Elvis Quinn Washington v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Retired Judge Trabue *
Argued at Norfolk, Virginia
ELVIS QUINN WASHINGTON
v. Record No. 0589-94-1 MEMORANDUM OPINION** BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA MAY 23, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Richard A. Monteith (Monteith & Harding, on
brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Elvis Quinn Washington contends (1) that the trial court
abused its discretion by allowing the Commonwealth to forecast
the testimony of its expert witness, Dr. de Triquet, during its
opening statement, and (2) that he was denied his right to a
public trial when the courtroom was closed during the victim's
testimony. We find no error and affirm the judgment of the trial
court.
Between March 16 and May 22, 1992, Washington raped his
thirteen year old daughter nine times. The victim reported this
to a teacher who alerted the police. During a pretrial
conference, the trial court presented a letter from Kathryne B.
*
Retired Judge Kenneth E. Trabue took part in consideration
of this case by designation pursuant to Code § 17-116.01.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Hubbard, the victim's therapist at Ghent Psychological Practices,
recommending that the victim not be required to testify in open
court because "[h]er mental health is at risk." Washington
objected on Sixth Amendment grounds that closure of the trial
during the victim's testimony would deny his right to a public
trial. The trial court granted the Commonwealth's motion to
close the courtroom during the victim's testimony.
By motion in limine, Washington objected to the testimony of
Dr. de Triquet, who was to testify that the victim's "female
anatomy was non-virginal" when he examined her sixty days after
the last rape. The court overruled the objection and found the
testimony relevant and admissible.
Washington first contends that the court abused its
discretion by allowing the Commonwealth to forecast the testimony
of Dr. de Triquet in its opening statement.
We will not consider on appeal an argument that was not
presented to the trial court. Jacques v. Commonwealth, 12 Va.
App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18).
Washington made no objection to that part of the Commonwealth's
opening statement, nor did he object at any time. Accordingly,
Rule 5A:18 bars our consideration of this issue.
Washington next contends that he was denied his right to a
public trial granted under Article I, § 8, of the Virginia
Constitution and the Sixth Amendment of the United States
Constitution when the courtroom was ordered closed during the
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victim's testimony. We disagree.
Although the record discloses that the trial court ordered
the courtroom doors locked while the victim testified, the record
does not disclose who remained in the courtroom during this
period. Thus, the record does not disclose that Washington was
denied a public trial.
Furthermore, the trial court did not err in closing the
courtroom during the victim's testimony. Given the nature of the
offense, the victim's age, and the fact her therapist declared
"[h]er mental health to be at risk," the trial court determined
there was an "overriding interest" justifying the closure of the
courtroom. Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210,
2216 (1984). We perceive no abuse of discretion in that ruling.
The judgment of the trial court is affirmed.
Affirmed.
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