Donald Robert Pilcher v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Smith *
Argued at Salem, Virginia
DONALD ROBERT PILCHER
MEMORANDUM OPINION ** BY
v. Record No. 2483-01-3 JUDGE JAMES W. BENTON, JR.
JULY 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Richard C. Pattisall, Judge
John H. Kennett, Jr. (David A. Bowers, on
briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The issues presented by this appeal are whether, under the
facts of this case, Code § 19.2-295.1, which requires a separate
proceeding limited to the ascertainment of punishment, and Code
§ 18.2-67.7, which is known as the "rape shield law," are ex
post facto laws. We hold that they are not.
I.
The grand jury indicted Donald Robert Pilcher for
committing fornication on three occasions with his daughter in
*
Retired Judge Charles H. Smith, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
violation of Code § 18.1-191. All the events were alleged to
have occurred between June 10, 1969 and March 30, 1970 under a
statute that has since been recodified and amended. In a
pretrial pleading and at a pretrial hearing, Pilcher's attorney
contended that the law of evidence must be the law in effect at
the time the crimes were committed.
At trial, one of Pilcher's daughters testified that between
June 10, 1969 and March 30, 1970, which was before her
seventeenth birthday, Pilcher had sexual intercourse with her on
at least three occasions. In the first incident, Pilcher called
her into a room in the basement and "inserted either his finger
or his thumb" and a metal crescent wrench handle into her vagina
before inserting his penis inside her. She said Pilcher
commented that he wanted to let her know what boys would be
doing to her later in life so she would know what to expect.
Pilcher's daughter also testified that, a few weeks later,
Pilcher again had sexual intercourse with her in the basement.
Pilcher once more had sexual intercourse with her several weeks
later.
During cross-examination of the daughter, the following
conversation occurred:
Q: Well, let me ask you this: Prior to
this time, had you ever had sexual
intercourse with somebody to know . . .
[PROSECUTOR]: Objection, Your Honor.
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* * * * * * *
. . . [He] is fully aware that is an
improper question.
[JUDGE]: All right, sustained.
[DEFENSE ATTORNEY]: Well judge, I have a
right to find out how she knows.
[JUDGE]: She has told you. You can ask her
how she knows it.
[DEFENSE ATTORNEY]: Well, I am trying to
find out.
[JUDGE]: Not along that line.
* * * * * * *
[DEFENSE ATTORNEY]: How did you know what
sexual intercourse was?
A: I learned it from my father.
In two pretrial statements to the police, Pilcher admitted
he touched his daughter's sexual parts, inserted objects into
her, and had "oral sex" with her on numerous occasions. He
denied, however, having intercourse with her, and said he "would
not take the chance of impregnating her."
At the conclusion of the evidence the jury convicted
Pilcher of committing fornication with his daughter as charged
in the three indictments.
II.
The Constitution of the United States, Article 1, § 10, and
the Constitution of Virginia, Article 1, § 9, prohibit the
General Assembly from enacting ex post facto laws. The Supreme
Court has traditionally recognized four categories of ex post
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facto criminal laws:
1st. Every law that makes an action done
before the passing of the law, and which was
innocent when done, criminal; and punishes
such action. 2d. Every law that aggravates
a crime, or makes it greater than it was
when committed. 3d. Every law that changes
the punishment, and inflicts a greater
punishment, than the law annexed to the
crime, when committed. 4th. Every law that
alters the legal rules of evidence, and
receives less, or different, testimony, then
the law required at the time of the
commission of the offence, in order to
convict the offender.
Calder v. Bull, 3 U.S. 386, 390 (1798). See also Collins v.
Youngblood, 497 U.S. 37, 42 (1990).
"It is equally well settled, however, that '[t]he inhibition
upon the passage of ex post facto laws does not give a
[defendant] a right to be tried, in all respects, by the law in
force when the crime charged was committed.'" Dobbert v.
Florida, 432 U.S. 282, 293 (1977) (citations omitted). In
addition, the Court has held that no ex post facto violation
occurs if the change effected by the law is merely procedural and
does "not increase the punishment nor change the ingredients of
the offence or the ultimate facts necessary to establish guilt."
Hopt v. Utah, 110 U.S. 574, 590 (1884). For example, in Dobbert,
the Supreme Court cited the following example of a procedural
change that was not considered ex post facto even though it
worked to the disadvantage of a defendant:
[I]n Hopt v. Utah, 110 U.S. 574 (1884), as
of the date of the alleged homicide a
convicted felon could not have been called
as a witness. Subsequent to that date, but
prior to the trial of the case, this law was
changed; a convicted felon was called to the
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stand and testified, implicating Hopt in the
crime charged against him. Even though this
change in the law obviously had a
detrimental impact upon the defendant, the
Court found that the law was not ex post
facto because it neither made criminal a
theretofore innocent act, nor aggravated a
crime previously committed, nor provided
greater punishment, nor changed the proof
necessary to convict. Id., at 589.
Dobbert, 432 U.S. at 293. In other words, although it is
possible for retroactive application of a procedural law to
violate the ex post facto clause, a violation only occurs when
one of the four recognized categories of ex post facto law is
implicated. Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001).
III.
At trial, Pilcher's attorney argued that the "rape shield"
law was an ex post facto prohibition against his use of
impeachment evidence. He also argued that the statutory
requirements -- that the party offering evidence file a written
notice describing the evidence and that the judge conduct an
evidentiary hearing -- change the rules of evidence and,
therefore, violate the prohibition against ex post facto laws.
Relevant to the issues in this case, the pretrial
discussions concerning these issues included the following:
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[PILCHER'S ATTORNEY]: [W]e are talking
about rules of evidence, if you can show
that someone else had sexual intercourse
with this [child] and not [Pilcher], then
that shows she is lying, and the case is
Dodson versus Commonwealth[, 170 Va. 630,
196 S.E. 623 (1938)]. It is a case in
Virginia under the old law which deals with
the fact that you can show it for
credibility, even though it is not an issue,
and . . . I mean it otherwise has to be
relevant and admissible, but to the extent
it is relevant and admissible, this Rape
Shield Statute seems to make it excludable.
It is a defense that a person has, and it is
a defense that he would have had, if . . .
otherwise . . . it [is] admissible, that
they are trying to pass a new law to
exclude, and that is what the ex post facto
says you can't.
So I mean what I introduce may or may not
be admissible at the time of the trial,
. . . we don't even know what is coming up.
I mean they don't really know what we are
going to ask her on cross examination . . .
until it happens, but the thing is that from
the point of view of the Rape Shield law,
that has no applicability; that is all I am
saying. The Rape Shield law is . . .
[THE COURT]: Well, what is it that you
think you are going to ask her that is going
to allow you to use testimony of somebody
else?
[PILCHER'S ATTORNEY]: I am not so sure, but
other sexual encounters not with [Pilcher],
that he didn't ever have sexual intercourse
with her. I contend [Pilcher] never had
sexual intercourse with her, ever.
* * * * * * *
And some of the questions could, maybe
won't, but could go into other sexual
encounters with other people, and that is
admissible under Dodson . . . even though
under fifteen and so forth there is no
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consent. That is not an issue, but you can
still show it for credibility, and that case
is right smack on point and holds that.
My only issue here is that the Rape
Shield Statute wouldn't bar me if I am
otherwise going to use it, and that is just
clear. it is on all fours, and that other
case holds that.
* * * * * * *
[PROSECUTOR]: What I am trying to avoid is
a situation in which the witness is asked
questions about her prior sexual history
without having any idea whether it is
objectionable because there has been no
hearing ahead of time.
[JUDGE]: Well, what we will do, you will
put her on direct, see what she says, and we
will take a recess, see what you are going
to ask her, and then I will rule on whether
you can ask her or you can't ask her.
[PILCHER'S ATTORNEY]: . . . I am just
trying to get this straight, insofar as the
pre-trial argument is concerned, that is an
evidentiary procedure that we didn't know,
we didn't use to have to disclose that, what
we are going to do at the trial under the
old rule. That changes the rule of
evidence. . . .
* * * * * * *
My only point is that the Rape Shield
Statute has no application because . . .
[JUDGE]: It doesn't have any application in
a case that doesn't involve rape. 1
1
Neither Pilcher nor the Commonwealth briefed or argued the
issue whether Code § 18.2-67.7, which contains the proviso "[i]n
a prosecution under this article," applies to a prosecution for
incest under former Code § 18.1-191 or to the currently
analogous incest statute of Code § 18.2-366, which is in a
different article than Code § 18.1-191 and Code § 18.2-67.7.
Without any discussion of this issue, both parties appear to
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[PILCHER'S ATTORNEY]: Where the evidence is
otherwise admissible, you don't have to show
prior to the trial admissibility and all of
that, that statute is a change in the rule
of evidence. . . . In other words, it tends
to exclude evidence . . . maybe you can do
it and get it in, but it is a statute to
exclude evidence, and that statute would
then take away from the defense, and . . .
Cu[l]ber[t]son versus Commonwealth, [137 Va.
752, 119 S.E. 87 (1923)], that is clearly on
point, . . . makes it inadmissible. . . .
In Carmell v. Texas, 529 U.S. 513, 529 (2000), the Supreme
Court held that a law was ex post facto when it "changed the
quantum of evidence necessary to sustain a conviction . . .
[such that] under the new law, petitioner could be (and was)
convicted on the victim's testimony alone, without any
corroborating evidence." Reversing the conviction, the Court
ruled that the Texas statute, which changed the law, was "a
sufficiency of the evidence rule . . . [and] does not merely
'regulat[e] . . . the mode in which the facts constituting guilt
may be placed before the jury.'" 529 U.S. at 545 (citation
omitted). In so ruling, however, the Supreme Court held that
"[t]he issue of the admissibility of evidence is simply
different from the question whether the properly admitted
evidence is sufficient to convict the defendant. Evidence
admissibility rules do not go to the general issue of guilt
assume the statute is applicable and that the only issue before
the judge was whether the statute was ex post facto. Thus, we
do not decide whether it was applicable but merely assume for
purposes of deciding this case it does.
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. . . ." 592 U.S. at 546. "[I]t is now well settled that
statutory changes in the mode of trial or the rules of evidence,
which do not deprive the accused of a defense and which operate
only in a limited and unsubstantial manner to his disadvantage,
are not prohibited." Beazell v. Ohio, 269 U.S. 167, 170 (1925).
As the Supreme Court of Virginia has noted, the "rape
shield" law was adopted to "limit or prohibit the admission of
general reputation evidence as to the prior unchastity of the
complaining witness, but . . . [to] permit the introduction of
evidence of specific acts of sexual conduct between the
complaining witness and third persons in carefully limited
circumstances." Winfield v. Commonwealth, 225 Va. 211, 218, 301
S.E.2d 15, 19 (1983). Indeed, the Court further observed that
the "law gives a defendant access for the first time to far more
probative evidence: specific prior sexual conduct with third
persons, if it is relevant for the purposes set forth in Code
§ 18.2-67.7." Winfield, 225 Va. at 220, 301 S.E.2d at 20. Thus,
to the extent that Pilcher contends the statutory change affects
the rules of evidence, we note that the United States Supreme
Court also has held that "the prescribing of different modes or
procedure . . . , leaving untouched all the substantial
protections with which the existing law surrounds the person
accused of crime, are not considered within the constitutional
inhibition." Duncan v. Missouri, 152 U.S. 377, 382-83 (1894).
Likewise, "[s]o far as mere modes of procedure are concerned a
party has no more right, in a criminal than in a civil action,
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to insist that his case shall be disposed of under the law in
force when the act to be investigated is charged to have taken
place." Mallett v. North Carolina, 181 U.S. 589, 596-97 (1901)
(citation omitted).
Applying these ex post facto principles to this case, we
hold that Pilcher has not demonstrated that the statute affected
his substantive rights, and we further hold that it is not an ex
post facto law as applied in this case. In so holding, we note
that courts of other jurisdictions, when confronted with similar
ex post facto arguments in regard to rape shield statutes, have
reached the same result. See Turley v. State, 356 So.2d 1238,
1243-44 (Ala. App. 1978) (holding that a rape shield statute was
not ex post facto when it barred evidence of a prior sexual
relationship that was admissible before enactment of the
statute); People v. Dorff, 396 N.E.2d 827, 885-86 (Ill. App.
1979) (holding that a statute is not ex post facto when it
created an "alteration in rules of evidence . . . [, which]
served only to prevent use of certain evidence relating to the
alleged victim's credibility, and had no bearing upon evidence
relating to the crime itself"); Finney v. State, 385 N.E.2d 477,
480-81 (Ind. App. 1979) (holding that the "rape shield statute
affects the use of character evidence to impeach witnesses . . .
and is therefore procedural in nature").
We further note that when the witness testified at trial
Pilcher did not request a recess and did not make the requisite
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showing of relevance of the testimony outside the jury's
presence. Thus, despite Pilcher's suggestion that Code
§ 18.2-67.7 barred the evidence, the real cause of the exclusion
in this case was his failure to follow the statute's procedures.
IV.
Pilcher contends the application of Code § 19.2-295.1 in
this prosecution was ex post facto because it permitted
"different testimony from what was permitted at the time of
commission of the crime." Pilcher argues that the statutory
requirements -- that the jury is required to ascertain
punishment in a separate proceeding -- is a change in the rules
of evidence, which violates the prohibition against ex post
facto laws.
In pertinent part, the statute provides that "[i]n cases of
trial by jury, upon a finding that the defendant is guilty of a
felony, . . . a separate proceeding limited to the ascertainment
of punishment shall be held as soon as practicable before the
same jury." Code § 19.2-295.1. Before the statute's enactment,
a jury in a non-capital trial considered a defendant's guilt and
punishment in one proceeding. See Riley v. Commonwealth, 21
Va. App. 330, 337, 464 S.E.2d 508, 511 (1995). "The purpose of
the bifurcated trial is to allow the trier of fact to consider
the prior . . . record of the accused for sentencing purposes
while avoiding the risk of prejudice to the accused when
determining guilt or innocence." Byrd v. Commonwealth, 30
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Va. App. 371, 373, 517 S.E.2d 243, 244 (1999) (citation
omitted).
Pilcher argues that a bifurcated trial gives the
Commonwealth a "substantive advantage" because the jury has to
determine guilt or innocence without knowing the range of
punishment available. He contends that in some cases, if jurors
know how severe the punishment could be, they would change their
votes from guilty to not guilty. Thus, he concludes the
application of Code § 19.2-295.1 to this case violated the ex
post facto clause because in 1969, the jurors were aware of its
sentencing options while determining guilt.
"Although the Latin phrase 'ex post facto' literally
encompasses any law passed 'after the fact,' it has long been
recognized by [the Supreme] Court that the constitutional
prohibition on ex post facto laws applied only to penal statutes
which disadvantage the offender affected by them." Collins, 497
U.S. at 41. As we noted earlier, no ex post facto violation
occurs if the change effected by the law is merely procedural
and does "not increase the punishment nor change the ingredients
of the offence or the ultimate facts necessary to establish
guilt." Hopt, 110 U.S. at 590. The prohibition against ex post
facto laws was "intended to secure substantial personal rights
against arbitrary and oppressive legislative action." Malloy v.
South Carolina, 237 U.S. 180, 183 (1915).
Under a similar rationale, this Court has held that Code
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§ 19.2-295.1 is not an ex post facto law. Bunn v. Commonwealth,
21 Va. App. 593, 598, 466 S.E.2d 744, 746 (1996). We ruled that
the enactment of Code § 19.2-295.1 and its application do not
violate ex post facto protections because the statute "'does not
punish as a crime an act previously committed, which was
innocent when done; nor make more burdensome the punishment for
a crime, after its commission; nor deprive one charged with [a]
crime of any defense available according to law at the time when
the act was committed.'" Id. (quoting Collins, 497 U.S. at 52).
See also Riley, 21 Va. App. at 337, 464 S.E.2d at 511 (noting
that the statute is procedural in nature and "does not convey a
substantive right"). Therefore, we hold the statute did not
affect the substantive rights of Pilcher and is not an ex post
facto law.
V.
In summary, we hold that the procedural changes wrought by
Code § 18.2-67.7 and Code § 19.2-295.1 do not implicate the
prohibition on ex post facto laws. As the Supreme Court held
long ago,
alterations which do not increase the
punishment, nor change the ingredients of
the offence or the ultimate facts necessary
to establish guilt . . . relate to modes of
procedure only, in which no one can be said
to have a vested right, and which the State,
upon grounds of public policy, may regulate
at pleasure.
Hopt, 110 U.S. at 590 (emphasis added).
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For these reasons, we affirm the convictions.
Affirmed.
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