Neeley v. Com.

• Decision Date: 23 November 1993
• Docket Number: No. 0418-92-3,0418-92-3
• Parties: Albert Jake NEELEY, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 721

437 S.E.2d 721

17 Va.App. 349

Albert Jake NEELEY, Jr. v. COMMONWEALTH of Virginia.

Record No. 0418-92-3.

Court of Appeals of Virginia.

Nov. 23, 1993.

Lonnie L. Kern, for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and BARROW and KOONTZ, JJ.

KOONTZ, Judge.

Albert Jake Neeley, Jr. (Neeley) appeals his conviction by jury of burglary in the nighttime with the intent to commit rape or sodomy, rape, and forcible sodomy. On appeal, Neeley contends that the trial court erred in denying his motion to introduce evidence of the complaining witness's prior sexual conduct. ¹ In a pre-trial evidentiary hearing and at trial, the trial judge, citing Code § 18.2-67.7, refused to admit proffered evidence of the complaining witness's prior sexual conduct. Neeley alleges that barring the admission of this evidence prejudiced his constitutional right to a fair and impartial trial. For the following reasons, we reverse Neeley's conviction and remand the case for a new trial.

I. Factual Background

On the evening of May 30, 1991, Carrie, a fourteen year old white female, stayed at home with her younger brother, while the children's mother worked the night shift at Holston Valley Hospital. Carrie went to sleep sometime after midnight.

Neeley was at Mary Adams's house that evening. He wore a jacket that had an emblem hanging from it that made "a lot of noise." He left Adams's house between 3:00 and 3:45 a.m. Adams lives approximately three-tenths of a mile from Carrie's home.

At trial, Carrie testified that she awoke when a black man grabbed her throat. She heard a "jingling" noise, leading her to believe that the assailant wore some sort of necklace. The assailant told her not to scream. He told her to take off her clothes. When she did not comply, the assailant ripped off her panties, raped her and forcibly sodomized her anally.

Carrie further testified that the assailant sounded like Neeley. She knew Neeley's voice because he had previously visited Carrie's mother, went camping with the family once, and officiated in the baseball program in which Carrie's brother participated.

Following the attack, Carrie called her two aunts and told them about the assault. When Dennis Brummitt of the Norton Police Department arrived at Carrie's home, he saw the torn panties in Carrie's bedroom. Carrie told the police that the assailant wore a necklace or something that jingled.

Brummitt testified that when he first interviewed Neeley on June 3, Neeley denied having sexual intercourse with Carrie on May 31; however, when Brummitt interviewed Neeley on June 19, Neeley admitted being at Carrie's house around 3:45 a.m. on May 31. According to Brummitt, Neeley gave him the following account of the events of that evening: as Neeley walked past Carrie's home, he saw a light in her bedroom window. He called Carrie's name and she answered the door. After they discussed Carrie's personal problems, Neeley laid down on her bed and went to sleep. Neeley awoke to find Carrie having sexual intercourse with him. At trial, Neeley denied having made this statement, and Brummitt admitted that he had no record of the conversation and never presented a statement to Neeley for his signature.

Elmer Gist, a technician with the forensic laboratory in Roanoke, examined hair samples obtained during the investigation of the case. Gist could not positively identify Neeley as the source of a hair fragment characteristic of hair from a person of African-American descent obtained through a cervical swab taken from Carrie. Another hair fragment, found in her clothing, had "no value for meaningful comparison." Two hairs, also characteristic of hair from a person of African-American descent, found in Carrie's bed clothes closely matched head hairs of Chastity Lewis, Carrie's girlfriend, who occasionally spent the night at Carrie's home.

Neeley filed a motion seeking an order to use evidence at trial of the complaining witness's prior sexual conduct. The motion recited that such evidence would "provide an alternative explanation for physical evidence of the offense charged which is introduced by the prosecution to explain the physical injury to the complaining witness's intimate parts." In support of his motion, Neeley argued that the indictment alleged the presence of abrasions in Carrie's vaginal area and, according to a medical report, Carrie admitted having sexual intercourse with her boyfriend on May 13, 1991. The trial court denied Neeley's motion, but noted that pursuant to Code § 18.2-67.7(C), if new information surfaced in the course of the preliminary hearing or trial, the court could reconsider the issue.

At trial, Neeley renewed the motion to introduce evidence of Carrie's sexual intercourse with her boyfriend on May 13. Although the Commonwealth had not introduced evidence of injury to Carrie's vaginal area, Neeley argued that the evidence would serve to explain the origin of the hair fragment found in her cervix. Both Neeley and the boyfriend are African-Americans.

Neeley asserted that Dr. Nasire Hesen, who examined Carrie on June 4, would testify that the hair fragment could have come from the intercourse with the boyfriend. The trial judge, after considering Code §§ 18.2-67.7(A)(1) and 18.2-67.7(B), found the purpose of the evidence impermissible under the statute. ²

Neeley proffered Dr. Hesen's testimony for the record. Dr. Hesen stated that when she examined Carrie on June 4, Carrie recounted having engaged in intercourse with her boyfriend on May 13. Dr. Hesen stated that a hair deposited in the cervix on May 13 could "possibly" remain there until May 31. On cross-examination, Dr. Hesen stated that because Carrie's menstrual period occurred between May 13 and May 31, hair fragments from the intercourse on May 13 probably would not remain on May 31.

II. Origin and Purpose of the Rape Shield Law

In 1974, Iowa, Florida, Michigan and California amended their rules of evidence by enacting "rape shield" statutes. Within ten years, virtually every state adopted some form of protection for complaining witnesses in sexual assault cases. At the federal level, Fed.R.Evid. 412 achieved the same purpose. Virginia adopted its rape shield statute, Code § 18.2-67.7, in 1981.

These statutes limit harassing and embarrassing defense queries into the prior sexual conduct of the complainants, thereby encouraging victims to report sexual assaults and to testify at trial. The typical rape shield statute makes all evidence concerning a complainant's prior sexual conduct inadmissible, subject to specific exceptions to that rule of inadmissibility. Winfield v. Commonwealth, 225 Va. 211, 217-18, 301 S.E.2d 15, 19 (1983); Johnson v. Commonwealth, 9 Va.App. 176, 183, 385 S.E.2d 223, 227 (1989). In pertinent part, our statute provides:

Admission of evidence.

A. [G]eneral reputation or opinion evidence of the complaining witness's unchaste character or prior sexual conduct shall not be admitted. Unless the complaining witness voluntarily agrees otherwise, evidence of specific instances of his or her prior sexual conduct shall be admitted only if it is relevant and is:

1. Evidence offered to provide an alternative explanation for physical evidence of the offense charged which is introduced by the prosecution, limited to evidence designed to explain the presence of semen, pregnancy, disease, or physical injury to the complaining witness's intimate parts; or

2. Evidence of sexual conduct between the complaining witness and the accused offered to support a contention that the alleged offense was not accomplished by force ... provided that the sexual conduct occurred within a period of time reasonably proximate to the offense charged under the circumstances of this case; or

3. Evidence offered to rebut evidence of the complaining witness's prior sexual conduct introduced by the prosecution.

....

C. Evidence described in subsections A and B of this section shall not be admitted and may not be referred to at any preliminary hearing or trial until the court first determines the admissibility of that evidence at an evidentiary hearing.... If the court initially determines that the evidence is inadmissible, but new information is discovered during the course of the preliminary hearing or trial which may make such evidence admissible, the court shall determine in an evidentiary hearing whether such evidence is admissible.

Code § 18.2-67.7.

Unlike Federal Rule 412, this statute has no separate provision for conducting a constitutional analysis of evidence not specifically allowed under one of the enumerated exceptions. See Fed.R.Evid. 412(b)(1). "In construing a statute, we first look to its plain language." Jennings v. Division of Crime Victim's Compensation, 5 Va.App. 536, 538, 365 S.E.2d 241, 243 (1988). The plain language of the rape shield law permits introduction of prior sexual conduct evidence only for specific purposes addressed by those exceptions found therein. Accordingly, the plain language of the statute does not resolve the issue presented by this appeal.

III. Conflict of Rape Shield Laws and The Rights of the Criminal Defendant

The appellate courts of this Commonwealth have not previously addressed the constitutional challenge presented by this appeal. The sensitive nature of the subject matter requires a precise review of the issues.

Application of the rape shield law "has presented the courts with the concomitant problem that no legislation, however salutary its purpose, can be so construed as to deprive a criminal defendant of his Sixth Amendment right to confront and cross-examine his accuser and to call witnesses in his defense." Winfield, 225 Va. at 218, 301 S.E.2d at 19. In Winfield, the Supreme Court did not have occasion to address the constitutional aspects of Code § 18.2-67.7, but noted: "Some jurisdictions have held such laws...