Opinion
Record No. 0057-93-4
Decided: May 31, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Jack B. Stevens, Judge
Reversed and Remanded.
Edward J. Tolchin (Brian Taylor Goldstein; Fettmann Tolchin, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, on brief), for appellee.
Present: Chief Judge Moon, Judges Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is reversed.
Great latitude is allowed on cross-examination, and the general rule is that anything tending to show the bias on the part of the witness may be drawn out. Corvin v. Commonwealth, 13 Va. App. 296, 300, 411 S.E.2d 235, 238 (1991). "[T]he right of an accused to cross-examine prosecution witnesses to show bias or motivation, when not abused, is absolute." Hewitt v. Commonwealth, 226 Va. 621, 623, 311 S.E.2d 112, 114 (1984). Questions which attempt to show that a witness is biased and her testimony unreliable because it is induced by considerations of self-interest are always relevant. Banks v. Commonwealth, ___ Va. App. ___ ___, 434 S.E.2d 681, 683 (1993).
Thus, we hold that cross-examination of witnesses regarding the background and nature of the civil suit between Shea and the parents should have been permitted because it showed bias and a motivation for Catherine to lie. Similarly, evidence regarding the father's domineering relationship with the other members of the family was probative of Shea's contention that the father used undue influence and duress over Catherine to cause her to accuse Shea of rape. Finally, the trial court should have permitted Shea to challenge his mother's testimony that she loved him by cross-examining her concerning the circumstances in their lives that contradicted her assertion.
Therefore, we hold that the trial court abused its discretion by refusing to allow Shea a wider latitude on cross-examination into Catherine's possible motivation to lie. The jury was prevented from evaluating whether the past actions of her parents gave them sufficient influence over Catherine to cause her to lie.
Because Catherine's credibility was vitally important at trial, we cannot say that the limitation imposed upon Shea's cross-examination was harmless error. Therefore, we reverse the conviction. See Woody v. Commonwealth, 214 Va. 296, 199 S.E.2d 529 (1973).
We also address four other issues raised by Shea which might arise upon remand.
1. The record does not support Shea's assertion that the trial court erroneously denied his request for the family counseling records, which he claims were exculpatory. Insofar as Shea admits to subsequently having seen most of the records which were not discovered at trial, the issue is moot. As to those records Shea may not have already seen, our review of those records discloses that the trial court correctly determined that the records did not contain exculpatory evidence. See Townes v. Commonwealth, 234 Va. 307, 324, 362 S.E.2d 650, 659 (1987), cert. denied, 485 U.S. 971 (1988).
2. Under Virginia law, hospital records may be admissible hearsay under the Shopbook Rule exception for proof of facts or events within the personal knowledge and observation of the recorder to which he or she could testify if called as a witness. Neeley v. Johnson, 215 Va. 565, 571, 211 S.E.2d 100, 106 (1975). However, the Supreme Court of Virginia has refused to extend the exception to allow into evidence opinions and conclusions of physicians or others recorded in hospital records. Id.
Shea's expressed purpose for seeking to admit the hospital records into evidence was to prove the truthfulness of a statement purportedly made by Mrs. Shea to a hospital social worker that her husband thought Catherine had been sexually assaulted by Shea. Because the statement in the hospital record was an out-of-court statement sought to be admitted for the truth of the matter asserted, it is hearsay and admissible only if it falls under an exception to the hearsay rule.
We find that the recorded opinion was not used as the basis of the doctor's opinion about the victim's condition. See Makall v. Commonwealth, 236 Va. 240, 255, 372 S.E.2d 759, 769 (1988), cert. denied, 492 U.S. 925 (1989). Neither the doctor nor the social workers had any personal knowledge of the truth of the statement which allegedly was relayed to them by Catherine's mother. Because the statement falls under no other hearsay exception, the trial court properly excluded the hospital record.
3. The trial court did not err in refusing to grant Shea's proposed jury instruction that advised the jury to consider the timing of Catherine's complaint in assessing her credibility. This issue is controlled by Yeager v. Commonwealth, 16 Va. App. 761, 433 S.E.2d 248 (1993), where in addressing the same argument as that proffered by Shea, we found a similar instruction to be a comment on the evidence.
4. Because we reverse and remand, the jury selection issue is moot. However, we note that although it is not error for a juror whose family has a history of sexual assault to serve on a rape trial jury, once the potential juror has given cause for being struck, he or she may not be rehabilitated by merely answering "yes" or "no" to the judge's or counsel's leading questions. See McGill v. Commonwealth, 10 Va. App. 237, 242, 391 S.E.2d 597, 600 (1990); see Foley v. Commonwealth, 8 Va. App. 149, 160, 379 S.E.2d 915, 921, aff'd en banc, 9 Va. App. 175, 384 S.E.2d 813 (1989).
With regard to the other issues raised, we assume they will not recur on remand and, therefore, do not consider them.
Reversed and Remanded.