Opinion
Record No. 1517-92-3
Decided: May 17, 1994
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY, George E. Honts, III, Judge
Affirmed
Elizabeth P. Murtagh (Haine and Murtagh, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal of three convictions of statutory rape and a conviction of sexual battery, we hold (1) that the defendant's confession to the police was voluntary, and (2) that the defendant did not have a right to question the victim regarding other alleged abuse absent a hearing under the rape shield law.
VOLUNTARY CONFESSION
A defendant's confession is voluntary if it is the product of an essentially free and unconstrained choice, and if in making the confession the defendant's will is not overborne and his or her capacity for self-determination is not critically impaired. Rodgers v. Commonwealth, 227 Va. 605, 609, 318 S.E.2d 298, 300 (1984). Whether a confession is voluntary is a legal question determined by a review of all of the circumstances, including the personal characteristics of the accused and the interrogation techniques employed. Terrell v. Commonwealth, 12 Va. App. 285, 290-91, 403 S.E.2d 387, 390 (1991); see also Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d 815, 823 (1985), cert. denied sub nom Poyner v. Virginia, 474 U.S. 865 (1985) (holding that the fact that defendant did not want police detectives to tape or write down his confession did not establish that his will was overborne or that his confession was not voluntary). In determining whether a statement is voluntary, this Court must make an independent evaluation of evidence, and in doing so may rely upon the trial court's finding of fact, except as to the ultimate issue of voluntariness. Mundy v. Commonwealth, 11 Va. App. 461, 477, 390 S.E.2d 525, 533, aff'd en banc, 399 S.E.2d 29 (1990), cert. denied, 112 S.Ct. 127 (1991).
In this case, while questioning the defendant, a deputy told him that "this is not something that goes out in the public" and that "the judge likes for me to tape everything." After an independent review of the evidence, we conclude that these statements did not impair the defendant's capacity for self-determination and did not overbear his will. Compare Wilson v. Commonwealth, 13 Va. App. 549, 554, 413 S.E.2d 655, 658 (1992) (holding that police misrepresentation did not overbear the defendant's will) with Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 S.E.2d 722, 723-24 (1992) (holding that police interrogation of injured defendant in ambulance prevented defendant from exercising his will). Therefore, the defendant's confession was voluntary.
RAPE SHIELD LAW
The purpose of "rape shield" laws is to limit harassing and embarrassing defense inquiries into the prior sexual conduct of complainants, thereby encouraging victims to report sexual assaults and to testify at trial. Neeley v. Commonwealth, ___ Va. App. ___, 437 S.E.2d 721, 724 (1993). The rape shield law in Virginia explicitly applies to cases of sexual battery, and requires the exclusion of evidence involving specific instances of the complaining witness's prior sexual conduct. Code Sections 18.2-67.7; 18.2-67.10. This general exclusionary rule is subject to three exceptions specifically enumerated in Code Sec. 18.2-67.7(A). Furthermore, such evidence shall not be admitted unless the trial court first determines its admissibility at an evidentiary hearing conducted for this purpose. Code Sec. 18.2-67.7(B) (C).
The applicability of the rape shield law and the necessity for such a hearing to determine the admissibility of such evidence is not affected by the form of the inquiry. Even if the question is framed to address another's conduct, as in this case, "[d]id [the neighbor] ever touch you," the requirements of Code Sec. 18.2-67.7 must be satisfied before such evidence is admissible. No hearing was requested as required by Code Sec. 18.2-67.7(C); therefore, the evidence was not admissible.
For these reasons, the judgments of conviction are affirmed.
Affirmed.