Opinion
Record No. 2091-91-4
June 22, 1993
FROM THE CIRCUIT COURT OF CLARKE COUNTY JAMES L. BERRY, JUDGE.
John C. Lowe (Gary L. Holmes, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Bray and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Channing Todd Furr (defendant) was convicted of rape and sentenced in accordance with the jury's recommendation to five years imprisonment. He contends on appeal that the trial court improperly excluded (1) expert testimony relating to the credibility of a witness, (2) evidence of the victim's previous sexual conduct and state of mind prior to the rape, and (3) expert testimony regarding the victim's injuries. We disagree and affirm the conviction.
The parties are fully conversant with the record and this memorandum opinion recites only those facts necessary to a disposition of the issues before the Court.
Viewing the evidence in the light most favorable to the Commonwealth, the record discloses that defendant and the victim became involved in a personal relationship in early 1990. On the morning of April 8, 1991, a disagreement arose between them and the victim demanded that defendant "get out" of her home. Instead, he "threw [her] on the bed" and physically restrained and raped her. Defendant denied these allegations and claimed consensual intercourse, followed by a violent argument and separation.
On defendant's motion pursuant to Code § 18.2-67.7, the trial court conducted a pre-trial hearing, during which defendant developed evidence of the victim's sexual history. This information was included in a "hypothetical question" to Dr. Joseph David (David), a psychiatrist, and he concluded that the person described suffered from a "personality disorder." Upon further questioning, David was asked his "opinion that it is reasonably probably [sic] that the mental condition" of "this particular complaining witness" prompted her to "fabricate the claim that she had been raped by the Defendant on April 8." In response, he expressed a belief "that the personality disorderof the case we are discussing could and did lead to a fabricated claim of sexual assault" (emphasis added). Following argument of counsel, the trial judge concluded that this testimony constituted an inadmissible comment on the credibility of a witness. As a consequence, the underlying evidence of the victim's prior "sexual conduct" became immaterial "to any issue in the case" and, likewise, inadmissible.
Defendant conceded on brief that David's "testimony provided the only rationale for the admissibility of the prior sexual acts."
At trial, the court also precluded evidence of certain "words and conduct" by the victim that defendant contended were inconsistent with and impeached her testimony. The court similarly would not allow defendant to inquire of a physician who examined the victim following the incident if her "lack of injuries" was "consistent with someone who has been raped."
During defendant's sentencing hearing on November 12, 1991, he moved for a new trial, arguing that, while the court properly excluded testimony "commenting directly on the credibility of [the victim]," David should have been permitted to address "the personality disorder and predisposition of people having that disorder to fabricate." This motion was overruled by the trial court.
We turn first to defendant's contention that the court erred in excluding David's expert testimony. It is well settled that an expert may not "express an opinion as to the veracity of any witness." Fitzgerald v. Commonwealth, 223 Va. 615, 630, 292 S.E.2d 798, 806 (1982), cert. denied, 459 U.S. 1228 (1983);Coppola v. Commonwealth, 220 Va. 243, 252-53, 257 S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103 (1980). Defendant's question to David specifically referenced the testimony of a "particular . . . witness" and, thus, was clearly "intended to elicit an opinion" of veracity. Coppola, 220 Va. at 252-53, 257 S.E.2d at 804; see also Fitzgerald, 223 Va. at 630, 292 S.E.2d at 806. Such evidence was properly excluded by the trial judge.
Nevertheless, defendant contends on appeal that David's testimony "would be admissible if given in response to a properly constructed hypothetical question." However, this argument was first presented to the trial court following the verdict and its consideration now is untimely and precluded by Rule 5A:18. A proper objection "must be made when the evidence is offered or the ruling given," Boblett v. Commonwealth, 10 Va. App. 640, 651, 396 S.E.2d 131, 137 (1990), and "the proponent . . . has the burden of establishing its admissibility." Neal v. Commonwealth, ___ Va. App. ___, ___, 425 S.E.2d 521, 523 (1992). To "'preserve error,'" the trial court must be alerted to the "issue" and the "'specific rule of evidence on which [the party] relies.'"Id. at ___, 425 S.E.2d at 524-25 (quoting Huff v. White Motor Corp., 609 F.2d 286, 290 n. 2 (7th Cir. 1979)).
Although we "will notice error for which there has been no timely objection . . . when necessary to satisfy the ends of justice," Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989), we do so only when the record reflects "error" that is "clear, substantial and material." Id. at 132, 380 S.E.2d at 11. Our review of this record reveals no such error or resulting "miscarriage of justice." See Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).
Defendant further complains that the trial court erred in excluding testimony related to statements and conduct of the victim that preceded the rape. While much of this evidence was inadmissible for other reasons, it is well established that the "refusal to admit repetitious testimony" rests within the broad discretion of the trial court which, absent abuse, will not be disturbed on appeal. Philip Morris, Inc. v. Emerson, 235 Va. 380, 410, 368 S.E.2d 268, 284 (1988); see Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). Because the testimony in issue only "restate[d] what ha[d] been said already and . . . [was] of the same kind and character as that already given," Massey v. Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 758 (1985);Cash v. Commonwealth, 5 Va. App. 506, 512, 364 S.E.2d 769, 772 (1988), we find no abuse of discretion in the trial court's decision to limit its introduction. See Ferguson v. Commonwealth, ___ Va. App. ___, ___, 427 S.E.2d 442, 445 (1993).
We next address defendant's argument that the trial court erred in refusing the testimony of the "examining physician." The Supreme Court has repeatedly instructed that admission of "expert opinion upon an ultimate issue of fact" is an impermissible invasion of the "function of the fact finder."Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598 (1992); Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769, 771-72 (1984); Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978); Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22, 29 (1963); Davis v. Commonwealth, 12 Va. App. 728, 731, 406 S.E.2d 922, 923 (1991). In Cartera, the Court held that, while proper "to permit the doctor to state what examinations and tests he performed . . . and what medical conclusions he reached," it is "improper to permit [him] to express his opinion that [the victims] had been raped." 219 Va. at 519, 248 S.E.2d at 786.
Similar to Cartera, the proposed testimony in this instance "invaded the province of the jury" because the determination of "[w]hether rape had occurred was the precise and ultimate issue in the case." Id. Although defendant invited a "qualified" response by questioning the consistency of the victim's physicial condition with rape, the inquiry clearly focused and solicited "opinion upon an ultimate issue of fact" then before the court. Llamera, 243 Va. at 265, 414 S.E.2d at 599; see also Davis, 12 Va. App. at 732, 406 S.E.2d at 924.
Lastly, defendant argues that several among the objectionable rulings of the trial court violated his constitutional rights "to present his case." However, defendant failed to raise these constitutional issues before the trial court, and we decline to consider them for the first time on appeal. Rule 5A:18.
Defendant cites Va. Const. art. I, § 8, and U.S. Const. amend. VI.
Accordingly, the decision of the trial court is affirmed.
Affirmed.