*1 present to this may then come Court Thus, summary judgment. against action, majority’s ignoring addition law, appel- of its
existing deprives this Court role, abrogates the circuit and further
late impression. as court of first
court's role
Therefore, respectfully I must dissent.
STATE of West
Below, Appellee,
v. Lynn CALLOWAY, Defendant
Ronald
Below, Appellant.
No. 26204.
Supreme Appeals Court of Virginia.
West 3, Nov. 1999.
Submitted 16, 1999.
Decided Dec.
Concurring Opinion of Chief Justice Jan.
Starcher
45 *2 General, Charleston,
ney Virginia, West At- torneys Appellee.
McGRAW, Justice: *3 Calloway Defendant Ronald was convicted August 1998 on six counts of second-de- assault, gree § W. 61-8B-4 Va.Code (1991), daytime entering and one count of 61-3-ll(b) breaking, § without W. Va.Code (1993), in episode connection with an where home, way he forced his into a woman’s severely attempted beat her when she escape, engage repeated and forced her to Calloway appeal acts oral sex.1 asserts on improperly circuit court excluded Rape-Shield DNA our evidence under Stat- ute, (1986), W. Va.Code 61-8B-11 which purportedly exculpatory evidence was in that possible it excluded him as a source semen found no on the bed. We find merit argument evidentiary in this because the proffer made below never indi- deposited cated that the semen was in con- rather, question; nection the incident in pur- this evidence was offered for the sole pose impeaching by the victim’s demonstrating relationship that a sexual ex- victim isted between the and another individ- boyfriend. alleged Consequent- ual be ly, properly this excluded under Statute. We therefore af- Shield Calloway’s firm conviction.
I. FACTUAL BACKGROUND case, A.H.,2 victim in The testified trial that a knock on her she awoken morning August door at 3 on a.m. Castelle, Mickenberg, Esq., George Ira Looking through adjacent 1995.3 a window Charleston, Esq., Virginia, Attorneys West door, Calloway, she observed who was Appellant. asking apparently for an individual who had McGraw, Jr., General, Attorney previously. Darrell V. A.H. told the lived the house Allen, Managing Deputy person looking Barbara H. Attor- defendant that the he was was sentenced to six concurrent ten- 3. A.H. indicated that she lived in a small alone to-twenty year imprisonment Charleston, terms of on the Virginia, house in West and that she convictions, sexual assault tively to be served consecu- had moved to that location three weeks year burglary with a one-to-ten term on the before the attack. conviction. 2. Because of the sensitive of the facts nature case, identify involved in this we the victim in only. this case initials there; hitting wall. could see her own blood longer and when he asked
no lived taxi, her back into the had no The defendant then forced call a she indicated left, pillow living room and shoved her face into a A.H. telephone. returned point diffi- on the bed to the where she had to bed. culty breathing. victim that be- The stated a.m. and 7 a.m. the same Between 6:30 cause she was fearful that defendant was by a morning, again A.H. roused knock her, agreed smothering to do whatever opened A.H. the door on the door. This time Calloway wanted. was, explaining that inquiring who it without engage A.H. The defendant then forced mother, whom assumed it was either her sex, during alternating rounds of oral thought might stopping to take her be *4 in placed finger which his the victim’s he hospital, a grandmother at the or to see her vagina Calloway finally in- and anus. When stopped by with sometimes male friend who intercourse, pleaded for A.H. dicated a desire Instead, way she on his to work. breakfast exhaustion, and if she could rest. The asked by man the same who had visited was faced her, trapping defendant laid down next to the again told door four hours before. She her leg placing victim his arm and over her. looking person that the he was the defendant waiting Calloway asleep, to fall After there, longer began to for no lived and close twenty slowly moving spent A.H. minutes his A.H., According Calloway the door. her, leg arm off of and ran for and then the way into and locked the forced his the house According testimony, ran door. to her she him. stated that he then door behind She alley neighbor, down an until she found a tanktop shirt over his pulled his sleeveless who took her into his home and called the identity, not to obscure his and told her head police. to scream. from Officers the Charleston Police De- forcing way into the victim’s After his partment responded and were directed home, Calloway began making vulgar sexual house, they Calloway A.H.’s where found still A.H., and asked her if she comments toward asleep pulled with a shirt his red over face. (she no). any Shortly crack cocaine said had testing Forensic later identified traces of afterward, elementary-school A.H. heard Calloway’s A.H.’s blood on shorts and under- adjacent alleyway, walking down children the Also, on wear. A.H.’s blood found the keep quiet. and the defendant told her floor walls front door of and near the the victim, Calloway According then to the physician who victim house. The treated the (where living into the room forced her transported hospital, after she was Dr. mattress), and sleeping on a futon had been Skinner, Lisa testified that A.H. suffered a penis from his insisted that she remove his fracture, bruising as well as and a vertebral point shorts. A.H. testified that at injury bite-related to the shoulder. Dr. pillow, for a hammer under her and reached Skinner also testified that she found no evi- swung all at up “stood and at head his forcibly pen- that victim had been just go so I same time. saw him over etrated. I ... him.” ran for assumed that hit She door, Calloway’s theory caught but her as of the case was that he the defendant ensued, previous night, had opening struggle it. A ac- and A.H. met the and A.H., gone crack cording to maintained a firm to her house to smoke cocaine. where she boy- Calloway’s argued The that the victim’s grip on both the doorknob defense stopped following exposed penis, repeatedly struck friend at the house the while he morning, enraged upon seeing placing and bit her her became Callo- her shoulder after house, way asleep that in the and inflicted the victim testified one headlock.4 The around, on A.H.5 eventually spun and she wounds later observed blow brief, trial, argued presenting argued In his indicates that he 4. The State without issue, sexually possibly testimony assaulted expert a bite mark on at trial that A.H. was on boyfriend. (represented photo- supposed Our review of the in a the victim's shoulder however, dentition, record, sugges- graph) in that indicates that no such matched defendant's fact, jury. Calloway missing ever made before the certain teeth. tion was Instead, salient assessed but the circuit court testify at trial. makes seri- did not (1) weighing ous supporting his mistake them.” Id. at 520 n. among Calloway’s at 179 n. 6. pipe” found be- S.E.2d “crack positive subsequently tested longings, which (2) cocaine; victim’s statement that III. stopped friend sometimes male (3) work; way on his
breakfast
DISCUSSION
police
who stated
arresting
from
officers
appeal
The sole issue raised in this
injuries
or
they
did not observe
Calloway’s
assertion
Calloway’s body6; and
the tes-
blood on
excluding
deoxyribo-
erred
the results of
timony
sole witness at
of the defendant’s
(DNA) testing performed
nucleic acid
on a
trial,
Gibson,
neighbor
who stated
Debra
mattress,
on
stain found
futon
previously
drug-relat-
observed
presence
which indicated the
of semen that
(she did not
activity at the victim’s house
ed
could not have come from the defendant.
activity was contem-
indicate whether such
were, however,
genetic
A.H.’s
markers
found
occupancy),
who
poraneous with A.H.’s
stain, suggesting
that it
was the result
hearing
alleyway
voices from the
testified
having
of her
had sex
another individu-
*5
adjacent
at
11
to the victim’s home
both
al.
asserts
such evidence was
night
question.
in
p.m. and 3 a.m. on the
exculpatory in that it demonstrates that he
person
sexually
was not the
who
assaulted
II.
victim,
the
and that the trial court’s exclusion
(1)
applica-
of this
an
evidence
erroneous
REVIEW
STANDARD OF
Statute,
Rape-Shield
tion of the
W. Va.Code
evidentiary
This Court’s review of
(1986),
§ 61-8B-11
because the evidence falls
by
highly
trial
is
rulings made
court
defer
exception
under an
set forth in W.
R.
Va.
action of a trial
in admit
ential: “The
court
404(a)(3) pertaining
Evid.
to acts
related
excluding
in
ting or
evidence
the exercise of
(2)
offense;
charged
and
the
to the extent
its
will not be disturbed
the
discretion
that such evidence was excludable under the
appears
that such
appellate court unless
statute,
ruling
such
was an unconstitutional
an
of discretion.”
action amounts to
abuse
Statute,
application
Shield
in
10,
55,
Syl. pt.
Huffman,
v.
141 W.Va.
State
right
it violated his constitutional
(1955),
541
overruled on other
87 S.E.2d
present a
trial.
defense
We consider
Bedell, 192
grounds, State ex rel. R.L. v.
arguments in turn.
these
(1994);
435,
W.Va.
W.Va. explained Gentry Mangum, 195 v. W.Va. Rape-Shield Statute 512, (1995), general, an “[i]n 466 171 S.E.2d recently syllabus point stated in abuse of discretion occurs when material We Guthrie, 326, weight ignored, 1 205 deserving significant factor is of State v. W.Va. (1999), upon, § that “W. improper an factor is relied or S.E.2d 83 Va.Code 61-8B- when 11(b) (1986)7 improper bars introduction of proper when all and no factors are the evi- 61-8B-11(b) provides: making put W. its case the defense considerable Va.Code any physical emphasis on the absence of direct any prosecution In under this article evi- of sexual assault. evidence specific dence of instances of the victim’s sexu- persons al conduct with other than the defen- Calloway’s primary stratagems 6. One of at trial dant, opinion evidence of the victim’s sexual point shortcomings out in the State's was to reputation conduct and evidence of the vic- example, it was shown forensic evidence. For conduct shall not be tim’s sexual admissible: that his shirt and tennis shoes were not tested for Provided, (both That such evidence shall be admissi- apparently accompanied had him to blood solely purpose impeaching the of ble credi- jail), found under the vic- and that no skin was bility, previ- if the victim first makes his or her fingernails. tim's The defense also stressed that presence ous sexual conduct an issue in the trial had failed to test for the of State introducing vaginal respect evidence with taken from the victim. thereto. saliva on swab 404(a)(3),8 per- dence, ute contained in Rule which prosecution, assault con- in a sexual (1) prior conduct if it is of the victim’s mits evidence of sexual cerning specific instances specifically act for which a persons than the related other sexual conduct (2) charged. defendant, Specifically, he as- of the victim’s defendant opinion evidence (3) reputation of serts his brief such evidence conduct and evidence sexual (Footnote exculpatory “that purpose, add- for an conduct.” offered sexual ed.) directly identity of evidence re- the DNA tests bore on the general This exclusion is, words, prior conduct lating to a victim’s sexual of assailant.” In other however, subject to enumerated ex- suggests certain that the DNA evidence was admis- part, ceptions. syllabus point belong- of the semen identified as sible because Guthrie, possibly deposited that such evidence ing we indicated to someone else was impeachment purposes when a by perpetrator during admissible the actual the course record, past his or her sexual conduct victim makes assault. Our review of the however, an trial: prof- issue at indicates the evidence distinctly fered to the circuit statute, specific evidence Under purpose than what is different character of the victim’s sexual conduct instances appeal. (2) now asserted on defendant, persons than the other con- opinion of the victim’s sexual pretrial in limine The State filed motion (3) reputation evidence of the duct and relating vic- to exclude conduct can be introduced victim’s sexual past conduct. Prior to com- tim’s sexual solely purpose impeaching for the trial, the State raised the sub- mencement credibility only if victim of the victim motion, ject making specific of this reference previous con- first makes his or her question. Calloway’s to the DNA evidence by introducing trial duct an issue responded stating that the counsel *6 respect with thereto. get that intenfd] defense did “not to into line recognized syllabus point 3 of We further questioning.” attempt- of The defense later ad- that sexual-conduct evidence is evidence, however, Guthrie ed to introduce this relationship a missible if it has direct testimony by prose- response to elicited alleged: criminal conduct regarding cution from the victim the nature 404(a)(3) relationship with a man said Virginia of her she some- Rule of the West mornings: express brought times her breakfast in the provides of an ex- Rules Evidence ception general of to the exclusion evi- Q. you When were next awakened? coming scope rape within the of our guess A. I between 6:30 and 7:00 the exception provides shield statute. This morning. already light out it It was but prior of conduct of a the admission early. rape trial court victim when the deter- Q. you? woke What (1) spe- camera that evidence is mines in A. A knock on the door. cifically related to the act or acts which Q. surprise you ... ? Did that (2) necessary charged and is defendant prevent injustice. to manifest A. No. added.) Q. Why surprise you? (Emphasis didn’t Well, my grandmother Calloway DNA evidence A. contends that the mom, hospital it falls so I assumed it was either should have been admitted because coming pick up exception Rape she had mentioned to me under the to the Shield Stat- 404(a)(3) past provides: evidence of the victim’s sexual conduct 8. Rule provided with the defendant as for in W. Va. (a) Generally. Evidence Character Evidence 61-8B-11; prior Code and as to tire victim’s person's of a character or a trait of character persons sexual conduct with other than the proving purpose not admissible for the of is defendant, where the court determines at conformity that he or acted in therewith on she hearing presence jury occasion, that out of particular except: specifically the act such evidence is related to charged which the defendant is or acts for Character Victim a Sexual Offense. misconduct, necessary injustice. prevent charging manifest In a criminal sexual case serious, He was not we me, mostly were she would have A. because she knows developing way. It was that ready get wait for so she would have me to friends. go early, hospital to the been there you Q. So when this knock at heard drive, would I so her because don’t she door, your you what did do? up, picked have or a friend of mine me opened IA. it. by. usually stopped added.) (Emphasis bartending. work I was He went early morning, got late and home making proof, In its offer the defense stop by bring me sometimes he would that the DNA asserted relevant breakfast he had to be at work before impeach by the victim’s demon- 7:00, 7:30. strating previously that she had had sex with boyfriend? Was that
Q. friend whom testified the male about.9 friend regarding developing, puts credibility issue 9. The in camera discussion that on that play. into was as follows: issue Judge, position DRUMMOND: our MS. is it Your [defense counsel]: MS. HUGHES .... There's no doesn’t. identification of whose Honor, ques- I would like to ask this witness those are. stains Just because said that the stain tions about the identified on the mattress- friend, boy- who would was a man friend, come es. What technician to the the lab testifies as direction, moving in that fact that testify testing, sperm, he will that it’s not Mr. there, sperm necessarily that it doesn't have Calloway’s. prior person's. his. It to be could have been The State filed a motion in limine to has period week MS. HUGHES: a three keep asking question. us from The reason only She said there time? lived for three why we we should be ask that believe able to apartment, This is the weeks. first the first question that is not covered Shield she had. house morning Statute is that she testified this you COURT: all have THE Could done DNA just stopped had a friend she believes testing on that? every they morning her house and that HUGHES: It and it MS. was done excluded seeing essentially each started other and Calloway. Mr. portrayed really boy- having a herself as not boy- THE COURT: Did it it was the show friend, along and our of the case all has friend? boyfriend been we believe that her came HUGHES: We know MS. don’t who the door and her naked with Mr. found boyfriend is. making after she and Mr. were out Judge, again, DRUMMOND: MS. without is, and that the one that knowing he’s administered sperm whose this Court can- *7 beating. credible, say that she was but where not not that, testimony we need to show Because of to be able her it’s slanted is that was in the relationship that she explaining was untruthful about her of her the reasonableness of context supposed why opened morning, with friend this that came that she the door that morning. expecting brought door in the friend that she was that this coming by, We issue and a don’t believe this is a collateral her breakfast was that’s premised explanation why simple, as to since our case is on the fact that it nice little some- boyfriend body open was her that beat- would the at six in the morn- administered the door ing. jive ing the but it doesn’t semen on the Judge, [prosecutor]: MS. the not his. DRUMMOND bed that’s activity my very point. statute Prior MCVEY: And clear. is MR. that’s There’s absolutely credibility no with semen the not admissible unless the victim’s connection on giving put stopping and and character into issue. She did not do bed with someone her there, that. What she testified to was he was a breakfast. Where is the connection that boyfriend, Judge? friend. When if he a she There is none. asked was trying relationship moving in COURT: what she’s to said that their was that THE That's her, to direction. Now whether or not that make. sex, point having inquiry no MCVEY: no to make means regard was made MR. There’s proof just There no We’re out to that. there. offered. [prosecutor]: MR. MCVEY was no in la la land. Plus there here boy- participant who was a in that. HUGHES: You knew the that she MS. name test it to see if friend’s was. You didn’t Honor, never been MS. Your we like we it his semen and we’ve able to HUGHES: feel was boyfriend. need for the name of the We the evidence that if the defendant determine boyfriend. by introducing meets that of the trial know the name of the How conduct don’t we have tested evidence. When she came in here and testified could him? you person just that and DRUMMOND: Did ask her on the this so-called a friend MS. it, portrayed way that’s the it was stand? she and relationship describing purpose of the of the 9—Continued Note boyfriend? was that this HUGHES: Her MS. boyfriend, developing in that was not a it was purpose, no There was MS. DRUMMOND: direction. Judge. gone Why into? that THE COURT: question first THE COURT: What was the chose to do it. MS. DRUMMOND: on, Hughes], you approached [Ms. the bench opened door. MS. HUGHES: She you this witness? about what wanted to ask No, open it didn't MS. DRUMMOND: you specific point make wanted to There was door. your on motion. put it in issue? THE COURT: What did HUGHES: unidentified stain that MS. This put anything didn't MS. DRUMMOND: It mattress, sample that was on the did he collect issue. why I reason would from the mattress? The talking THE COURT: I’m abut what she technician him that is so when the lab ask come said. whether, in, him I would be able to ask put anything It didn’t MS. DRUMMOND: fact, any it was tested. Was there DNA into issue. stain, analysis was this stain done on what purpose had to be a THE COURT: There Calloway. and did that stain match Mr. Somebody questioning. came to the door specifically what the MR. MCVEY: That's morning. exactly. in the Her mother came. provide against, at six rule is written to simply asking exception provides It I was MS. HUGHES: an MS. DRUMMOND: credibility, credibility impeach why relationship, opened her her what door, a collateral person this is not issue. expected because either this why it was asked. Not or her mother. That's Honor, re- MS. HUGHES: on the lab Your stranger just some off the street. Those two provided ports were that discuss that to us people came time of the morn- around at that respect DNA what the evidence was with because, said, get ing as he would off stain, puts and this this notion to rest that you work. But don't have connection to mattress, clearly shows this was used that semen, Judge, boyfriend to so her that Haynes’ and some other that stain was Ms. moving saying they simply direction, friends were that person depositor was the unidentified put her how does that character semen, Calloway. Mr. I think that the puts not So issue? How does the fact there’s semen in her rest that it mattress. was used put her in issue? bed character right. THE COURT: All thing giving The that’s me the THE COURT: only she's lived MS. HUGHES: Because relationship her trouble is innuendo about because their there for three weeks and own boyfriend. with her she had reports lab has her stain on the mattress. That Judge, denied MR. MCVEY: she never out gets this is a used mat- rid of They having anyone. and out never sex with period tress. This is three week time and question even wouldn’t be allowed to ask that explain still doesn’t Ms. Drummond’s ex- way only under the Shield Statute. The had, planation why inquired into the nature gotten they have into that is if she could somebody relationship way, that she testi- volunteered it herself and we some stupid enough gave it. her were ask fied came house and breakfast. opened Drummond one that Ms. is the asked, Why question THE boyfriend, COURT: when she that a door said is boyfriend? was that friend Haynes untruthful that caused Ms. to be about Why question MS. DRUMMOND: was that relationship with this the nature man. asked? MS. How does the word DRUMMOND: *8 Yes, THE COURT: "Boyfriend” assumption, pre- a result in an had MS. DRUMMOND: Because she told slept sumption that with him? she has by, stopped police the officers that a friend a just what MS. HUGHES: That’s not oftentimes, boyfriend Judge. or her mother I boyfriend. say just a She didn’t he was said. clarifying Judge. Again, just was that. You don’t know whose MS. DRUMMOND: moving he friend because she said was a sperm is. that any way that direction doesn't mean point, going COURT: this I’m to THE At having denied sex. proof no side with the state. There’s have to mean, I was no identifi- THE COURT: there guy’s sperm, prejudi- the that was and that this boyfriend. vague given the cation This my opinion, point, value at out- cial this by. say thing, policeman stopped didn’t a weighs [probative] it evidence that would boyfriend. No There's some connotation mean, balancing a I I’ve have. It’s test. been words, My given. In other name was friend. thinking times that about this for the four she’s relationship she it was in the context of a having was your it. I follow read that back. I followed boy. with a logic. sleep DRUMMOND: You don’t have to MS. objection, your your exception and I note you every boyfriend have. one. think it’s a unreason- strenuous I don’t get have to into THE COURT: You don't you illogical argument that made. I bringing able or that. She talked him about breakfast, was, my issue question it's a close call on a crucial and what was think and the
51
(1996)
550,
700, 708,
(noting
558
apparently at-
478 S.E.2d
was
Calloway’s trial counsel
requiring offers of
theory
this al-
that
of the reasons for
the
that
one
tempting to sustain
103(a)(2)
(who
proof
is to “aid the
was
identified
under Rule
leged “boyfriend”
never
trial)
deciding
al
reviewing
and
court in
whether
the
found the victim
at
magnitude
no
that
it
beating.
Importantly,
leged
at
of such
eiTor was
inflicted the
rights”
suggest
counsel
that
the
of
prejudicial
did defense
to the substantial
time
show that
the semen stain
party
would
has made such
proponent).
Once
Indeed,
directly
to the assault.
related
proof
under Rule
particularized
offer of
that she was
had earlier testified
103(a)(2),
expand
the victim
may
appeal
not
or
on
ejaculated
Calloway having
dur-
of
not aware
put
modify
of
the substance
the evidence
Also,
attempting
ing the encounter.
court. As
admonished
before the trial
we
allegation that
refute the
Bosley,
v.
of State
syllabus point
2
159 W.Va.
assaulted,
put con-
sexually
the defense
been
(1975),
67,
appellate
“[t]he
On
trial court
its dis
yet provided any
conclude
abused
has not as
clear rule for
refusing
proffered
in
to admit
determining
cretion
compels
when the Constitution
evidence,
clearly
DNA evidence. The evidence was
admission
although
of such
purview
Rape
within
implied
of the
Stat
has
balancing
ap
Shield
that a
of interests
ute,
proof
proach
since it was direct
victim
to each case should be used to recon
previously engaged
competing
sexual intercourse.
cile the
interests involved. See
61-8B-ll(b)
Alaska,
§
expressly permits
308, 319,
While
the Davis v.
415 U.S.
94 S.Ct.
1105, 1112,
(1974).
concerning
introduction of
evidence
I write the consis- recognition this Court that
tent rape give
court must a defendant case charges
every opportunity fight fair
against him. laws cannot under shield apart- spurious previously in an prior testified that she resided
weeks to the assault. This was a suggesting postulate, no evidence since there was ment. new, mattress was and the victim had that the