Irving William Vance v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia
IRVING WILLIAM VANCE
MEMORANDUM OPINION * BY
v. Record No. 2450-00-4 JUDGE SAM W. COLEMAN III
JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
Todd G. Petit (Office of the Public Defender,
on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Irving Vance was convicted of rape and abduction. On appeal,
Vance contends the trial court erred by (1) failing to strike
juror Hansen for cause; (2) admitting certain testimony of
Detective Colligan; and (3) admitting into evidence the victim's
jogging pants. Finding no reversible error, we affirm.
BACKGROUND
Vance was indicted for rape and abduction. At trial, the
victim testified that while she was jogging, Vance called to her
and made lewd comments. A short time later, Vance approached
her and asked for her telephone number. The victim ignored him
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and continued running. As the victim neared her residence,
Vance grabbed her and banged her face against a wall. He tried
to cover the victim's mouth, but she was able to scream for
help. Vance used a knife and gun to force the victim to a
secluded area behind a dumpster, where he raped her.
Vance testified that he approached the victim with the
intention of asking her for her telephone number. He said he
placed his hand over her mouth because she initially screamed.
According to Vance, the victim stopped screaming after he
indicated his purpose for approaching her. Vance claimed they
talked a while, after which the victim agreed to go with him
across the street to have consensual sexual intercourse.
REFUSAL TO STRIKE JUROR HANSEN FOR CAUSE
During voir dire, prospective juror Hansen indicated that
he works with a "sexual assault prevention team" at the
University of Virginia. Members of the team work with sexual
assault victims on campus, and they give presentations on how to
work with sexual assault victims. Appellant's attorney engaged
in a lengthy colloquy with Hansen during which Hansen agreed
that he would be sympathetic toward a person making an
accusation of rape, but that he could be impartial in
considering the evidence.
The trial court ruled that appellant failed to show that
Hansen could not "sit as an impartial juror." The trial court
expressly noted "two instances" in which Hansen stated in
- 2 -
response to non-leading questions that he could be impartial and
would not treat the victim's testimony any differently than any
other witness.
An accused is constitutionally guaranteed the right to trial
by "an impartial jury." U.S. Const. amends. VI, XIV; Va. Const.
art. I, § 8; see Code § 8.01-358; Rule 3A:14. "Trial courts, as
the guardians of this fundamental right, have the duty to procure
an impartial jury." Griffin v. Commonwealth, 19 Va. App. 619,
621, 454 S.E.2d 363, 364 (1995).
"[W]e review a trial court's decision whether to strike a
prospective juror for cause for an abuse of discretion and that
ruling will not be disturbed on appeal unless it appears from
the record that the trial court's action constitutes manifest
error." Cressell v. Commonwealth, 32 Va. App. 744, 755, 531
S.E.2d 1, 6 (2000).
"The standard to be applied by the trial
court in determining whether to retain a
venireman on the jury panel is whether his
answers during voir dire examination
indicate to the court something that would
prevent or substantially impair the
performance of his duties as a juror in
accordance with his instructions and his
oath."
Moten v. Commonwealth, 14 Va. App. 956, 958, 420 S.E.2d 250, 251
(1992) (quoting Eaton v. Commonwealth, 240 Va. 236, 246, 397
S.E.2d 385, 391 (1990)).
A review of the entire voir dire fails to show that the
trial court erred in refusing to strike Hansen for cause.
- 3 -
Hansen twice stated he could be impartial and explained what he
felt it means to be impartial. He further stated that he could
apply the presumption of innocence and listen objectively to all
of the evidence despite his training and experience. On this
record, the trial court did not abuse its discretion by refusing
to strike Hansen.
DETECTIVE COLLIGAN'S TESTIMONY
The victim testified that she did not voluntarily accompany
Vance behind the dumpster or consent to have sexual intercourse
with him. She also testified that she screamed several times
during the attack, but to no avail.
Thereafter, the Commonwealth's attorney called Detective
Colligan as a witness. Colligan previously patrolled the
neighborhood where the attack occurred. He had maintained
weekly contact with the area and its residents after becoming a
detective. The Commonwealth's attorney asked Colligan about the
character of the neighborhood in which the incident occurred and
the ethnic makeup of its residents. Appellant objected to the
testimony on the grounds of relevance and undue prejudice.
The prosecutor argued that the evidence was relevant to
explain why the victim's screams and calls for help may not have
been heeded. The trial court ruled that the evidence "has some
relevance" and "it's not so prejudicial that it's outweighed by
the relevance."
- 4 -
Colligan then testified that "[i]t's a busy neighborhood as
far as calls for service are concerned." He added that a large
majority of the residents in the area are Hispanic.
"'Evidence is relevant if it tends to establish the
proposition for which it is offered.'" Evans-Smith v.
Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987)
(citation omitted). "'Upon finding that certain evidence is
relevant, the trial court is then required to employ a balancing
test to determine whether the prejudicial effect of the evidence
sought to be admitted is greater than its probative value.'"
Braxton v. Commonwealth, 26 Va. App. 176, 186, 493 S.E.2d 688,
692 (1997) (citations omitted). On appeal, a trial court's
ruling that the probative value outweighs any incidental
prejudice will be reversed only on a clear showing of an abuse
of discretion. See Ferrell v. Commonwealth, 11 Va. App. 380,
390, 399 S.E.2d 614, 620 (1990).
Appellant was on trial for rape and abduction with intent
to defile. To prove rape, the Commonwealth had to prove that
appellant "engag[ed] in sexual intercourse with the victim,
against her will, by force, threat, or intimidation." Clifton
v. Commonwealth, 22 Va. App. 178, 184, 468 S.E.2d 155, 158
(1996) (emphasis added) (citing Code § 18.2-61(A)). Based on
Vance's pretrial assertions that he and the victim engaged in
consensual intercourse and Vance's extensive cross-examination
challenging the victim's claims that she screamed in vain for
- 5 -
help, the Commonwealth undertook to explain through Colligan's
testimony why no one understood the victim's screams for help or
responded to her screams. The Commonwealth argued that, because
numerous crimes are reported in the area, residents might be
accustomed to hearing screams or be reluctant to respond to
them. Additionally, the Commonwealth suggested that the
predominantly Hispanic residents may not have understood the
victim's calls for help.
Because the Commonwealth had the burden to prove that
sexual intercourse was accomplished against the victim's will
and because Vance maintained that the incident was consensual,
Colligan's testimony was relevant to the issue of whether the
sexual intercourse was consensual or accomplished against the
victim's will by force. Colligan's testimony tended to provide
an explanation why no one responded to the screams and thereby
tended to rebut appellant's claim of consent. We are not
persuaded by appellant's argument that the proof that the
neighborhood had a high incidence of "calls for service" was
irrelevant and prejudicial in that the jury might consider him
guilty by association. The fact that the area experienced a
large number of reported crimes was not prejudicial and did not
tend to prove that Vance was guilty of rape merely because he
was in the neighborhood, as Vance contends. Accordingly, the
trial court did not abuse its discretion by admitting the
evidence.
- 6 -
THE JOGGING PANTS
Appellant contends the trial court erred by admitting into
evidence the victim's jogging pants. He argues the Commonwealth
failed to establish a "proper foundation and chain of custody"
in that the Commonwealth failed to prove that the jogging pants
were in the same condition as they were in following the alleged
sexual assault. Secondly, appellant asserts that the evidence
failed to establish an unbroken chain of custody as to those
persons who handled the jogging pants from the time that the
victim relinquished them to the authorities until they were
admitted at trial. Specifically, appellant contends that the
detective who introduced the pants at trial testified he
received them from the sexual assault nurse at Fairfax Hospital,
however, the nurse never testified as to how long she had the
pants, or what she did with them, or how she came to possess
them. Thus, argues appellant, the jogging pants should not have
been admitted into evidence.
At trial, the victim identified the jogging pants as those
she wore the night she was abducted and raped. She testified
that she "came home . . . [and] changed from these gray pants to
another pair of gray sweatpants" and explained they "were
immediately taken by a police officer." While the evidence does
not establish whether the detective who received the jogging
pants from the sexual assault nurse at the hospital was the same
officer the victim said received the pants at her house, in
- 7 -
either event the evidence proves the detective received them on
the evening of the assault from the victim or in her presence
soon after the rape.
No forensic evidence was introduced concerning the jogging
pants. Although no witness testified about grass stains on the
jogging pants, apparently two small grass stains were on the
pants. The Commonwealth's attorney made no comment about the
grass stains and made no argument that grass stains on the
jogging pants were evidence of a forcible rape rather than
consensual sexual intercourse. No evidence established that the
stain was relevant to this incident. Defense counsel, during
closing argument, made the only comment about grass stains on
the jogging pants, arguing that the presence of "only two small
grass stains" was consistent with consensual sex where the pants
evidenced no rips, tears or large stains as would be expected
with a violent assault. In rebuttal to that argument, the
Commonwealth's attorney's sole comment and argument concerning
the jogging pants was related to an explanation about how the
rape could have been accomplished by only partially removing the
"very small" jogging pants.
"[T]he chain-of-custody standard announced in Robinson [v.
Commonwealth, 212 Va. 136, 183 S.E.2d 179 (1971),] does not
necessarily apply to a physical exhibit offered as demonstrative
evidence as distinguished from an exhibit offered as a basis for
a chemical analysis or the opinion testimony of an expert
- 8 -
witness." Jones v. Commonwealth, 228 Va. 427, 442, 323 S.E.2d
554, 562 (1984). In a strikingly similar case, the Supreme
Court said in Whaley v. Commonwealth, 214 Va. 353, 357, 200
S.E.2d 556, 559 (1973), that when "the article of clothing . . .
in question, having been identified by the victim, had been
admitted in evidence only to establish what [the victim] was
wearing when she was attacked, there would have been no error in
their admission." In Whaley, also an appeal from a rape
conviction, the trial court admitted into evidence a pair of
undershorts taken from the defendant which contained red smears
that appeared to be blood. There the Commonwealth did not seek
to introduce a chemical or other technical analysis to prove
that the smears on the defendant's undershorts were the victim's
blood. The Commonwealth in Whaley did not have each person who
had handled the undershorts testify to the chain of custody.
Rather, the officer who received the shorts from the defendant
merely identified them as having been received from the
defendant. The Court held that the undershorts were
sufficiently identified as those worn by the defendant at the
time of the assault to be admitted into evidence. When the
relevance of the evidence is solely to prove that the item of
clothing is the same item worn by either the victim or the
defendant at the time of the attack, and not for the foundation
of introducing into evidence a chemical analysis, the
- 9 -
Commonwealth need only establish that the item of clothing is
the same and that it is substantially in an unchanged condition.
Here, the victim identified the jogging pants as the ones
she wore that night. Those pants were a physical exhibit
offered as demonstrative evidence for that limited purpose
rather than as the basis for scientific or expert evidence. Cf.
Jones, 228 Va. at 442, 323 S.E.2d at 562. "The [pants] were
admitted in evidence to show that they were worn . . . at the
time the rape was committed." Whaley, 214 Va. at 357, 200
S.E.2d at 559. The Commonwealth's attorney did not argue that
the grass stains or condition of the jogging pants proved a
forcible rape. He only argued about the relationship of the
pants to the underpants and the ease of removing the underpants.
The implication from the victim's and detective's testimonies is
that the jogging pants were in a "substantially unchanged
condition when admitted at trial and when delivered to the
detective.
On the other hand, defense counsel argued the small grass
stains on the jogging pants without tears or significant
additional stains tended to prove that the intercourse was
consensual rather than forcible. Thus, appellant has failed to
establish how he was prejudiced by the admission of this
demonstrative evidence. See Clagett v. Commonwealth, 252 Va.
79, 91, 472 S.E.2d 263, 270 (1996) (requiring a showing of
- 10 -
prejudice for erroneously admitted evidence to be deemed not
harmless).
For the foregoing reasons, the judgment of the trial court is
affirmed.
Affirmed.
- 11 -