Terry Feeback v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
TERRY FEEBACK
MEMORANDUM OPINION * BY
v. Record No. 2469-95-1 JUDGE ROSEMARIE ANNUNZIATA
MAY 13, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
J. Roger Griffin, Jr. (Christie & Kantor, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a jury trial, appellant, Terry Feeback, was
convicted of rape. On appeal, he contends the trial court erred
in allowing the jury to hear certain statements made during his
interrogation concerning the alleged crime. Finding no error in
the trial court's admission of the statements, we affirm.
I.
Kimberly Chapman testified that she met appellant and his
friend, Joshua Angel (Josh), at a Virginia Beach bar. Chapman,
who had been drinking, discussed "doing drugs" with appellant and
Josh. Chapman, appellant and Josh left the bar and proceeded to
a hotel room, intending to smoke crack cocaine. Chapman
testified that she had money to pay for the drugs, and she denied
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant's contention that she had offered to perform sexual
acts with appellant and Josh in return for drugs or money. At
the hotel room, Chapman placed a telephone call, attempting to
obtain some crack. When it became evident that she would be
unable to obtain any crack, Chapman attempted to leave.
Chapman testified that as she moved toward the door,
appellant pushed her back onto the bed. Appellant threatened
Chapman and told her he wanted her to perform oral sex on him.
While Josh restrained Chapman's arms, appellant removed her
shorts and Chapman performed oral sex on appellant. Chapman
testified that, during these events, appellant continually struck
her on the head and called her a "crack whore." Appellant also
attempted to insert his penis in Chapman's vagina, but his
attempts to have intercourse with Chapman were short-lived
because of a failed erection. Appellant continued to threaten
and curse Chapman during these efforts. When appellant stopped,
he ordered Chapman to "please" Josh. Josh penetrated Chapman's
vagina with his penis. Meanwhile, appellant sat on the bed
behind Chapman's head; he later sat in a chair to the side of the
bed. When Josh's intercourse with Chapman ended, appellant
stated that he intended to phone the front desk to complain about
Chapman soliciting sex. Chapman gathered her clothes and left.
Chapman's complaint of rape was corroborated by the investigating
detective and the emergency room nurse to whom she was referred.
Some hours later, appellant was interrogated by Detective
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Ball. Appellant told Ball that he and Josh met Chapman at a
Virginia Beach bar and that the three of them returned to the
hotel room. He stated that Chapman sought to "sell herself" to
the two men upon reaching the doorway of the room. He stated
that he then called security, and Chapman ran away. Ball then
stated, "[w]ell, she's claiming that she was raped by your buddy
and orally sodomized by you." Appellant responded, "[t]o my
knowledge there was no sex whatsoever that went on in that room."
Appellant again stated that Chapman needed money and that she
had attempted to sell herself.
Appellant then stated that Chapman had first attempted to
sell herself upon exiting the bar, and he subsequently
acknowledged that Chapman came inside the hotel room to place a
call, attempting to obtain crack. Appellant also stated that
Chapman remained in the room for an hour but that he went to
sleep. Ball then commented, "[w]ell, according to other people,
you were awake." When Ball asked whether Josh had sex with
Chapman, appellant responded that he did not know. Ball
responded, "He's already told me he did. Okay? . . . Now, tell
me what happened."
Appellant denied having sex with Chapman but admitted having
oral sex with her. Appellant stated that he could not get an
erection, so that was the end of his "deal." Although he
acknowledged that Josh and Chapman then had sex, he maintained
that the sex was consensual and that Chapman wanted the men to
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buy her crack in exchange for sex. Appellant told Ball that
Chapman became upset and demanded to be paid for the sexual acts
when it became apparent to her that the crack deal would not go
through. He stated that he told Chapman to leave and called the
front desk to assure her departure. Ball stated, "Well, I've
heard it differently than what you're telling me . . . . [T]hat's
not what she told me. That's not what Josh told me," but
appellant maintained his account of the events.
In response to further questions from Ball, appellant denied
having hit or threatened Chapman. Continuing the interrogation,
Ball then stated, "Josh has told me pretty much similar to what
she's told me, and . . . you're telling me something a lot
different than what they've told me." When appellant continued
his denials, Ball left to interview Josh for the first time.
Upon returning from interviewing Josh, Ball told appellant,
"I just got done talking to Josh again. Okay. And he's really
upset. He's over there crying like I've never seen a man cry
before. . . . [H]e's pretty much told me everything and he's
hoping that you'll do the right thing." Ball then stated,
"[Josh] told me you hit her." In response, appellant admitted
that he struck Chapman once on the head but stated he was just
"joking around." Appellant also admitted that he attempted to
insert his penis in Chapman's vagina but stated he could not get
an erection; he further admitted that he and Josh had sex with
Chapman at the same time but stated he did not remember Chapman
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being upset or afraid. To appellant's latter contention, Ball
responded, "Josh does." Appellant then admitted having smacked
Chapman another time but characterized the smack as foreplay.
Ball continued by telling appellant that Josh was "so sick," that
"he's worked himself up into such a tizzy and -- and he feels
really bad about it, and I think he's sincere." Appellant
responded by admitting that he inserted his penis into Chapman's
mouth and told her to perform oral sex on him a second time from
the back of the bed, while Josh was penetrating her vagina.
When appellant denied the use of force, Ball asked, "Well,
why was Josh trying to tell her . . . do what he says?"
Appellant again denied using force, but he admitted he could have
been a "little mean," raising his voice when he told Chapman to
perform oral sex on him and calling her a whore. Appellant also
admitted telling Chapman to perform oral sex on Josh and that he
may have hit Chapman more than twice.
II.
Appellant contends that the trial court erred in allowing
the jury to hear the statements made and questions posed by Ball
during the interrogation which related the alleged statements of
Josh and Chapman. Specifically, he contends that those
statements were inadmissible hearsay and "highly prejudicial"
and, therefore, should have been redacted from the presentation
to the jury. 1 We disagree.
1
The Commonwealth argues that appellant is procedurally
barred from raising a constitutional claim. However, we do not
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While Virginia courts have not addressed the precise issue
before us, we find the controlling principle well articulated in
Atkins v. Commonwealth, 13 Va. App. 365, 412 S.E.2d 194 (1991).
Whether statements which draw responses are
inadmissible as hearsay depends upon the
nature of the statements. Words which
constitute a question or accusation that
result in a party admission are not barred by
the hearsay evidence rule. It is only when
the prompting statements have the quality of
evidence (offered for the truth of the matter
asserted) that they become inadmissible
hearsay.
Id. at 368, 412 S.E.2d at 196 (citing Tellis v. Traynham, 195 Va.
447, 453, 78 S.E.2d 581, 584 (1953)); see also State v. Miller,
921 P.2d 1151, 1159 (Ariz. 1996) (declarant's statement, made
during course of interrogation, admitted to show effect on
defendant during interrogation, not for its substantive content
and therefore not hearsay); Williams v. State, 669 N.E.2d 956,
958 (Ind. 1996) (declarant's statements largely designed to
prompt defendant to speak held not to be hearsay; "it was the
statements made by [defendant] that really constituted the
evidentiary weight of the conversation"); Worden v. State, 603
So. 2d 581, 583 (Fla. App. 1992) (questions propounded and
statements of detectives not offered for their truth, but to
place defendant's answers in context).
(..continued)
read appellant's brief to assert a constitutional claim
independent of his hearsay contention. Appellant simply frames
his hearsay argument, in part, in terms of the right to confront
witnesses, a right necessarily affected by the admission of
hearsay evidence.
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The statements at issue in the present case were not offered
for the truth of the matter asserted. Rather, they were offered
to show the prompts to appellant's statements and the context of
the interrogation, throughout which, appellant's version of
events changed dramatically. As such, the statements were not
objectionable as hearsay. See Atkins, 13 Va. App. at 368, 412
S.E.2d at 196.
It remains only to determine whether the probative value of
the statements is outweighed by the harm or prejudice to
appellant. See Worden, 603 So.2d at 583. We find that
appellant's case was not prejudiced by the admission of the
statements. "Since the questions were set forth in their proper
context, interrogation of a suspected [rapist], we conclude that
a rational jury would understand that law enforcement officers
use many techniques to secure confessions and that the methods
used here were indicative of that." Id. Indeed, Ball admitted
on cross-examination that she spoke to Josh for the first time
when she left in the midst of appellant's interrogation. As
such, the jury was fully aware that Ball's statements concerning
what Josh had told her prior to that point were subterfuge.
Furthermore, appellant's own statements ultimately established
the material facts asserted in the statements he challenges. By
the end of the interrogation, appellant acknowledged having
struck Chapman at least twice and having spoken to her in a
"mean" tone as he told her to perform oral sex on him. On all
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material points, appellant's ultimate statements corroborated
Chapman's testimony.
The decision of the trial court is accordingly affirmed.
Affirmed.
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