Church v. Com.

• Decision Date: 11 October 1985
• Docket Number: No. 841373,841373
• Citation: Church v. Com., 335 S.E.2d 823, 230 Va. 208 (1985)
• Parties: William L. CHURCH v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 823

335 S.E.2d 823

230 Va. 208

William L. CHURCH v. COMMONWEALTH of Virginia.

Record No. 841373.

Supreme Court of Virginia.

Oct. 11, 1985.

Michael Morchower, Richmond (Mark K. Tyndall, Morchower, Luxton & Whaley, Richmond, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: All the Justices.

RUSSELL, Justice.

This criminal appeal presents questions concerning the admission of hearsay evidence, the introduction into evidence of communications between husband and wife, and the voluntariness of defendant's waiver of counsel.

William L. Church was indicted for forcible sodomy and statutory rape, allegedly committed on February 5, 1983, upon a seven-year-old girl. He was found to be indigent, and the court appointed an attorney, R. Donald Ford, to represent him. Both indictments were tried to a jury on November 3, 1983, resulting in a conviction on the charge of forcible sodomy, for which the jury fixed punishment at confinement in the penitentiary for a term of 25 years. The jury was unable to agree on a verdict in the rape case, however, and a mistrial resulted. The rape case was continued to March 28, 1984, for trial before another jury.

During the interval between trials, the defendant wrote a series of letters to the trial judge, containing a barrage of motions pro se. In this correspondence, the defendant expressed dissatisfaction with his court-appointed attorney and said, "I pray that the court grant my motion to fire my attorney and I wish to represent myself with the aid of another court appointed lawyer." Nevertheless, Mr. Ford adopted and filed over his own endorsement one of the defendant's pro se motions, asking for a pelvic examination of the victim.

The record on appeal contains no transcript of any proceedings in open court which occurred after the trial resulting in the sodomy conviction on November 3, 1983, and before the hearing on the motion for the pelvic examination on February 23, 1984. However, the court's remarks on the latter date indicate that an unrecorded hearing had been held in the interim THE COURT: The case of Commonwealth against William Church. We're here today on Mr. Church's motion for the Court to compel a physical examination of the alleged victim in this case .... The Court has appointed Mr. Joseph O. Humphreys as guardian ad litem for [the child].

Mr. Ford, you have been relieved by Mr. Church as his attorney, is that correct?

MR. FORD: Yes, sir.

THE COURT: I think that was done the last time at Mr. Church's request and I told Mr. Church that I would keep Mr. Ford available for him to assist him in any way or provide any kind of advice that Mr. Church might seek of him but it's my understanding, Mr. Church, that you're going to proceed as your own attorney, is that correct?

THE DEFENDANT: That's correct, Your Honor.

THE COURT: All right. Are you prepared to proceed, Mr. Church?

THE DEFENDANT: Yes, sir.

Mr. Ford remained present during the February 23 hearing, but took no active part. The defendant conducted the hearing pro se, making an opening statement, cross-examining the Commonwealth's witnesses, and making a closing argument. The court denied the defendant's motions.

The rape case came to trial again on March 28, 1984. Mr. Ford was again present as standby counsel, but the defendant again conducted his defense pro se. During voir dire, the defendant moved the court to exclude the witnesses from the courtroom. The court granted the motion and asked who the defense witnesses would be. The defendant named three, one of whom was Mr. Ford. The court asked the defendant whether he understood that this would result in Mr. Ford's exclusion from the courtroom until he testified and that he would therefore be unavailable to assist the defense. The defendant said that he understood and agreed to that procedure. ^*

The trial proceeded with the defendant representing himself. He made an opening statement, cross-examined the Commonwealth's witnesses, conducted direct examination of his own witnesses, argued evidentiary objections, and made a closing argument. The jury found him guilty of rape and fixed his punishment at life imprisonment. On June 15, 1984, after receiving a pre-sentence report, the court entered judgment on both jury verdicts, to run consecutively. The defendant appeals both convictions.

At the first trial, the child's mother was a witness for the prosecution. She testified that the child had made no report of the crimes in early February 1983, but that toward the end of that month she noticed changes in the child's behavior, including bed-wetting, nightmares, complaint of a vaginal itch, and a fear of being left alone with her father or brother. The mother then said that the child "had an obsession with my husband's and my sex life. She would ask questions and when I'd give her an answer, she'd cry. She'd tell me she didn't want me--us to do that because it was dirty, nasty and it hurt." The defendant's hearsay objection was overruled on the ground that the child's declaration was not offered to show its truth.

The court's ruling was correct. The rule against hearsay prohibits, subject to many exceptions, the admission of extra-judicial statements "only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted." Richard Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981). Unless it is offered to show its truth, an out-of-court statement is not subject to the rule against hearsay and is admissible if relevant. The Commonwealth did not offer the child's statement to prove that sex is "dirty, nasty and it hurt." Rather, it was offered to show the child's attitude toward sex, an attitude likely to have been created by a traumatic experience. Although the child made no prompt report of the crime, the Commonwealth was entitled to prove, by circumstantial evidence, that she had been a victim. Thus, the child's out-of-court statement was not hearsay, but was admissible as circumstantial evidence tending to establish the probability of a fact in issue. Horne v. Milgrim, 226 Va. 133, 139, 306 S.E.2d 893, 896 (1983). Because the hearsay ruling was the basis of the only assignment of error relating to the first trial, we will affirm the conviction for forcible sodomy.

At the second trial, Caroline Church testified as a witness for the Commonwealth. She had been married to the defendant at the time of the alleged offenses, and at the time of the first trial, but had obtained a final divorce before the second trial began. She testified to two statements the defendant had made to her while the child was visiting in their marital home, in which he told her that the child's close presence aroused him sexually.

The defendant made no objection to this specific testimony, but he had objected, when Caroline Church was first called as a witness, on the ground that she should not be permitted to testify against him at all because she was his wife. Upon proof of her final divorce, the court properly overruled this objection. As we pointed out in Stewart v. Commonwealth, 219 Va. 887, 891, 252 S.E.2d 329, 332 (1979), "[t]he privilege of an accused to prevent his spouse from testifying against him is determined at the time of trial and depends upon the couple being validly married at the time."

We also noted in Stewart that there is an entirely different privilege insuring the inviolability of confidential communications between spouses, which survives the dissolution of the marriage. Id. at 892-93, 252 S.E.2d at 333. The defendant assigns error to the court's admission of evidence in violation of the interspousal confidential communication privilege. Because that privilege was not invoked in the trial court, however, we will not consider it as a ground for reversal on appeal. Rule 5:25 (former Rule 5:21). A defendant who represents himself is no less bound by the rules of procedure and substantive law than a defendant represented by counsel. Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2540-41 n. 46, 45 L.Ed.2d 562 n. 46 (1975).

Because we must reverse the rape conviction on another ground, the case may be tried a third time and Caroline Church's testimony may again be offered. Therefore, we shall consider the present state of the law concerning interspousal communications.

When Stewart was tried, the general husband-wife privilege was expressed in former Code § 8-288 (Cum.Supp.1976), relating only to criminal cases. Substantially modifying the common law, it provided, in pertinent part:

In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, 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 in the case of a prosecution for an offense committed by one against the other ....

In the repeal of Title 8 and its recodification as Title 8.01, effective October 1, 1977, that section was repealed and reenacted as a part of Title 19.2, which governs criminal procedure. It now appears as § 19.2-271.2, which provides in pertinent part:

In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, 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 in the case of a prosecution for...