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Johnson v. Commonwealth

Court of Appeals of Virginia. Norfolk
Sep 29, 1992
Record No. 0302-91-1 (Va. Ct. App. Sep. 29, 1992)

Opinion

Record No. 0302-91-1

September 29, 1992

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE RUSSELL I. TOWNSEND, JR., JUDGE.

James M. Walton for appellant.

Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.

Present: Chief Judge Koontz, Judges Baker and Coleman.

Argued at Norfolk, Virginia.


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated publication.


In a bench trial, Randolph Lee Johnson (Johnson), appellant, was convicted for the rape of Corinne Wilson (Wilson). Johnson raises three issues on appeal: (1) whether the trial court erred in admitting in evidence a tape recording of a telephone conversation between Johnson and Wilson; (2) whether the trial court abused its discretion in allowing the Commonwealth to recall Wilson after both parties had rested; and (3) whether the trial court erred in failing to consider a forensic science report. Finding no error, we affirm.

The parties are familiar with the facts of the case. Accordingly, we restate only those facts necessary to explain our holding.

I. I.

Johnson first contends that the trial court erred in admitting in evidence a tape recording of a telephone conversation between Johnson and Wilson because the quality of the tape was poor. The record reflects that at the time the recording was offered in evidence, defense counsel did not object, on this ground, to the admission of the recording. Although counsel objected to the quality of the tape after it was admitted in evidence, this objection was not timely.

The prosecutor asked for the court's permission to play the tape recording and defense counsel objected because he had not heard the recording. Counsel also objected "[o]n the basis that it was apparently taped surreptitiously without the defendant's knowledge or consent." The court overruled the objection and the tape was played. Following a replay of the tape, the prosecutor examined Wilson regarding the taped conversation and offered the tape in evidence. The tape was admitted in evidence without objection. During his cross-examination of Wilson, defense counsel objected to the admission of the tape recording on the grounds that Wilson had control over the recording process, "the defendant had not consented to have any recording made of his conversation," and "that the tape both in terms of the quality of it and in terms to be able to understand what is on it." The objections were overruled. Because the tape was played twice before being offered in evidence, defense counsel was aware of the quality of the tape recording at the time the tape was admitted in evidence.

Generally, a contemporaneous objection on stated specific grounds must be made in the trial court before an appellate court is authorized to review the question of admissibility of evidence. To be timely, an objection to the admissibility of evidence must be made when the occasion arises — that is, when the evidence is offered, the statement made or the ruling given.

Harward v. Commonwealth, 5 Va. App. 468, 473, 364 S.E.2d 511, 513 (1988) (citations omitted); Rule 5A:18. Thus, "the trial judge was not presented the opportunity at the time the evidence was offered to consider and rule" on its admissibility. Id. at 474, 364 S.E.2d at 513. Because Johnson failed to comply with the contemporaneous objection rule, we will not consider this claim for the first time on appeal.

II.

The second issue is whether the trial court erred in permitting the Commonwealth to recall Wilson after both parties had rested. Johnson claims that the court erred in allowing the Commonwealth to re-open its case to introduce new evidence. The Commonwealth, however, contends that the testimony elicited from Wilson was rebuttal testimony, not new evidence, and, therefore, permitting such testimony was proper. Our resolution of this issue does not turn on whether the testimony elicited from Wilson is characterized as "rebuttal evidence" or "new evidence." Rather, the sole issue is whether the trial court abused its discretion in permitting the Commonwealth to introduce this evidence.

It is well-settled that "`the order of proof is a matter within the sound discretion of the trial court' to be reversed only in `very exceptional cases,' and the trial court's rulings will be disturbed only if an abuse of that discretion affirmatively appears." O'Brien v. Commonwealth, 4 Va. App. 261, 267, 356 S.E.2d 449, 452 (1987) (quoting Hargraves v. Commonwealth, 219 Va. 604, 608, 248 S.E.2d 814, 817 (1978)). Whether a party should be permitted to introduce additional evidence after it has rested is, likewise, a matter left to the discretion of the trial court. Foley v. Commonwealth, 8 Va. App. 149, 165, 379 S.E.2d 915, 924 (the allowance of rebuttal testimony is a matter left to the sound discretion of the trial court), aff'd en banc, 9 Va. App. 175, 384 S.E.2d 813 (1989); Chrisman v. Commonwealth, 3 Va. App. 371, 375-76, 349 S.E.2d 899, 902 (1986) (trial court's ruling permitting Commonwealth to re-open its case to present new evidence will not be reversed on appeal in the absence of an abuse of discretion). Therefore, it is clear that regardless of whether the Commonwealth introduced rebuttal evidence or new evidence, we review the trial court's ruling only for an abuse of discretion.

In his case-in-chief, Johnson introduced a Bureau of Forensic Science report, which concluded that "[i]f there was only one seminal fluid depositor then Randolph Johnson could not have deposited the seminal fluid [found] on the thigh/vulva swabs" taken from Wilson. The report also indicated, however, that "[i]f there was more than one seminal fluid depositor, both [Wilson's boyfriend] and Randolph Johnson could have contributed the seminal fluid." After both parties had rested, the prosecutor asked the court for permission to briefly recall Wilson for "two quick questions." Defense counsel objected to the Commonwealth re-opening its case, but the court overruled the objection, finding no prejudice in allowing rebuttal testimony. Wilson testified that she had sexual intercourse with her boyfriend at 5:00 a.m. on January 16, 1990, and that her boyfriend had ejaculated.

Based upon our review of the record, we find that the testimony permitted by the trial court was rebuttal testimony, introduced to counter evidence admitted in evidence during Johnson's case-in-chief. Specifically, the Commonwealth recalled Wilson in order to show that there was more than one seminal fluid depositor. The testimony elicited on rebuttal was limited to establishing this singular fact. Moreover, Johnson has shown no prejudice from the trial court's ruling and none is apparent from the record. Accordingly, we find no abuse of discretion in the trial court's ruling permitting the Commonwealth to recall Wilson.

III.

Johnson's third assignment of error alleges that the trial court improperly ignored the Bureau of Forensic Science report when the evidence contained in that report created a substantial doubt of Johnson's guilt. Johnson relies upon a finding in the report that if Johnson was the only person alleged to have had intercourse with Wilson, he could not have been that person. The essence of Johnson's contention is that the trial court abused its discretion by ignoring uncontradicted forensic evidence that "tended to exclude Johnson from the category of persons who could have raped Wilson."

Johnson's argument is flawed in two fundamental respects. First, the forensic report does not tend to exclude Johnson from the category of persons who could have raped Wilson. Although the report excludes Johnson as the rapist if there is only one person with whom Wilson had intercourse, the report also posits that Johnson could be the rapist if Wilson had intercourse with more than one person that day. Johnson overlooks the Commonwealth's rebuttal evidence, which showed that Wilson had sexual intercourse with her boyfriend on January 16, 1990. Viewed in the light most favorable to the Commonwealth, the evidence shows that Wilson had sexual intercourse with more than one person on January 16, 1990. Therefore, the forensic report did not necessarily exclude Johnson as the rapist.

By his own testimony, Johnson admits to having had sexual intercourse with Wilson on the day of the rape, although he claims that it was consensual and that it took place earlier in the day.

Second, contrary to Johnson's allegation, the trial court did not ignore the forensic report. The court received the report in evidence and made reference to it at the end of trial. The evidence was properly before the court for its consideration and, as the trier of fact, the court was entitled to accord to the evidence the weight it deemed appropriate. Consequently, we find no merit to Johnson's contention that the trial court ignored uncontradicted and exculpatory evidence.

For these reasons, the judgment of the trial court is affirmed.

Affirmed.


Summaries of

Johnson v. Commonwealth

Court of Appeals of Virginia. Norfolk
Sep 29, 1992
Record No. 0302-91-1 (Va. Ct. App. Sep. 29, 1992)
Case details for

Johnson v. Commonwealth

Case Details

Full title:RANDOLPH LEE JOHNSON, a/k/a RANDY JOHNSON v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Norfolk

Date published: Sep 29, 1992

Citations

Record No. 0302-91-1 (Va. Ct. App. Sep. 29, 1992)