Vay v. Commonwealth, Record No. 0053-16-2

Citation67 Va.App. 236, 795 S.E.2d 495
Case DateJanuary 31, 2017
CourtCourt of Appeals of Virginia

67 Va.App. 236
795 S.E.2d 495

Manneh Vay
Commonwealth of Virginia

Record No. 0053-16-2

Court of Appeals of Virginia, Richmond.

JANUARY 31, 2017

Charles L. Weber, Jr., Charlottesville, for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Russell and AtLee


67 Va.App. 242

Manneh Vay, appellant, was convicted, in a jury trial, of rape in violation of Code § 18.2–61, sodomy in violation of Code § 18.2–67.1, and abduction with intent to defile in violation of Code § 18.2–48. On appeal, he argues that the trial court erred in 1) denying appellant's motions to strike the evidence of abduction, 2) refusing to give a proposed jury instruction on the law of incidental detention, 3) failing to conduct voir dire on whether appellant voluntarily waived his right to testify, 4) refusing to strike a juror for cause, and 5) its response to questions from the jury. For the reasons stated below, we affirm.

795 S.E.2d 498


Underlying Facts

"Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008) ). This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).

So viewed, the evidence established that, on September 22, 2012, the victim, L.S., then a seventeen-year-old college student, attended a party in Charlottesville. The party was crowded, and many of the guests were dancing. L.S. initially

67 Va.App. 243

danced with her friends, but because of the crowd, she became separated from her friends and began dancing with appellant. While dancing, appellant grabbed L.S. by the waist and pushed her toward a wall. He then attempted to lift up her skirt. L.S. characterized appellant as becoming "really forceful" and testified that she intended to "just get away from [appellant]" when the song ended. Before she had a chance to leave, appellant removed his penis from his pants, grabbed her hand, and forced her to touch him. When the song ended, L.S. attempted to move away from appellant, but he grabbed her by the waist and pushed her through the crowd of people. She explained at trial:

[T]here is a guy that I don't know leading me somewhere, who knows where I'm going and he has, like, control in a sense. I don't know how to explain it, but he is using a lot of force and I know he's using a lot of force because there's [sic] so many people in that party for him to be able to push me through people. I meant literally people were—I was—my shoulders were bumping against people, ... imagine, I don't know, there's a crowd of people around you and, you know, you're trying to get to the front of the line or something and you have to use a lot of force to get through people or else people won't move, so that's what he was doing.

Appellant pushed L.S. through the kitchen, down a hallway, and into a bathroom, a distance of forty feet. Appellant immediately locked the bathroom door behind them and tried to remove L.S.'s skirt. L.S. tried to push his hands away and repeatedly asked him to "please stop." Appellant responded by telling her that she would enjoy it.

Appellant eventually ripped off L.S.'s skirt and underwear. He then unsuccessfully tried to penetrate L.S. from behind. Appellant pushed L.S. to the floor and pinned her down with his body. L.S. struggled against him, repeatedly telling him to stop. Despite her efforts to resist, appellant was able to penetrate her vagina with his penis and later with his tongue. L.S. also testified that, at one point, appellant "pushed [her] shirt down and pushed [her] bra down and ... started sucking

67 Va.App. 244

on [her] nipple ... using so much force [that it was] ... painful," which caused her to scream.

After he was finished, appellant asked L.S. for her telephone number. L.S. swore at appellant, left the bathroom, and eventually found her friends and called police.

Charlottesville Police Officer Tara Sanchez responded to the call of a possible sexual assault. Officer Sanchez arrived at the scene within a minute of the call and found L.S. lying on the ground with a "disconnect[ed] look on her face." She appeared as though she had been crying and was breathing heavily. Officer Sanchez described L.S. as being in "almost a hyperventilating state." L.S. did not appear intoxicated. L.S. gave Officer Sanchez a detailed account of the events that just had taken place and described appellant.

Kathryn Laughon, Ph.D., an associate professor of nursing at the University of Virginia, testified as an expert in the field of sexual assault injuries. She was called to the emergency room on September 23 at 2:30 a.m. to meet with and examine L.S. She described L.S. as tearful and upset, but cooperative. Laughon observed bruising and redness

795 S.E.2d 499

on L.S.'s lower legs, but was unable to conduct a complete exam because L.S. complained of pain.

Pre-Trial Hearing

The matter was scheduled to be tried on June 10, 2013. Shortly before the trial was scheduled to commence, appellant moved to continue the trial date. The trial court convened a hearing on appellant's motion for continuance on June 4, 2013.

At the hearing, appellant, by counsel, explained that certain witnesses he wished to call had not been subpoenaed successfully and one would be out of the country on June 10th. During the hearing, it was revealed that counsel only recently had been in touch with these potential witnesses and had sought to compel the attendance of the witnesses only recently. In attempting to explain why he previously had not sought issuance of the subpoenas, appellant's counsel indicated that he was limited in what he could say because the decision to

67 Va.App. 245

seek the witnesses was related to "our trial strategy[, which] has been evolving."

The trial court responded by noting that it did not want appellant to have to reveal anything protected by the "attorney/client privilege or [reveal trial] strategy." The trial court asked if the Commonwealth would allow him to discuss the issue with just appellant and his counsel so the court would be fully aware of the reasons for the requested continuance but "any [trial] strategy wouldn't be disclosed to the Commonwealth...." The trial court made clear it would take this step "only if the Commonwealth doesn't object."

The Commonwealth did not object, and the courtroom was cleared. The trial court noted that "for the record, the Commonwealth has left and nobody is left in the courtroom other than the bailiff, [appellant], [appellant's counsel], the court reporter, [and] the clerk." At that point, appellant's counsel indicated that the witnesses in question were being sought to testify about certain aspects of the party, e.g. , how people ended up there, the lighting, the physical layout of the premises, etc.

The reason counsel had not sought the attendance of the witnesses before was that appellant could testify about these issues; however, according to counsel, the defense recently had decided that appellant would exercise his right not to testify , thus requiring other witnesses to establish the facts counsel had planned to elicit from appellant. Specifically, counsel told the trial court that

[w]e came to a point where I had a fairly frank discussion with [appellant] and said it might be in his best interest to consider not testifying at trial. That was fairly recent, after I've had several meetings with [appellant] and came to the conclusion—we came to that conclusion [that he would not testify].

Although present in the courtroom without any opposition present, appellant gave no indication that counsel's statement was anything less than absolutely accurate. Based on the

67 Va.App. 246

representations in the closed hearing, the trial court granted appellant's motion for a continuance.


During voir dire , the Commonwealth asked whether anyone served as a volunteer for groups that worked with the victims of sexual assault. One juror, a sociology professor at the University of Virginia who is affiliated with Women and Gender Studies at the University, stated that she had supervised students who were involved with the local Sexual Assault Resource Agency and had done research projects on the issue of sexual assault. The...

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