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No prosecution appeal of Virginia Evidence Rule exclusion

The statute that lets prosecutors appeal evidence suppressed by a trial judge does not grant a right to appeal a judge’s exclusion of evidence under the Virginia Rules of Evidence, the Virginia Court of Appeals says.

A panel of the appeals court dismissed the commonwealth’s appeal of Fairfax Circuit Judge Charles J. Maxfield’s refusal to admit a rape victim’s preliminary hearing testimony, after she died before the case came to trial.

Defendant Charles Albert Massey III was charged with rape and abduction of his former fiancée. She testified at the preliminary hearing that he pinned her down, strangled her until she blacked out, raped her and bound her hands and feet with tape.

On cross-examination, counsel asked the victim about the fact that her sexual relationship with Massey continued after she broke off their engagement, her alcohol abuse, the fact that she stayed with the defendant for 15 days during the month prior to the incident and the fact that their relationship had been mutually violent. The trial judge sustained only one objection from the commonwealth to the defense questions.

The victim died before trial, of a cause not disclosed in the record. The defendant moved to exclude her preliminary hearing testimony, arguing its admission would violate Rule 2:804(b) and the federal constitutional Confrontation Clause.

The trial court excluded the preliminary hearing testimony under Rule 2:804(b), saying the defendant had not had the “right to cross examine completely and fairly,” as required by Rule 2:804(b)(1).

In an unpublished opinion released July 25, the panel dismissed the commonwealth’s appeal under Va. Code § 19.2-398(A)(2). The prosecution’s right to appeal suppressed evidence did not allow appeals from all allegedly erroneous pretrial rulings by a trial judge, wrote Judge Stephen G. McCullough for a unanimous panel.

Allowing the appeal to proceed “would require this Court to read into the statute a basis for appeal that the General Assembly has chosen not to include,” McCullough said in Commonwealth v. Massey.

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