*2
mony
only
of the victim’s was the
Harris,
Q.
Atty.
(Wil
Robert
Asst.
Gen.
jury
penetration, and,
of actual
Broaddus,
Gen., Richmond,
Atty.
liam G.
as decisions of
the Virginia Supreme
both
Va.,
brief),
appellants.
for
on
Court
clear,
and this court have made
un
McFadden,
(Meade,
Louis P.
Jr.
Tate &
Virginia law,
der
penetration is an essential
Daniel, P.C., Danville,
brief),
Va., on
for
element of
rape.
the crime of
Strawder
appеllee.
Commonwealth,
man v.
200 Va.
108
PHILLIPS,
Before RUSSELL and
Cir-
(1959);
S.E.2d 376
Peyton,
Coles v.
GORDON,
Judges,
cuit
United
Senior
F.2d
Cir.),
226-27
denied,
cert.
Judge
States District
the Middle
for
Dis-
Carolina, sitting by designa-
trict of North
(1968).
tion.
The Virginia Supreme
Court
RUSSELL,
Judge:
DONALD
Circuit
leave for the trial court to consider the
correction,
Commonwealth’s motion for
but
Pittsylvania County,
The
of
Sheriff
Vir-
after listening
tape
recording,
to
which
ginia,
Woodson,
M.L.
and the Attorney
distorted,
the triаl judge could
Virginia,
General
the State of
of
William G.
Broaddus, appeal
accurately
grant
from the
of a writ
determine the victim’s testimo-
corpus requiring
of habeas
the release of ny. The
trial
sent
tape
to an FBI
Douglas
William
custody.
Hunt from their
enhancement,
lab for
but the FBI sent it
Virginia
The State of
Hunt
tried
before a
saying
back
that enhancement had been
jury
burglary,
aggravated
rаpe
for
impossible.
trial judge
then stated
battery
July
sexual
on
1982. The
he,
although
like the Commonwealth’s
guilty
rape,
found Hunt
of
and the trial Attorney, remembered that the victim testi-
years
sentenced him to fifteen
of
penetration,
rely
fied
he needed to
imprisonment.
appealed
Hunt then
to the
tape
any degree
certainty,
for
of
and he
Virginia Supreme Court.
could not order a correction.
appeal,
Before
typist,
Hunt’s
who was
setback,
Faced with this
the Common-
present
prepared
the trial tran-
wealth’s
Virgin-
moved before the
script by transcribing
proceedings
from
ia
Court
a new trial. recordings
tape
The typist’s
the trial.
Supreme Court, however, remanded the
however,
reported that the vic-
matter to the trial court for
considera-
nеw
that,
tim
jumped
top
“He
on
of me
Apparently feeling
tion.
fingers
my body.”
and stuck his
into
After
placed
emphasis
too much
brought
appeal,
Hunt
the Common-
tape,1
directed
Attorney sought
wealth’s
from
leave
judge to consider his own recollection of
Court,
Virginia Supreme
testimony
well
as his statement
8.01-428(B),
Code
to seek a correction of
ques-
only
moments after the
the transcript
from the trial
based on
testimony
following
tioned
Attorney’s
Commonwealth
recollection
defense
that,
that,
jumped objection,
that the victim testified
“He
“She
been
testified she’s
My
testimony
disputed
The trial
decision stated that:
recollection
yours,
again
rely
grant
same as
I
your
declines
[T]he court
motion in
tape
magnetic
proceedings
magnetic
tape
any
view of the fact
of that
portion
testimony
you allege
degree
certainty
say
is in
and I
cannot
[the
transcript
error in the trial
is distorted to the
attorney’s]
defense
contention as to the witness’
cannot,
extent
degree
that the court
with
reasonable
testimony is not correct.
certainty, say
what the witness’ an-
swer was.
2254(d)’seight
one
penetrated
you
exceptions applies.
else do
want her
... what
539, 550,
testify
to?”
Sumner v.
764, 770-71,
Reconsidering
light
its earlier decision
Here, the district court determined that
guidance
of this new
and after
eighth exception,
subsection d’s
parties represented by attorneys,
all
with
*3
fairly sup-
“factual determination
[was]
corrected the
record,”
ported by
applied.2
The dis-
Virginia Supreme
Court then refused
then
trict court
concluded that
grоund
petition
appeal
Hunt’s
improperly
judge had
corrected the tran-
no
error in
that there had been
reversible
that,
result,
script and
as a
insufficient
subsequently peti-
his conviction. Hunt
supported Hunt’s
conviction. See
corpus in
tioned for a writ of habeas
307,
Virginia,
v.
443
99
Jackson
U.S.
S.Ct.
for the Western District of
District Court
2781,
(1979). Consequently,
Virginia,
and the district court
appeal
the issue on
is whether the district
Arguing that
under 28 U.S.C. 2254.
writ
§
finding
court afforded the state court’s
error,
Pittsylva-
this was in
the Sheriff of
that
witness
County
nia
and the
General of
2254(d).
proper respect under 28 U.S.C. §
brought
appeal.
this
beginning
In a recent line of cases
question
At issue here is the
Mata,
539,
with
449
101
Sumner
U.S.
gave proper
court
def
whether the district
764,
(1981)
S.Ct.
con
finding
erence to the state court’s
of fact
tinuing
recently
most
with Kuhlmann v.
penetration.
that
the witness testified to
—
Wilson,
-,---,
U.S.
106
question
There is no
2616, 2629-31, 91 L.Ed.2d
S.Ct.
364
fact,
made a
of historical
see Miller
—
(1986),
Court has clarified the
Fenton,
U.S.-,---,
106
2254(d)
meaning
in
process
(1985),
445, 451-53,
L.Ed.2d 405
88
grants
has reversed seven
of the writ of
he found that the
because
witness
corpus
where federal courts failed
penetration. At the same
there can
time
give proper
deference
state court
question
also be no
findings
In
of fаct.
the first case of Sum
procedural
pro
afforded
defendant
due
539,
764,
ner v.
101 S.Ct.
66
decision,
making
cess in
this
because he
(1981),
722
L.Ed.2d
court made it clear
parties
arguing
allowed both
to file briefs
Congress
2254
added subsection d to §
the merits of a correction and held a hear
attorneys.in
1966
lessen
friction between state
ing
parties represented by
with both
out,
pointed
and federal cоurts. The court
Teets,
Chessman v.
Cf
.
moreover, that under subsection d federal
77 S.Ct.
L.Ed.2d 1253
presume
courts must
court find
situation,
2254(d),
state
this
under 28
U.S.C. §
ings
presume
are correct unless the federal court
federal court must
that a state
explicitly
court’s
of facts are correct unless
finds that one of subsection d’s
2254(d)
(8)
part
provides
part
2. 28 U.S.C.
that:
...
record of the State
proceeding in which
(d)
court
the dеtermination
any proceeding
instituted in a Federal
made, pertinent
issue was
application
of such factual
to a
for a writ of habeas
corpus by person
custody pursuant
sufficiency
to the
determination
of the evi-
court,
determination,
judgment of a State
a determination
dence to
such factual
hereinafter,
of a factual
after
issue,
the merits
produced
provided
competent
made
a State court of
the Federal court on a consideration of such
jurisdiction
proceeding
ap-
in a
to which the
part of the record as a whole concludes that
plicant for the writ and the State or an officer
fairly sup-
is not
such factual determination
agent
parties,
by a
or
thereof were
evidenced
rеcord____
ported by the
finding,
opinion,
reli-
written
written
or other
indicia,
adequate
shall be
able and
written
correct,
presumed to be
unless ...
eight exceptions applies.
(1983),
at
Court overturned an
770-
grant
Id.
of a writ of habeas
ground
that a state trial
subsequent
In its
decision in Marshall v.
providing
erred
for further
Lonberger, 459
competency proceedings
requiring
L.Ed.2d 646
the court examined the
defеndant
to stand trial. -The defendant
specific exception,
d(8),
in subsection
shortly
had moved
before trial
compe-
for a
making
the district court relied on in
tency
presented
examination and
an ex-
Marshall,
decision in this case. In
an Illi-
pert’s testimony, based on a
ex-
one-hour
nois trial
allowed into evidence a
defendant,
amination of the
which indicated
guilty plea
dеfendant’s
on another
crime
that the
paranoid
defendant suffered from
hearing,
an Ohio court.
In a
the Illinois
Relying
delusions.
on his own extensive
guilty plea
decided that the Ohio
observations of the defendant before
voluntary
had been
knowing
based on
*4
judge
denied the motion based on
the records of the
In making
Ohio court.
his belief that the
compe-
defendant was
decision,
judge apparently
the Illinois
tent. The Fifth Circuit overturned the trial
chose not to credit the defendant’s testimo-
decision,
judge’s
ground
the
ny
charges
that he did not understand the
expert’s testimony
incompeteney
about
was
against
Ruling
him in Ohio.
that there was
unimpeached,
specifically
pointed to
support
not fair
in the record for the trial
2254(d)(8)
supporting
decision,
be-
conviction,
judge’s admission of the Ohio
a
cause it believed that there was not fair
federal appeals
granted
court
a writ of
support in the record for the state court’s
corpus.
habeas
finding of competency. Relying on the tri-
Reversing
appeals
grant,
the
court’s
judge’s opportunity
al
to observe the de-
Supreme Court stated that
the failure of
fendant and his
specific
relianсe on
instanc-
judge
expressly
state that he
es of the defendant’s conduct as supporting
did not
testimony
believe the defendant’s
competency,
Supreme
of
writ,
support
could not
issuance of the
be- Court reversed the Fifth Circuit on the
ruling
cause
implicit
was
in
trial
ground
certainly
that there
sup-
was “fair
judge’s
Similarly,
decision.
Supreme
port” in
the record
trial
reweighing
Court also ruled that a
decision.
the federal court also could not
recently, in
Spain,
More
Rushen v.
support
writ,
issuance of because state
114,
453,
104 S.Ct.
judge’s presumed disbelief of the defend-
ter
extensive voir dire the trial
al-
testimony provided
ant’s
ample support for
Rushen,
lowed the
juror
to sit.
In
Supreme
state court’s decision. Thе
judge during
communicated to the
pointed out, moreover,
Court also
that be-
that she
prior
realized that the victim of a
demeanor,
cause he can see a witness’
crime
had been
in
identified
the evi-
particularly qualified
to make dence had
her
been
childhood friend. The
judgments
accurate
credibility.
Id. at
parte
interviewed the witness ex
434,
had not considered future argues The defendant upheld his decision and the sentence. The judge’s penetration statement could be rel- Eleventh Circuit then reversed the sen- assault, charge evant to the of sexual Supreme tence and held that the Florida penetration is an element of that crime. not ruling judge that the trial had not 18.2-67.3-67.10(6). See Va. Code Fur- §§ dangerousness in- considered future thermore, especially it is clear that the trial correct. judge “pen- must have used the word etration” to mean an element of the crime As one of three alternative rationales Circuit, rape, judge making because the trial is reversing its Eleventh decision the as he off presumр- the the that statement the record cuts Court discussed questions prosecution’s to the Florida a line of the con- tion correctness which finding cerning the actual commission of the crime. Court's Dictionary penetration Similarly, court in Strawderman v. Com 3. Black’s Law defines the law, (in monwealth, denoting term used in 200 Va. 108 S.E.2d "[a] criminal universally alleged rape) held cases of the insertion of thе male stated that "it is that ... parts slight rape] prosecution prove part extent; must into the female to however cases of the [in by penetration there has been an actual which insertion the offense organ complete proof without of emission.’’ Black’s some extent of the male sexual into 1979). Dictionary organ.” sexual Law ed. female GORDON, penetration If as in- Judge, had meant Senior District dissent- cluding fingers, ing: he would defendant’s continue, questioning have allowed that Respectfully, I from opinion dissent prosecution yet would not
because majority. On the facts of this might prove questions asked the which I do not think the authorities cited rape charge. Consequently, by using the majority require of the judgment reversal “penetration” simultaneously term cut- of the district court. ting questioning, off must I exception take no to the conclusion of have believed that the victim had testified majority that the state court’s penis that the had entered defendant’s her of fact high are entitled to measure of body. attorney’s Even the defense actions However, by deference. reason of the un- trial, moreover, finding support procedure usual in whiсh the record was penetration, the witness be- changed, presumption of correctness in making acquittal cause his motion for accorded the factual of the trial attorney defense focused lack of compromised my court was view. argue evidence of did not force and penetration. there was no The crucial issue before the trial court on very charge rape serious was wheth- Finally, empha- as the er there was a sexual Marshall, Maggio, sized in its and Patton victim. The record as transcribed did not decisions, here, although prosecution’s contention on this deciding credibility, uniquely capable issue. accurately correcting This is because the trial was in the On the initial remand position strength best of his Supreme Court to thе trial court to consid- posi- recollection and was also best correcting er the trial court likely tion to determine if he was to have prosecution’s denied the motion and “penetration” used the term in a non-tech- stated that he could find with “reason- *6 nical sense. certainty” able what answer of the was, victim and further remarked that he sum, although original- say could not thаt defense counsel’s con- ly transcript, decided not to correct Additionally, tention was incorrect. opinion heavy first reveals a reliance on the Investigation, Federal upon Bureau of di- tape recording. Virginia When Su- court, by rection the trial examined the preme Court directed him to reconsider his tape reported and aural examina- record, light dеcision in of the entire how- portion tion of designated specimen ever, judge quite rationally the trial decid- Q1 following: jumped revealed the “He ed to correct the Because of top fingers of me and stuck his inside of recollection, the trial his use of the prosecution’s me.” Accordingly, the mo- “penetration” term and his transcript tion to correct the to reflect sex- unique accurately ability to correct penetration by ual was denied definitely this has “fair decision court. support” Consequently, un- the record. 2254(d), der court should the district prosecution point ap- did this
presumed judge’s finding that the trial peal transcript peti- decision instead the victim actual tioned the Court for a was correct and should not have Court, new trial. The without no- corpus. Accordingly, the writ of habeas tifying parties considering any or briefs judgment granting district by or materials not considered the writ of court, remanded the case to trial court transcript issue. REVERSED. reconsideration of Supreme Court noted that there DIXON, “ample transcript change. Wesley for the Appellant, basis” E. remand, court, faced with this On v. Court, very clear mandate of its NATIONWIDE MUTUAL INSURANCE trаnscript quite naturally changed the COMPANY, Nationwide Mutual Fire prosecution’s motion. accordance with the Company, Insurance Nationwide Life procedure This is what causes me con- Company, Insurance Nationwide Gen- opinion, In my cern. the trial court’s inde- Company, eral Insurance and Nation- majority opinion pendence .cor- Property Casualty wide Company, and —which rectly advantages notes includes the Appellees. first-hand and recollection— observation Wesley DIXON, Appellee, E. compromised in this case the Vir- ginia Supreme mandate. And correctly majority opinion while the notes NATIONWIDE MUTUAL INSURANCE generally that federal habeas courts should COMPANY, Nationwide Mutual Fire rulings appel- of state defer the factual Company, Insurancе Nationwide Life courts, late none of the cases cited deal Company, Insurance Nationwide Gen- the state with a situation which Company eral Insurance and Nation- fact-finding conflicts with that of Property Casualty Company, wide and situation, its state trial court. such a Appellants. here, presented the federalism concerns re- BECKMAN, formerly James Lee d/b/a in Wainwright upon hеavily lied so Company; Jim Beckman Insurance Sumner are simply dispositive. Watson, Jr., Jasper Appellees, N. transcript When the motion to amend the him, first came before con- fully explic- sidered facts available NATIONWIDE MUTUAL INSURANCE COMPANY, itly denied the motion to amend. No addi- Nationwide Mutual Fire Company, Insurance Nationwide Gen- presented tional facts were after the order Company, еral Insurance Nationwide remanding the case further considera- Property Casualty Company, tion judge. Company, Horace Mann Insurance understanding Given the transcriber’s Company, Horace Mann Life Insurance tape, Investiga- the Federal Bureau of Marketing and Educators Services Cor- report, uncertainty tion’s and the obvious poration, Appellants. judge, concerning of the trial crucial ele- *7 84-2364, Nos. 84-2365 and 85-1106. charged, ment of the offense I would af- judge. firm the decision of the district Appeals, United States Court of
Fourth Circuit. Argued July 1986. Sept. Decided