Marshall v. Com.

• Decision Date: 04 November 1987
• Docket Number: No. 0955-85,0955-85
• Citation: 5 Va.App. 248,361 S.E.2d 634
• Parties: Robert Earl MARSHALL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 634

361 S.E.2d 634

5 Va.App. 248

Robert Earl MARSHALL v. COMMONWEALTH of Virginia.

Record No. 0955-85.

Court of Appeals of Virginia.

Nov. 4, 1987.

Michael HuYoung (Jane Chittom, Third-Year Student Practitioner, on brief), for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and KEENAN, JJ.

JOSEPH E. BAKER, Judge.

Robert Earl Marshall (appellant) appeals from a judgment of the Circuit Court of Richmond (trial court) which approved a July 16, 1985 jury verdict convicting him of rape of a female (victim) under the age of fourteen years. The indictment, ¹ returned by a grand jury on April 1, 1985, charged that "within the last five and a half years prior to the date of this indictment Robert Earl Marshall did feloniously and unlawfully rape (victim), ² age thirteen."

Previously, on May 3, 1985, in the City of Richmond, appellant was convicted of rape of this same victim pursuant to an indictment ³ which charged specifically that the rape occurred on March 3, 1985, a date within the time frame of the second indictment. At his second trial, prior to his arraignment and any evidence being introduced appellant moved to dismiss the second indictment, claiming double jeopardy as a bar. He asserted that the evidence required for a conviction would necessarily be the same as was presented at the trial pursuant to the first indictment. The Commonwealth does not challenge appellant's statement that a reading of the trial transcripts discloses that essentially the same evidence was presented in each case. ⁴ Appellant also moved that all evidence of the March 3, 1985 rape upon which the first conviction was obtained should be excluded in the trial of the charges made in the second indictment.

In response to appellant's motions the trial court addressed the following remarks to the prosecutor: "I take it you will proffer evidence of that (the March 3, 1985 rape) in today's case by way of showing scheme, plan, motive, attitude, intent, attitude of the defendant towards the victim." The court then denied both motions and ruled that the evidence of the March 3 incident "should not be as detailed as in the last trial." No definitive limitation was expressed.

The victim, who was fourteen at the time of the second trial, testified in the second trial that appellant first had intercourse ⁵ with her when she was eight years old. She described appellant's act by stating that he "placed his penis in my vagina," and that it would happen "about every other day" over a five year period. When asked when was the last time "that this occurred," she responded that it was Saturday, ⁶ March 3, 1985, at 1500 North 20th Street, in her bed at about five o'clock in the morning. ⁷ She related that she awakened and found appellant on top of her having intercourse with her. She described her clothing as only a nightgown and his as only "underdrawers."

When the victim's mother testified in the second trial that on Sunday, March 3, 1985, she saw appellant leave victim's bedroom at exactly 5:37 a.m., clothed only in his underwear, counsel for appellant objected. Notwithstanding that the trial court ruled that she could testify that a complaint was made by the victim but not the details thereof, the prosecution elicited detailed testimony of the events of March 3:

BY MS. BREIT:

Q You went to (victim)?

A Yes.

Q And where was she?

A In her bed.

Q What was she doing?

A She was laying there. I said, what was your daddy doing in here and she said or she laid there a few minutes and she said that he had his penis in her vagina. I asked her, I said, what did you say? She said or told me again.... (emphasis added).

The witness was then permitted to give further details of her taking the victim to the emergency room for a physical examination. ⁸

When the Commonwealth rested appellant moved to strike the evidence on the ground of double jeopardy, arguing that the mother's testimony concerning what the victim said went into too much detail, exceeded the admonition of the trial court, and did not meet the requirements of "the fresh complaint evidence rule." The motion was denied, whereupon appellant rested and renewed his motion. ⁹ On motion of appellant the trial court agreed to grant a written instruction to the jury that they were not to try appellant for the March 3, 1985 incident.

The jury returned a verdict of guilty. Appellant's motion to set aside the verdict as being contrary to the law and evidence was denied.

The Commonwealth argues that the second indictment was valid on its face and that appellant's Instruction 6, considered with certain precautionary oral statements made by the trial court during the course of the second trial, was sufficient to overcome any questions of admissibility or the defense of double jeopardy. ¹⁰

Appellant claims that since he previously was convicted for the rape which occurred on March 3, 1985, evidence of that rape could not be used against him in a trial charging him with rape of the same victim within five and a half years immediately preceding April 1, 1985. He asserts that such use of evidence of the March 3, 1985 rape violated the double jeopardy provisions of the United States and Virginia Constitutions.

It is well settled that evidence of other offenses is inadmissible to prove the offense for which the defendant is being tried as the tendency of such evidence to inflame and prejudice the jury may outweigh its evidentiary value. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970); Williams v. Commonwealth, 203 Va. 837, 840, 127 S.E.2d 423, 426 (1962). However, while the stated rule has general acceptance, exceptions thereto are equally well established:

Evidence of other offenses is admitted if it shows the conduct and feeling of the accused toward his victim, if it establishes their prior relations, or if it tends to prove any relevant element of the offense charged. Such evidence is permissible in cases where the motive, intent or knowledge of the accused is involved, or where the evidence is connected with or leads up to the offense for which the accused is on trial. Also, testimony of other crimes is admissible where the other crimes constitute a part of the general scheme of which the crime charged is a part. Frequently it is impossible to give a connected statement showing the crime charged without incidental reference to such contemporaneous and similar crimes and where there is only such incidental disclosure of other offenses.

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805.

Support for the position of the Commonwealth also may be found in Stump v. Commonwealth, 137 Va. 804, 808, 119 S.E. 72, 73 (1923):

The authorities are in conflict upon the general question as to whether, in a prosecution for statutory rape, evidence may be admitted of intercourse between the accused and the prosecutrix subsequent to the act upon which the prosecution is based. The better doctrine, as we think, is that where, as here, the consent of the prosecutrix is immaterial, such evidence is admissible as tending to show the disposition of the defendant with respect to the particular act charged. There is ample authority for this view.

Id. (citations omitted); see also Waitt v. Commonwealth, 207 Va. 230, 235, 148 S.E.2d 805, 809 (1966); Day v. Commonwealth, 196 Va. 907, 914, 86 S.E.2d 23, 26 (1955).

If the jury is properly instructed as to the purpose for which the evidence is admitted, and the limitation upon their consideration thereof, the Commonwealth is entitled to have the jury consider evidence as here given by the victim concerning the events of March 3, 1985. ¹¹

[I]t is well settled that in a prosecution for incest, evidence of acts of incestuous intercourse between the parties other than those charged in the indictment or information, whether prior or subsequent thereto, is, if not too remote in point of time, admissible for the purpose of throwing light upon the relations of the parties and the incestuous disposition of the defendant toward the other party, and to corroborate the proof of the act relied upon for conviction.... The fact that some of the other offenses were remote in point of time from the act under investigation does not of itself render such evidence incompetent, where the acts were repeatedly done up to a comparatively recent period and were all apparently inspired by one purpose.

Moore v. Commonwealth, 222 Va. 72, 77, 278 S.E.2d 822, 825 (1981) (quoting Brown v. Commonwealth, 208 Va. 512, 516-17, 158 S.E.2d 663, 667 (1968)) (emphasis added). The trial court, however, must always make the jury aware of the specific purpose for which the evidence is admitted. In Waitt, Justice Buchannan, in approving admission of evidence of other offenses, said:

The court specifically instructed the jury that this evidence was not to be considered for any purpose other than as it might tend to show the disposition of the defendant with respect to the particular act charged.

The Waitt opinion emphasized that the trial court "specifically instructed" the jury concerning the purpose for which such evidence was admitted. The requirement was adhered to in Johnson v. State, 709 S.W.2d 345 (Texas App.1986), and cited by the Commonwealth in support of its position. The facts and pleas are almost identical to those in the case before us. The Texas trial court gave the following limiting instruction:

You are instructed that if there is any testimony before you in this case regarding the defendant's having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the intent, motive, system, scheme, or design of ...