Leonard v. Com.

• Decision Date: 05 November 2002
• Docket Number: Record No. 2858-00-4.
• Citation: 39 Va. App. 134,571 S.E.2d 306
• Parties: Bobby Joe LEONARD v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

571 S.E.2d 306

39 Va. App. 134

Bobby Joe LEONARD v. COMMONWEALTH of Virginia.

Record No. 2858-00-4.

Court of Appeals of Virginia, Alexandria.

November 5, 2002.

James G. Connell, III, Richmond (Devine & Connell, P.L.C., on briefs), for appellant.

Stephen R. McCullough, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and FRANK and CLEMENTS, JJ.

CLEMENTS, Judge.

Bobby Joe Leonard was indicted, tried, and convicted in a jury trial of rape, in violation of Code § 18.2-61, abduction with intent to defile, in violation of Code § 18.2-48, and attempted murder, in violation of Code §§ 18.2-26 and 18.2-32. On appeal, Leonard contends the trial court erred (1) in refusing to dismiss his indictment for attempted murder because the Commonwealth vindictively obtained that indictment after he refused to accept a plea bargain and plead guilty to the rape and abduction charges,¹ (2) in admitting evidence of his attempt to escape from jail because he was not charged with attempted murder at the time of the attempted escape and was being held on two additional charges unrelated to the crimes for which he was tried in this case, and (3) in permitting a sexual assault nurse examiner to offer expert medical testimony regarding the causation of the victim's sexual injuries. For the reasons that follow, we affirm Leonard's convictions.

BACKGROUND

On August 17, 1999, Leonard was arrested and charged with the rape and abduction with intent to defile of S.T. On September 9, 1999, while incarcerated on those and two other unrelated charges — unauthorized use of a vehicle and violation of the terms of his parole — Leonard and another inmate attempted to escape from jail.

Prior to the preliminary hearing in this case, Leonard and the prosecutor engaged in plea negotiations, which failed when Leonard rejected the Commonwealth's offer. On November 9, 1999, after conducting a preliminary hearing, the general district court certified the charges to the grand jury. On November 15, 1999, the grand jury indicted Leonard for rape and abduction with intent to defile.

The case was set for trial on December 21, 1999, and subsequently continued, on the Commonwealth's motion, to January 31, 2000. The Commonwealth indicated at the time that it intended to amend the charges and seek the mandatory life sentence for second-time violent sex offenders provided for in Code § 18.2-67.5:3. Leading up to the January 31, 2000 scheduled trial date, the Commonwealth and Leonard conducted plea negotiations focusing on the possibility of an indictment under Code § 18.2-67.5:3. However, because the facts regarding Leonard's prior conviction revealed that Leonard did not qualify for the enhanced penalty, the Commonwealth did not pursue such a course of action.

On January 21, 2000, the Commonwealth and Leonard again exchanged offers for a possible plea agreement, but those negotiations also proved unsuccessful. On January 27, 2000, Leonard obtained a continuance of the trial to March 1, 2000.

On February 16, 2000, the Commonwealth informed Leonard it would return to the grand jury to seek an indictment for attempted murder if a plea agreement could not be reached.² Leonard chose not to plead guilty. Accordingly, on February 22, 2000, the Commonwealth obtained from the first available grand jury an indictment charging Leonard with attempted murder. Leonard does not dispute that the indictment for attempted murder was fully justified by the evidence or that the Commonwealth was in possession of such evidence at the time it obtained the original rape and abduction indictments. Similarly, the Commonwealth does not dispute that Leonard's refusal to plead guilty to the original charges was the reason it sought the indictment for attempted murder,

On February 25, 2000, the trial court, in scheduling the trial on the attempted murder charge, granted Leonard's request to have the trial on the rape and abduction charges continued so that all three charges could be tried together. Trial on the three charges was set for April 5, 2000.

On March 10, 2000, the trial court denied Leonard's motion to dismiss the indictment for attempted murder on the ground of prosecutorial vindictiveness. Finding the Commonwealth's actions were "a free exercise of prosecutorial discretion," the trial court concluded the circumstances of the case did not "rise to the level of a due process violation."

On April 4, 2000, the day before trial was set to commence, the Commonwealth learned that S.T., previously thought to be an adult, was in fact a juvenile. In light of that information, the parties agreed that the rape and abduction with intent to defile charges were improperly certified from the general district court and that, as a result, the trial court lacked jurisdiction over those charges. Accordingly, the Commonwealth, by agreement of the parties, "nolle prossed" the original rape and abduction with intent to defile charges and obtained new indictments on those charges on April 17, 2000.

On April 28, 2000, the trial court conducted a hearing on Leonard's pretrial motions in limine to exclude (1) evidence of his attempt to escape from jail on September 9, 1999, and (2) expert testimony by the sexual assault nurse examiner on the causation of the victim's sexually related injuries. Denying Leonard's motions, the trial court ruled that such evidence and testimony were properly admissible at trial. Leonard renewed these motions at trial, and, following argument and, in the case of the nurse examiner's testimony, voir dire of the nurse examiner, the trial court again denied the motions.

On July 19, 2000, the trial court granted the motion of Leonard's appointed counsel to withdraw. Leonard, at his own request, proceeded to trial pro se. The court appointed an advisory counsel to assist him at trial, which commenced on July 24, 2000.

At trial, Diane Burkart, the sexual assault nurse examiner who had examined S.T. at the hospital, qualified as an expert witness in the field of "sexual assault nurse examination." She testified that, to a reasonable degree of medical certainty, the bruises she observed around S.T.'s vaginal opening were caused by "blunt trauma." She would not expect to see, she further testified, the degree of injury she observed to S.T. "in an [in]experienced consensual intercourse situation."

Testifying on his own behalf at trial, Leonard denied he raped, abducted, or attempted to murder S.T. On cross-examination, he testified, in response to questioning by the prosecutor, that he did attempt to escape from jail while being held on the rape and abduction charges, because jail "is a horrible place to be" and he was "homesick."

At the close of the evidence at trial, the court instructed the jury, inter alia, that

if a person leaves the place where a crime was committed, or flees to avoid detection, apprehension or arrest this creates no presumption that the person is guilty of having committed the crime. However, it is a circumstance which you may consider along with the other evidence.

Following argument and instruction by the court, the jury found Leonard guilty of the three charged crimes. The jury recommended a sentence of life in prison for the rape, twenty years for the abduction with intent to defile, and ten years for the attempted murder. By orders entered November 13, 2000, the trial court imposed sentence in accord with the jury's recommendations. This appeal followed.

II. PROSECUTORIAL VINDICTIVENESS

Leonard contends the trial court erred in denying his motion to dismiss the indictment for attempted murder because that indictment was impermissibly obtained by the Commonwealth in retaliation for his decision to go to trial rather than accept the prosecutor's proposed plea bargain and plead guilty to the rape and abduction charges. The Commonwealth's decision to bring the additional charge, Leonard maintains, was motivated by actual vindictiveness, as evidenced by the prosecutor's threat to obtain the indictment for attempted murder if a plea agreement could not be reached and the prosecutor's timing in making that threat and obtaining the additional indictment. Accordingly, Leonard concludes, the Commonwealth violated his due process rights in obtaining the indictment for attempted murder and the trial court erred in refusing to dismiss it. We disagree.

"In our system [of justice], so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Such discretion is not unlimited, however. For example, a prosecutor may not punish a defendant for doing "what the law plainly allows him to do" or retaliate against him for relying on his legal rights. Id. at 363, 98 S.Ct. 663. Such punishment or retaliation constitutes "a due process violation of the most basic sort." Id. "But in the `give-and-take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer."Id.

In Bordenkircher, the prosecutor, acting on a threat he made during plea negotiations, obtained an indictment for a crime carrying a mandatory life sentence after the defendant refused to accept the prosecutor's proposed plea bargain and plead guilty to the original charge, which carried a maximum sentence of ten years and was based on the same conduct as the additional charge. Id. at 358-59, 98 S.Ct. 663. Although the prosecutor admitted the purpose of his threat to reindict the defendant on the new, more serious charge was to discourage the defendant from exercising his right to a trial, the United States Supreme Court concluded there was no prosecutorial vindictiveness...