005 Va. Acts, ch. 809.At the same time the statute governing the admission of the testimony of husband and wife in a criminal case made such testimony "subject to the exception stated in Code§ 8.01-398."Code§ 19.2-271.2(1995), amended by2005 Va. Acts, ch. 809.

On July 1, 2005, after the tape recording of the Carpenters' conversation but before appellant's rape trial, amendments to Code§ 19.2-271.2andCode§ 8.01-398 became effective.These amendments restrict the application of Virginia's confidential marital communications evidentiary privilege.The legislature added the following language: "This privilege may not be asserted in any proceeding in which the spouses are adverse parties, or in which either spouse is charged with a crime or tort against the person or property of the other or against the minor child of either spouse."Code§ 8.01-398(as amended).The legislature also removed the portion of Code§ 19.2-271.2 which had previously made the testimony of a husband or wife in a criminal case subject to the exceptions stated in Code§ 8.01-398.Code§ 19.2-271.2(as amended).Both before and after the amendment, Code§ 19.2-271.2 included the language: "but neither shall be compelled to be called as a witness against the other except (i) in the case of a prosecution for an offense committed . . . against the minor child of either. . . ."¹The trial court applied the amended provisions of the marital communications statutes to appellant's trial of January 19, 2006² and admitted into evidence the tape recording and Ms. Carpenter's testimony regarding her husband's confession.

ANALYSIS

(A) Ex Post Facto Clause

Appellant argues that the trial court's retroactive application of Virginia's marital communications privilege exceptions to his case violated the ex post facto clauses of the United States and Virginia Constitutions.The types of laws forbidden by the Ex Post Facto Clause were defined by Justice Chase in Calder v. Bull,3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648(1798).

1st.Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d.Every law that aggravates a crime or makes it greater than it was when committed. 3d.Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th.Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence [sic], in order to convict the offender.

Id. at 390.The United States Supreme Court has since determined that laws that do not fit into any of Justice Chase's four categories are not forbidden by the Ex Post Facto Clause.Collins v. Youngblood,497 U.S. 37, 46, 110 S.Ct. 2715, 2721, 111 L.Ed.2d 30(1990);Carmell v. Texas,529 U.S. 513, 539, 120 S.Ct. 1620, 1636, 146 L.Ed.2d 577(2000);Stogner v. California,539 U.S. 607, 611, 123 S.Ct. 2446, 2449-50, 156 L.Ed.2d 544(2003).

Citing Carmell and Stogner, appellant argues that the marital privilege amendments, as applied to him, fit into Calder's fourth category of ex post facto laws: laws that alter the legal rules of evidence and receive less, or different testimony, than the law required at the time of the offense in order to convict the offender.Calder,3 U.S. at 390.The Ex Post Facto Clause does not, "`give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.'"Dobbert v. Florida,432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344(1977)(quotingGibson v. Mississippi,162 U.S. 565, 590, 16 S.Ct. 904, 910, 40 L.Ed. 1075(1896)).Instead the cases interpreting the Ex Post Facto Clause draw a distinction between the retroactive application of laws that change the legal sufficiency of the evidence required to convict and the retroactive application of laws that merely concern the competency or admissibility of evidence.Carmell,529 U.S. at 518 n. 2, 120 S.Ct. at 1625 n. 2.SeeThompson v. Missouri,171 U.S. 380, 388, 18 S.Ct. 922, 925, 43 L.Ed. 204(1898)("We cannot adjudge that the accused had any vested right in the rule of evidence which obtained prior to the passage of the Missouri statute. . . .").

In Carmell, the United States Supreme Court held unconstitutional the retroactive application of a statute that required corroboration of certain sexual offenses if the victim was eighteen years old or older.At the time of the relevant offenses, but not at the time of the defendant's trial, the statute required evidence of corroboration unless the victim was less than fourteen years old.At the time of the offenses discussed in the Carmell opinion, the victim was between fourteen and eighteen and the law had not yet dispensed with the corroboration requirement for a victim whose age fell within that range.529 U.S. at 518, 120 S.Ct. at 1625.The Court held the application of the amended law was unconstitutional because it changed the quantum of evidence that was legally sufficient for a conviction.Id. at 530, 120 S.Ct. at 1631.Emphasizing that, before the new law, the defendant would have been legally entitled to a judgment of acquittal in the absence of corroboration, the Court carefully distinguished retroactive application of changes to the legal sufficiency of the evidence from retroactive applications of changes in the ordinary rules of evidence."More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome that presumption."Id. at 533, 120 S.Ct. at 1633.

Virginia decisions also make the distinction between changes to the ordinary rules of evidence and changes to...