Winfield v. Com.

• Decision Date: 11 March 1983
• Docket Number: No. 812250,812250
• Court: Virginia Supreme Court
• Parties: Herbert WINFIELD, Jr. v. COMMONWEALTH of Virginia. Record

Page 15

301 S.E.2d 15

225 Va. 211

Herbert WINFIELD, Jr. v. COMMONWEALTH of Virginia.

Record No. 812250.

Supreme Court of Virginia.

March 11, 1983.

H. Taylor Williams, IV, Dinwiddie (Williams & Chappell, Dinwiddie, on brief), for appellant.

Roscoe C. Roberts, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, ^* STEPHENSON, and RUSSELL, JJ.

RUSSELL, Justice.

In this case of first impression involving a prosecution for sexual assault, we must examine the admissibility of evidence of the complaining witness's specific acts of sexual conduct with persons other than the accused, in the light of the "rape shield" provision of Code § 18.2-67.7. ¹ Herbert Winfield, Jr., was indicted for the forcible rape and forcible sodomy of Sandra Nelson. Prior to trial, Winfield gave written notice to the Commonwealth, pursuant to Code § 18.2-67.7(B), that he wished to offer the following evidence as to Sandra's prior sexual conduct with others:

(1) Testimony of Leon Moore that Sandra Nelson agreed to have sexual intercourse with him on the condition he pay her twenty dollars; that he had sexual intercourse with Sandra Nelson; that he did not pay her the twenty dollars; that Sandra Nelson stated that if he did not pay her the twenty dollars that she would tell his wife; that he paid her twenty dollars; that Sandra Nelson has a reputation in the community for being unchaste and immoral.

(2) Testimony of Lawrence Winfield that Sandra Nelson asked him if she should have sexual intercourse with Leon Moore for money; that Sandra Nelson stated to him that she needed the money so she would have sexual intercourse with Leon Moore; that Lawrence Winfield has had sexual intercourse with Sandra Nelson; that he paid her ten dollars after having sexual intercourse with her; that Sandra Nelson has a reputation in the community for being unchaste and immoral.

(3) Testimony of Denise Daniels that Sandra Nelson has stated to her that a man was going to give Sandra Nelson $100.00 if she would go to bed with him and she decided not to do it but that she allowed him to feel her breasts for $25.00; that Sandra Nelson has a bad reputation in the community.

(4) Testimony of Towana Parham that Sandra Nelson has stated to her on three different occasions that Sandra Nelson has been to bed with different men; that Sandra Nelson stated to her Sandra Nelson was pregnant but did not know who the father of the child was; that Sandra Nelson has a bad reputation in the community.

(5) Testimony of Anthony Branch that Sandra Nelson has an unchaste and immoral reputation in the community; that Sandra Nelson has on several occasions had sexual intercourse with various men and then told the man's wife or girl friend of the incident in an effort to create trouble between the man and his wife or girl friend.

(6) Testimony of Carol Jackson that Sandra Nelson has an unchaste and immoral reputation in the community; that he has had sexual intercourse with Sandra Nelson; that he had a friend tell him he paid Sandra Nelson $150.00 to have sexual intercourse with her; that Sandra Nelson has had sexual intercourse with a man and then told the man's girl friend about the incident in an effort to create trouble between the man and his girl friend.

The matter was set for hearing in advance of trial for a determination of the admissibility of the proffered evidence. For the purposes of the hearing, the Commonwealth stipulated that the six witnesses would testify as indicated in the notice quoted above. Accordingly, their actual testimony was dispensed with, and the parties submitted the question of admissibility to the court as a matter of law. The court determined that the evidence was "inadmissible ... as evidence relevant to show that the complaining witness had a motive to fabricate the charge against the accused." This ruling presents the dispositive question on appeal.

At Winfield's subsequent jury trial, the Commonwealth's evidence showed that Sandra, nineteen years of age, and Winfield, thirty-two, lived in the same apartment development in Chesterfield County and were on friendly terms. On the afternoon of July 25, 1981, Sandra asked Winfield to give her a ride in his car to a "night spot" in Petersburg that night. She testified that long after dark, he picked her up and drove her to a rural area in Dinwiddie County and frightened her by telling her they were in an area where the "KKK" met and that she would be caught by the "KKK" if she attempted to leave the car. He then stopped the car, threatened to hurt her if she resisted, forcibly removed her clothing, pinned her hands behind her and forcibly subjected her to rape and sodomy. She testified that she cried and attempted to push him away but "just didn't have the strength." Afterwards, driving back toward Petersburg, the defendant stopped at a service station and went inside to buy cigarettes. At this point, Sandra testified, she jumped out of the car and ran to three strangers in a truck, offering them all the money in her purse if they would take her home. When she arrived home, she told a friend that Winfield had raped her and called the police.

A state trooper interviewed her at her apartment at about 2:00 a.m. on July 25th, within thirty minutes of her call. He found her upset, nervous, and crying. He saw no signs of physical injury. She accompanied him to Dinwiddie County and pointed out the area in which she said the offenses had occurred. Sandra and the trooper were the only witnesses called by the Commonwealth.

Winfield testified that he had known Sandra for six months and that they had frequent discussions concerning sex. On the afternoon of July 24, 1981, he said that she had asked him if he thought she should spend the night with another man who had offered her $150.00. Winfield responded that that was up to her, but that he would give her $50.00 for sexual favors. She agreed. About 11:00 p.m. that night, she came to his apartment and said she was ready to go with him. He drove her down Interstate 95 and she suggested that they stop at a motel. He told her that he could not afford a motel room and drove her to the end of a country road. He testified that they then engaged in sexual intercourse with Sandra's consent and willing participation. On the way home, Sandra asked him for the promised $50.00. He told her that he had it at home, but not with him. She became angry and said that she was going to have him arrested. When he stopped at a service station to buy $2.00 worth of gas and some cigarettes, she got into a car with somebody he didn't know and left. He returned home and went to bed. Later, he said, he was awakened by Sandra's boyfriend who asked him about the money and threatened him with jail. Soon thereafter the police took him to the Dinwiddie County jail on a rape charge.

Winfield's testimony was partially corroborated by three defense witnesses. William Swann testified that he had been present during the afternoon conversation between Sandra and Winfield and had heard Sandra agree to accept $50.00 for sexual favors. Sandra admitted on cross-examination that Swann had been present, along with another man, when she had an afternoon conversation with Winfield. Clifford Coles, a cousin of Sandra's, testified that she later told him that she had had sexual intercourse with Winfield, that she "wished he had given her $50.00," and that she was "going to make sure he gets some time." James Harris, who knew both parties, testified that he saw them sitting together in Winfield's parked car late on the evening of July 24th and that Sandra was sitting close against Winfield, who had his arm over the seat. Harris stopped to talk, but Sandra seemed to be in a hurry, saying: "Ah, come on, let's go." Harris left, and heard of Winfield's arrest for rape the next day.

The jury found Winfield guilty under both indictments and fixed his punishment at five years confinement in each case. The court overruled his post-trial motions and imposed the two sentences to run consecutively.

We first consider Winfield's principal assignment of error: that the trial court erred in ruling, as a matter of law, that the evidence of the six witnesses proffered in his notice was not relevant to show a motive to fabricate the charge against him.

Prior to July 1, 1981, Virginia followed the well-settled rules of the common law that the accused in a rape case, asserting the defense of consent, might introduce evidence of the previously unchaste character of his accuser. Wynne v. Commonwealth, 216 Va. 355, 218 S.E.2d 445 (1975). This could only be shown by proof of general reputation of the complaining witness in the community for unchastity or prostitution. Burnley v. Commonwealth, 208 Va. 356, 158 S.E.2d 108 (1967); Powell v. Commonwealth, 179 Va. 703, 20 S.E.2d 536 (1942). The reason for the rule was set forth in Bailey v. Commonwealth, 82 Va. 107, 110-11 (1886):

This offence may be committed as well on a woman unchaste, or a common prostitute, as on any other female. In [the] matter of evidence, however, want of chastity may, within recognized limits, be shown as rendering it more probable that she consented.

This rule has been subjected to increasing criticism in recent years. Commentators observed, first, that there is no logical connection between a woman's willingness to share intimacies with another man with whom she might have had a special relationship. This is particularly true since the law always permitted the defendant to show that he personally had a prior sexual relationship with the complaining witness. See Finney v. Commonwealth, 154 Va. 808, 152 S.E. 555 (1930). Second, proof of general reputation in the community has very little probative weight. In a transient urban society, it often boils down to the uninformed opinion of a character witness. Finally, such reputation evidence was extremely...